By Vox Civis
The dust has settled, for the moment, over the legal battle surrounding the National People’s Power (NPP) government’s 22nd Amendment to the Constitution. Sixty-seven petitions were filed against it – the largest number ever lodged against a single constitutional amendment in Sri Lanka’s history – and the Supreme Court has now heard them in a matter of two days, closed the hearing, and is to send its confidential determination on to the Speaker. In the narrow sense, the NPP government has cleared the hurdle it needed to clear.
But a battle won in court is not the same thing as an argument won in the country. The NPP appears to have realised this and is the reason that it is moving heaven and earth to avoid the prospect of having to face the people at a referendum. But there is a real possibility that in its haste to get this amendment past the bench, the NPP has done lasting damage to the case it was trying to make; and to something more valuable than the amendment itself.
Start with the government’s own justification. Ministers have argued, correctly, that Sri Lanka’s courts are groaning under roughly 1.2 million pending cases, and that retaining experienced judges is essential to clearing that backlog. It is a reasonable-sounding argument, but one that dissipates on contact with the numbers.
The overwhelming majority of that backlog sits in the Magistrates’ Courts, District Courts and High Courts, not in the Supreme Court or the Court of Appeal. Therefore, raising the retirement age of a Supreme Court judge from 65 to 67, or a Court of Appeal judge from 63 to 65, does essentially nothing to unclog a magistrate’s case list in Kurunegala or Batticaloa. If the government were serious about the backlog, it would be hiring more magistrates, building more courtrooms, and beefing up the legal eco system, not simply adjusting the tenure of the 13 sitting judges of the apex court as the first course of action.
Mismatch of intent
That mismatch between stated cause and actual effect is precisely what has given the opposition’s counter-narrative its traction: that this amendment was never really about efficiency, but about keeping the current Chief Justice, Preethi Padman Surasena, in office for a further two years, and about the composition of a court that will go on hearing politically sensitive cases for years to come.
The government has not helped itself here. As the case was pending, the President and senior ministers were already dismissing the need for a referendum, and the Justice Minister had at various points offered shifting and inconsistent accounts of the Bill’s scope and origins, only for the substance to be confirmed by the very gazette his own Ministry issued. It is difficult to reconcile a government that treats the outcome as a foregone conclusion with one that insists it is simply awaiting the Court’s independent judgment.
The seniority question makes the “experience” argument harder still to sustain. In the weeks before the hearing, the most senior judge of the Court of Appeal, Justice Dhammika Ganepola, retired without ever being elevated to the Supreme Court, even though his promotion had reportedly been recommended by the previous Chief Justice and four vacancies on the apex court remain unfilled to this day.
Meanwhile, one of the government’s own recent appointees to the Supreme Court – elevated from the Court of Appeal only last December, over the heads of more senior colleagues – was subsequently even entrusted by the President with the chairmanship of a Presidential Commission of Inquiry, and now sits on the five-judge bench that heard the constitutional challenge to the very amendment that would extend his own colleagues’ tenure. None of this proves an improper arrangement, but it is the kind of pattern that makes it impossible for the government to argue, with a straight face, that this reform is about institutional experience rather than institutional convenience.
It is the sovereign that’s supreme
Underlying all of this is a constitutional principle that the government would do well to take more seriously than it appears to have done. Article 3 of the Constitution vests sovereignty in the people, inalienably, and Article 4 describes how that sovereignty is exercised; including through the judicial power exercised by courts on the people’s behalf. Because Article 3 is entrenched under Article 83, any bill inconsistent with it requires not just a two-thirds parliamentary majority but a referendum.
The Supreme Court itself, in its 2022 determination on the Inland Revenue Amendment Bill, took the view that a constitutional change to judges’ tenure or retirement age, where it affects sitting judges rather than only future appointees, touches judicial independence closely enough to implicate Article 3. The preamble to the Constitution goes further still, describing the independence of the judiciary – alongside representative democracy, equality and fundamental rights – as part of the nation’s “immutable” and intangible heritage.
That is not decorative language. It signals that judicial independence was meant to sit beyond the ordinary reach of a parliamentary majority, however large, because a court that depends on the government’s goodwill for its judges’ tenure is not fully able to judge that government.
Sri Lanka’s own judicial history bears this out. When serious constitutional questions have arisen before – questions touching the tenure of judges themselves, the structure of the state, or the survival of Parliament – the tendency has been to enlarge the bench, not narrow it. In 1983, when the Sixth Amendment’s oath requirements raised doubts about whether judges had vacated their offices, a nine-judge bench under Chief Justice Neville Samarakoon heard the matter.
In 1987, when the 13th Amendment and the devolution of power to provincial councils came before the Court, Chief Justice Sharvananda convened all nine judges then sitting. In 2013, when the removal of Chief Justice Shirani Bandaranayake and the appointment of Mohan Peiris were challenged, a nine-judge bench indicated the matter should go before a full bench.
In 2014, when President Mahinda Rajapaksa sought the Court’s opinion on a third term, all 10 available judges considered the question, even though the Constitution required only five. And in 2018, amid the constitutional crisis over the dissolution of Parliament, Chief Justice Nalin Perera convened seven judges, who unanimously found the dissolution unlawful. The pattern is unmistakable: the gravity of a constitutional question has historically been met with the weight of a larger bench.
Not-so-great optics
Measured against that history, the handling of this case stands out – and not favourably. The petitioners asked for the full Supreme Court to sit, so that no one could later say the bench had been selected to produce a particular result. The request was refused, and refused, in the Court’s own words, without any reason being assigned. The five-judge panel that was appointed passed over four judges senior to several of its members, while including the Chief Justice himself – a Chief Justice whose own remaining tenure stands to be extended by the very amendment under challenge.
There is an even sharper reference point here than the general historical pattern. In an earlier, similarly controversial case brought against Chief Justice Sarath Nanda Silva, out of 11 Supreme Court judges then sitting, Silva appointed a seven-judge bench that excluded several senior judges – but he excluded himself from it. Whatever one thinks of that precedent, it at least paid lip service to the principle that no one should judge their own cause. This time, that principle was not observed even that far.
The procedural conduct of the hearing itself compounded the problem. After the Solicitor General concluded the state’s submissions on 2 September, counsel for the petitioners sought to exercise their right of reply – the ordinary opportunity to respond to the arguments just made against them – and were refused. Instead, they were ordered to submit written submissions by 3pm the next day. This decision was frowned upon by the Commonwealth Lawyers Association President, Steven Thiru who was observing the proceedings. He later described the episode as “unusual and unfortunate.”
The following day, the Bar Association of Sri Lanka (BASL) informed the Court in writing that, in light of that refusal, it would not be filing its post-hearing written submissions; most of the other petitioners followed its lead. It is hard to overstate how unusual this is: written submissions are ordinarily the last word in a case; the argument lawyers fight hardest to get on the record because it outlives the hearing itself.
Negative reaction
The reaction was not confined to Colombo. Steven Thiru who attended the hearing later told reporters that members of the Bar had raised serious concerns about why a case of this significance had not been assigned to a larger or full bench, and why a request for one had been rejected. Earlier, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, separately warned that extending the retirement age of judges already sitting, rather than only those appointed in future, risked compromising judicial independence and the separation of powers.
The government’s response – that the amendment is designed to build capacity for an expanding judiciary and contains safeguards against any executive attempt to reward or punish judges over their rulings, deserves to be recorded as its own case, and it is not a frivolous one; access to justice genuinely does require more judges and more courtrooms. But a safeguard against future misuse is a different thing from a demonstration that the present arrangement was arrived at fairly, and it does not answer why the reform needed to apply to judges already on the bench rather than to their successors.
None of this occurs in a political vacuum, and it would be a mistake to treat the criticism as though it comes only from a defeated parliamentary opposition. President Anura Kumara Dissanayake was elected with just 42 per cent of the valid vote, meaning a majority of voters who went to the polls did not choose him. When a large section of the public questions decisions taken in his government’s name, that is not a fringe reaction; it is the ordinary democratic voice of people who did not cast their ballot for this administration, and governing well means listening to them too, not filing every objection under the heading of political opposition.
The last barrier
There is also a more immediate arithmetic at play. The amendment still needs a two-thirds majority in Parliament, and there is a more liberal, constitutionally cautious wing within the NPP itself associated with Prime Minister Harini Amarasuriya that has so far stayed conspicuously quiet through the debate. Should enough of that wing abstain, the amendment could yet fail at the only stage that finally matters.
Sri Lanka’s creditors and trading partners are watching as well; the government’s continuing need for IMF cooperation and GSP+ trade concessions gives the country’s Western interlocutors real, if indirect, leverage over how this episode is ultimately read abroad.
It is worth naming plainly what is really at stake in all of this, because it is easy to lose the principle in the procedural detail. Natural justice rests on two simple rules: that all sides to a dispute should be heard, and that no one should sit in judgment of their own case. Both were tested in this hearing, and by most accounts, both came up short.
A court that will not sit in full to decide a question about its own composition, a hearing in which a right of reply refused, and a Chief Justice ruling on a matter that bears on his own tenure without explaining why he saw no need to step aside, are not minor irregularities. They are the specific things that natural justice exists to prevent, and their presence here is why so many people who have no particular loyalty to any political party have found themselves troubled by this case.
Lawyers have protested against benches before – Pakistan’s bar took to the streets to restore a sacked Chief Justice, Sri Lanka’s own lawyers wore black to defend Shirani Bandaranayake against a politically driven impeachment, while Nepal’s bar besieged its Supreme Court, India’s have periodically boycotted proceedings. But the BASL turning the written submission itself – the very instrument through which a bar makes its case – into a form of protest by withholding it appears to be without precedent anywhere in the world. It is a bar declining to dignify a process with the one thing that process asked of it, and it is difficult to read as anything other than a rebuke.
The NPP government may, in the coming weeks, get its amendment through Parliament. It may even be right that the country’s expanding judiciary needs more experienced judges to staff it. But it will have done so having demonstrated, through its own conduct and the conduct of the court it relied upon, exactly the kind of institutional self-dealing that critics accused it of; and having provoked the country’s lawyers into an act of protest with no precedent in this country’s history or, as far as anyone can tell, in the wider common law world.
Judgments handed down by five judges can settle a case, but they cannot, on their own, settle a question of legitimacy that ultimately belongs to the sovereign people the Constitution says it answers to. The NPP may be about to win this particular battle, but whether it has just lost the larger argument over whether this country’s institutions still answer to the public rather than to the government of the day is a question only the public, in time, will get to answer. And, that time will surely come.
Disclaimer: The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication.
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