Petitions challenging 22A mounts as govt. digs its heels in

By Counterpoint Political DesK

The ongoing controversy over the 22nd Constitutional Amendment Bill (22A) has brought about a public debate over the independence and integrity of the judiciary. The immediate cause of this debate is the government’s all-out efforts to increase the retirement age of judges, claiming that it was aiming to clear a backlog of cases and expedite the administration of justice. President Anura Kumara Dissanayake told the Bar Association of Sri Lanka (BASL) at a recent meeting that he was prepared to take any risk to increase the retirement age of judges.

President Dissanayake’s statement deserves very serious consideration. It is not easy to find a simple answer to the question of why he is prepared to take such a risk.

Opposition mounts but govt. determined

All the major political parties in Sri Lanka, with the exception of the JVP and the NPP, are strongly opposed to what the government is seeking to do. The Mahanayake Theras of all three Nikayas have also expressed their opposition to the government move. The BASL, the Judicial Service Association, the International Judges' Association, the Anglican Church, , the Commonwealth Lawyers Association, LAWASIA, and the United Nations, among many others, have opposed the proposed plan to raise the retirement ages of the Supreme Court (SC) and Court of Appeal (CA) judges. Their position is that the retirement ages of the SC and CA judges have been set by the Constitution at 65 and 63, respectively, under the title ‘the independence of the judiciary’ and therefore they cannot be changed without a referendum.

It has been pointed out by the opponent of 22A that The SC has twice articulated or reaffirmed the principle that a constitutional amendment altering the retirement age or period of office of incumbent Supreme Court or Court of Appeal judges would affect judicial independence and engage Article 3, thereby requiring a referendum. The principle was expressly stated in the 2022 Inland Revenue (Amendment) Bill determination and reaffirmed in a subsequent SC judgement. This has been the position of independent legal professionals as well. They have warned that 22A will lead to a

conflict of interest on the part of the incumbent judges who are to hear the petitions challenging it. They have argued that 22A has to be placed before the people at a referendum.

Yet President Dissanayake says that, regardless of what anyone says, he is prepared to take whatever risk is necessary to carry out the proposed change. In a letter sent in response to the United Nations, the government has also stated that it intends to proceed with the measure.

At the time of writing, as many as 23 petitions had been filed before the Supreme Court challenging the 22nd Amendment. Only one of them, filed by a government MP and Deputy Minister Sunil Watagala, supports the amendment.

NPP's strange silence

The President and Minister of Justice Harshana Nanayakkara have made various statements on the issue from time to time. But all the leading figures of the NPP, headed by the Prime Minister, have remained silent. In fact, the Opposition has pointed this out.

Some senior Opposition politicians say there is also no consensus within the government itself over the proposed amendment 22A. Some even suggest that the Prime Minister's failure so far to make any statement on 22A is itself an indication of her opposition to it.

A lawyer MP representing the Colombo District reportedly asked at the Pelawatte office the other day whether the amendment could be withdrawn. But following a strong response from the party leadership, the MP too fell silent.

Opposition to 22A also comes from some of those who ardently supported the JVP-led NPP before the 2024 presidential election and parliamentary polls. Among them is journalist Uvindu Kulukulasuriya, in London and known to be an erstwhile friend of President Dissanayake

Senior Opposition politicians accusing the government over the matter say the amendment is primarily an attempt to extend the tenure of incumbent Chief Justice Preethi Padman Surasena, who is due to retire in December this year.

The government, however, has denied this claim, insisting that the sole reason for embarking on the exercise is to expedite the hearing and disposal of the 11,000 cases currently pending in courts throughout the country. The BASL and the Opposition have pointed out that more than 96% of these cases are pending before the High Courts (HCs), the District Courts (DCs) and the Magistrates’ Courts (MCs), and there is absolutely no need to increase the retirement ages of the SC and CA judges. Interestingly, there has been no opposition as such to the Judicature (Amendment) Bill, which seeks to increase the retirement ages of the judges of the HCs, DCs and MCs.

Vasudeva backs govt. move

The BASL and other organisations that reject this argument ask a simple question: How would increasing the retirement age of judges help expedite cases?

In this debate, one of the oldest politicians in the Opposition, Vasudeva Nanayakkara, who is also the uncle of the Minister of Justice, has come out in support of the government.

According to Vasudeva, the proposed amendment poses no threat whatsoever to the independence of the judiciary. He has also said that even if the matter were put to a referendum, the

people would approve it.

He has further pointed out that those who question the independence of the Supreme Court proceedings in this matter have themselves filed their petitions before the Supreme Court.

Since, under the existing Constitution, it is the Supreme Court alone that can determine the matter, Vasudeva Nanayakkara has particularly stressed that the Court should be trusted rather than being viewed with suspicion in advance.

Law or justice?

Whatever politicians may say, law and justice are two different concepts. Justice, as well as law, must be reflected in the judicial process. This responsibility becomes even more serious when dealing with an issue that has generated such deep divisions and opposition.

While examining earlier judgments, we came across two particularly significant observations relevant to this matter.

The first was made by Sir Alan Rose, the last British Chief Justice of Sri Lanka. According to him:

“The independence of the judiciary is secured not by the wishes of the government or the Executive, but solely by the strict adherence to the rule of law. A judge must deliver judgments not to please the rulers but in accordance with the law.”

The second observation was made by one of Sri Lanka's distinguished Chief Justices, H. N. G. Fernando: “It is the function of the judiciary to examine whether a discrimination arises from the practical effect of an enactment, rather than merely from the words that appear on its face.”

This was stated in the judgment in Kodikam Pillai v. Mudannayake.

The Supreme Court's decisive hearing

As Chief Justice Fernando's observation suggests, those who have filed petitions against 22A believe that, beyond what appears on the surface, there is another practical problem involved.

What they imply, without saying so directly, is that the privilege being granted to judges is intended to create a judiciary sympathetic to the government. The Opposition suspects that such a judiciary could, at some point, be used to suppress political parties opposed to the government.

At the same time, they argue that the sole purpose of the amendment is to extend the tenure of the incumbent Chief Justice Surasena.

Petitions challenging the matter may be filed in court until the first of next month. Many of the parties that have already filed petitions have requested that a full bench of judges be appointed to hear the case.

It is also reported that almost all of Sri Lanka's leading President's Counsel are due to appear before the Supreme Court representing different parties in the case.

However, the final decision on the composition of the bench that will hear the case rests with the Chief Justice himself.

Constitutionally, the determination in the case must be communicated to the President and the

Speaker within three weeks from the first of next month, that is, before the 21st.

The Parliament record confirms the basic procedural framework: The Bill was presented for First Reading on August 18, after which parties seeking to challenge its constitutionality were given 14 days to petition the Supreme Court, with the Court required to communicate its determination to the Speaker within 21 days.

What lawyers of Janawarama say

Meanwhile, senior lawyers belonging to a pro-government lawyers' organisation called Janawarama Lawyers held a special media briefing.

President's Counsel Mohan Weerakoon, who attended the briefing, said that the proposed constitutional amendment would have no impact whatsoever on the independence of the judiciary.

He also said that various false allegations were being spread targeting the Chief Justice. Referring to a statement made in Parliament by SJB MP Rohini Kaviratne in the parliament concerning the Chief Justice's birthday, he went further to say that a no-confidence motion should be brought against the MP.

However, Varuna Rajapaksa, a senior figure in the SJB media unit, said on social media that he was surprised that a learned President's Counsel had made such a statement apparently without understanding parliamentary tradition, privileges or the Standing Orders.

Rajapaksa further said that there had never been a case in history where a no-confidence motion had been brought against an Opposition Member of Parliament.

The President's final decision

As the debate over the constitutional amendment continued, President Anura Kumara Dissanayake revealed the government's final decision on the matter in an address he made as the guest speaker at a recent event held to commemorate the birth anniversary of Prophet Mohammed.

The President emphatically stated that, under no circumstances, would the government reverse its decision on what he described as proposed judicial reform.

He said the government would act to ensure that all citizens received the benefits of the law equally. He also said that the government would neither suspend nor reverse its programme against all forms of crime, including drug trafficking, because of criticism from the Opposition.

The Bar Association's serious statement

Following the President's statement, the BASL issued a rather serious statement on the proposed constitutional amendment, saying the first beneficiary of the proposed amendment would be the incumbent Chief Justice.

A broad public discourse has developed around the view that the amendment is being introduced for the benefit of the Chief Justice, who is due to retire in December.

The , however, said its opposition to the amendment was based on matters of principle.

The position of the BASL is that judges, like other state officials, must also be subject to accountability and investigation.

Accordingly, if an allegation is made against the Chief Justice or any other judge, the matter should be subjected to an objective investigation.

The process would be more effective if the relevant procedure were followed without engaging in campaigns to vilify the judges concerned.

The statement also said that the organisation was urging the public to act in a manner that would not cause damage to the administration of justice.

Overall, there does not appear to be a broad understanding among ordinary people about the proposed constitutional amendment to increase the retirement age of judges, even though it has become a major topic of political debate. Some people are taking advantage of this lack of public understanding to promote their views about 22A. As a result, the process has become somewhat confusing.