By The Pulseline News Desk
The Attorney General’s (AG’s) side has told the Supreme Court that its role in examining the Government’s proposed constitutional amendments is strictly defined by Article 120 of the Constitution, arguing that the Court is not empowered to speculate on what might happen as a result of the proposed changes.
Solicitor General, appearing for the Attorney General, had begun submissions at around 3.30 p.m. yesterday (2), explaining the two proposed amendments before the Court.
He had outlined the changes as including an increase in the number of Court of Appeal judges, an increase in the number of High Courts and High Court judges, and an overall increase in the retirement age of judges.
At the outset, the Solicitor General had stressed that the Supreme Court’s function in the present proceedings is to determine the constitutionality of the two Bills.
He had referred the Court to Article 120 of the Constitution, which gives the Supreme Court the exclusive jurisdiction to determine whether a Bill or any provision of a Bill is inconsistent with the Constitution.
The Attorney General’s position is that once a constitutional challenge is brought against a Bill, the Supreme Court must examine it within the framework provided by Article 120.
‘No other option’
The Solicitor General had argued that the Court’s role is not to consider hypothetical outcomes or predict what could happen if the proposed amendments become law.
The Supreme Court, he had stressed, is required to make a constitutional determination rather than a prediction.
This argument is particularly significant in the context of the petitioners’ concerns that extending the retirement age of sitting judges could affect the composition or independence of the judiciary.
The Government’s position, as outlined in Court, is that such questions must be assessed within the constitutional jurisdiction specifically granted to the Supreme Court.
Referendum question
The Solicitor General had also drawn attention to the proviso to Article 120 relating to Bills expressly intended to amend, repeal or replace the Constitution.
Under that framework, the Court’s task is limited to determining whether the proposed constitutional amendment requires approval by the People at a referendum under Article 83, in addition to the required two-thirds majority in Parliament.
The argument effectively places the referendum question at the centre of the Court’s constitutional review.
The Court is therefore not being asked, according to the Attorney General’s position, to determine whether the proposed reforms are politically desirable or whether they could produce particular consequences in the future.
Its task is to determine whether the Constitution requires the additional safeguard of a referendum.
Constitution does not require consultation
The Solicitor General had also argued that the Constitution does not require a separate consultative process before such an amendment is introduced.
This directly addresses one of the major criticisms levelled against the proposed changes — that the Government should have undertaken wider consultation with the legal profession, civil society and other stakeholders before moving to amend judicial tenure.
The Government’s position is that while consultation may form part of the constitutional practice of other countries, it is not a constitutional prerequisite in Sri Lanka.
South Africa was cited as an example where the Constitution contains provisions providing for a consultative process.
The distinction is likely to be important as the Court considers arguments that the manner in which the proposed amendment was introduced should itself influence the constitutional determination.
A battle over Court’s role
The competing arguments before the Supreme Court now reveal a fundamental difference over the scope of constitutional review.
The petitioners have urged the Court to examine the wider implications of changing the tenure of sitting judges, including its potential impact on judicial independence, separation of powers and the sovereignty of the People.
The Attorney General’s side is urging a narrower approach: determine what the Constitution actually requires, rather than assess hypothetical consequences or impose procedural requirements that are not expressly found in the Constitution.
The Court is therefore being asked to settle not only whether the proposed amendments can proceed, but also the boundaries of its own constitutional role in reviewing legislation designed to amend the Constitution.
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