Judges’ retirement-age amendment moves forward despite objections from the Bar, Opposition and UN as August 18 becomes the next constitutional battleground
COLOMBO, Friday – The Government will present the proposed 22nd Amendment to the Constitution to Parliament on Tuesday, August 18, pressing ahead with its controversial plan to extend the retirement ages of superior court judges despite mounting objections from sections of the legal profession, political Opposition and the United Nations mandate holder on judicial independence.
Justice and National Integration Minister Harshana Nanayakkara confirmed that the constitutional amendment and the accompanying Judicial Organisations Amendment Bill will be presented to Parliament on Tuesday, establishing the next formal stage in a debate that has moved rapidly from Cabinet approval to one of the most closely watched constitutional issues of the year.
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The Government proposes extending the retirement ages of judges of the Supreme Court and Court of Appeal, arguing that retaining experienced judges forms part of a wider programme to improve the administration of justice. President Anura Kumara Dissanayake has maintained that the proposal was not designed to benefit any particular individual or group but was conceived in the broader public interest.
The Bar Association of Sri Lanka has taken a more nuanced position. While indicating that it does not object in principle to reviewing judicial retirement ages, the organised Bar has expressed serious reservations over the present proposal and particularly its application to judges already serving on the superior courts.
Those concerns have now acquired an international dimension. UN Special Rapporteur on the independence of judges and lawyers Margaret Satterthwaite has questioned the implications of changing the tenure of incumbent judges and raised concerns about actual or perceived conflicts should judges who stand to benefit from the amendment subsequently be required to determine its constitutionality.
Opposition Leader Sajith Premadasa has meanwhile called for the proposal to be submitted to the People at a referendum, bringing the constitutional threshold required to enact the amendment firmly into the political debate.
The Bill’s presentation to Parliament will not settle that issue. Once placed on the Order Paper, the Constitution provides a window during which its constitutionality may be challenged before the Supreme Court. The Court would then determine what parliamentary majority is required and whether any provision also requires approval by the People at a referendum.
That prospect produces an unusual constitutional difficulty. If the amendment applies immediately to incumbent judges, members of the very institution whose tenure may be affected could be called upon to determine the constitutional requirements governing the proposal.
Tuesday therefore marks considerably more than another parliamentary sitting. It moves the Government from defending its proposal politically to formally testing whether it can navigate the constitutional safeguards surrounding one of the Republic’s most important institutions.
