22nd Amendment: A huge political gamble for govt.

By Vishvanath

The JVP-led government has crossed the point of no return in its efforts to extend the retirement ages of the judges of the Supreme Court and the Court of Appeal through a constitutional amendment.  It presented the Bill of 22nd Amendment to the Constitution to the parliament on Tuesday (18) amid a howl of protests by the Opposition, which insisted that the government move was aimed at bringing the judicial system under the Executive.

The 22nd Amendment seeks to increase the mandatory retirement ages of the Court of Appeal judges from 63 to 65 and that of the Supreme Court judges from 65 to 67.  The Judicature (Amendment) Bill seeks to increase the retirement ages of the judges of the High Court by two years to 63 and that of the District Court Judges and Magistrates by two years to 62.

There have been more than 40 petitions against the 22nd Amendment Bill, so far, and former Minister of Justice Prof. G. L. Peiris, addressing the media, on Thursday, demanded that all serving Supreme Court judges, numbering 13 (with four unfilled vacancies) hear the petitions. This will be the position of most petitioners.

There are arguments for and against the draft 22nd Amendment and they can be broadly divided into two categories—legal and political.

The government move has run into stiff resistance from legal professionals and international organizations, such as the UN, the International Association of Judges, the Commonwealth Lawyers Association, LAWASIA and the French National  Bar Council, because it seeks to amend Article 107 of the Constitution, which has set the retirement ages of the Supreme Court judges at 65 and that of the Court of Appeal judges at 63, respectively. In 2022, two Supreme Court determinations made it clear that a revision of the retirement ages of the superior court judges, stipulated in the Constitution, is violative of Article 3 of the Constitution (People’s Sovereignty) and therefore required a referendum. Above all, Article 107 of the Constitution specifying the judges’ retirement ages has been listed under “Independence of the Judiciary”. It is this Article and its specific placement that the Bar Association of Sri Lanka (BASL) has based its arguments on. The BASL has been able to convince international legal associations that the 22nd Amendment, if passed in its current form, will undermine judicial independence. All these organizations insist that any revision of the constitutionally stipulated ages must not apply to the serving judges.  

In short, the opponents of the draft 22nd Amendment have argued that their objections are not principally to a higher retirement age for judges and instead they are opposed to changing the constitutionally guaranteed tenure of sitting judges in a manner that immediately benefits identifiable members of the superior courts, without demonstrating a compelling institutional necessity and without adequate consultation or safeguards against conflicts of interest. They are of the view that if 22nd Amendment becomes law without people’s approval at a referendum, it will set a very dangerous precedent; future governments with two-thirds majorities will change the judges’ retirement ages, according to their whims and fancies. The United Nations Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite’s, in a 7 August communication, has effectively elevated the issue from a domestic political controversy to one involving international standards on judicial independence and fair trial rights. She has specifically asked the government why the proposed retirement increases are intended to apply to currently serving judges rather than only to judges to be appointed in the future.

The government is peddling political arguments in a bid to justify its controversial move. It first sought to extend the tenures of only the Supreme Court and Court of Appeal judges, but when resistance grew, it undertook to increase the retirement ages of all judges, claiming that experienced judges have to be retained to administer justice expeditiously. Its arguments have struck a responsive chord only with its apologists, who demand that the government do everything in its power to bring the corrupt among the former rulers to justice fast. But legal experts including BASL members have pointed out that increasing the retirement ages of the superior court judges will not help clear the massive case backlog, and two experienced Court of Appeal judges have had to retire during the past couple of months because the unfilled four vacancies in the Supreme Court stood in the way of their promotions. The country has thus lost the services of two Court of Appeal judges, who would have been able to serve for two more years if the government had filled the Supreme Court vacancies, the BASL has argued.

One of the main political arguments the government has put forth in support of its effort to increase judges’ retirement ages is that resistance to its move comes from former rulers facing legal action and their apologists. However, among those who have opposed the 22nd Amendment are legal experts who have supported the JVP-led NPP, including Lal Wijenayake and Rienzie Arsakularatne, the four Mahanayake Theras of the three Nikayas, and the aforesaid international legal associations.  The Opposition keeps on asking whether the prelates and international jurists are also supporters for the former Sri Lankan leaders.

The BASL members have pointed out that more than 96% of about 1.1 million outstanding cases are before the High Courts, District Court and the Magistrates’ Courts and there is no need for an increase in the retirement ages of the Supreme Court and Appeal Court judges. They have been urging President Anura Kumara Dissanayake to fill the existing vacancies, numbering four each, in the Supreme Court and the Court of Appeal. The Judicial Service Association representing District Court Judges and Magistrates has opposed the proposed extension of judges’ retirement ages.

The BASL has effectively countered an argument put forth by President Dissanayake that he has not filled the vacancies in the Supreme Court and the Court of Appeal due to the Easter Sunday case pending before the High Court. At a meeting with a group of BASL representatives on 12 August, President Dissanayake the case involved approximately 23,000 charges and 3,000 witnesses, and the most senior High Court (HC) judge was on the three-member HC bench hearing it. He said he was of the view that the judge concerned deserved to be appointed to the CA, but he was mindful of the potential impact that such an appointment could have on the case, which was nearing conclusion. It also had to be taken into consideration whether having that judge continue to sit on such a significant case could place him at a disadvantage, the President argued. However, the BASL members have disputed the President’s claim, pointing out that two HC judges were promoted while they were hearing the Easter Sunday case, but their elevation to the Court of Appeal did not impact the case at all. According to the BASL, even if a vacancy caused by the promotion of a member of the trial-at-bar remains unfilled, the remaining two judges could continue to hear the case.

The government has taken a huge political gamble at a time when its focus must be on the economy. It has antagonized the local legal fraternity and incurred the opprobrium of international legal associations that have urged the government not to extend the retirement ages of serving judges, especially those in the superior courts.

Now that the 22nd Amendment is before the Supreme Court the judicial examination of the petitions will be under intense international scrutiny.