The Supreme Court has cleared the constitutional route. Parliament has begun the political argument. Tomorrow the numbers will decide whether Sri Lanka changes the retirement age of its senior judges – but the larger question about judicial independence will not disappear with the vote.
Sri Lanka’s Twenty-Second Amendment has reached the point where constitutional argument becomes parliamentary arithmetic. The two-day Second Reading debate began yesterday and is scheduled to conclude today, with Parliament expected to vote on legislation that would change the retirement arrangements applying to judges of the country’s superior courts.
The Supreme Court has already answered one of the most consequential questions surrounding the Bill. It determined that neither the Twenty-Second Amendment nor any part of it requires approval by the people at a referendum under Article 83 of the Constitution. The Court also determined that the accompanying Judicature (Amendment) Bill is not inconsistent with the Constitution and may be passed by a simple majority.
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That is constitutionally important. It is not, however, the same thing as saying that Parliament no longer has important policy choices to make.
The proposed constitutional change would raise the retirement age of Supreme Court judges, while the parallel Judicature amendment deals with the Court of Appeal. The Supreme Court determination also required changes to the wording of the constitutional Bill, including clarification of the point at which the new age limit operates and an exception concerning the person holding office as Chief Justice when the legislation comes into force.
The Government can therefore proceed without sending the question to the electorate. But that simply transfers the responsibility squarely to Parliament.
The Bar Association of Sri Lanka has urged political parties to allow their MPs to vote according to conscience. The Opposition has continued its campaign against the proposal, with the SJB staging a protest near Parliament yesterday. Those are political and professional positions rather than constitutional determinations, and they should not be confused with what the Supreme Court actually decided.
The distinction matters.
A court considering a Bill before enactment answers constitutional questions placed before it. Parliament must then decide whether legislation that can constitutionally be enacted should be enacted in the form proposed. Those are different responsibilities.
There is also a wider institutional issue that will survive tomorrow’s division bell. Changes affecting judges who are already serving can create questions different from changes applying only to future judicial appointments. Supporters can argue that retaining experienced judges strengthens the courts and brings Sri Lanka closer to retirement ages found elsewhere. Critics can question whether changing tenure arrangements while particular judges are already in office risks creating an appearance that Parliament is altering the composition or duration of the existing judiciary.
Neither proposition should be settled by slogans.
That is why tomorrow’s vote deserves to be judged on more than whether the Government possesses enough MPs to carry it. With its parliamentary strength, the administration approaches the division from a position of numerical power. The more demanding test is whether Parliament can demonstrate a principled institutional reason for changing judicial retirement ages now, and whether adequate safeguards exist against future governments manipulating judicial tenure for political convenience.
Constitutions are written for governments we trust and governments we may not.
That may ultimately be the more enduring question surrounding 22A. Parliament is not merely deciding how long individual judges may remain on the Bench. It is helping establish a rule that future administrations may inherit and use.
The Supreme Court has now told Parliament what the Constitution permits. Today Parliament must decide what precedent it wants to leave behind.
And those are not quite the same question.
