Can Parliament give sitting judges another two years in office, or does that decision belong ultimately to the People?
Sri Lanka’s most consequential constitutional argument in years moved into the Supreme Court yesterday as a five-judge bench began hearing an extraordinary 67 petitions concerning the Government’s proposed 22nd Amendment.
The number itself tells part of the story. Sixty-seven Special Determination petitions have been filed over the proposed amendment, reported as the largest number involving a constitutional amendment in Sri Lanka. Forty-one were filed electronically.
The controversy, however, is not really about whether 65 or 67 is the better retirement age for a Supreme Court judge.
It is about something considerably more important: whether Parliament may change the rules governing judicial tenure and allow that change to benefit judges who are already sitting on the Bench.
The Government’s Bill proposes increasing the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65. It would also provide that the Chief Justice retires upon reaching 67 or after completing six years as Chief Justice, whichever comes first.
There is nothing inherently unconstitutional about Parliament proposing a different retirement age for judges. Legislatures alter retirement ages from time to time.
The constitutional difficulty arises from who gets the benefit of the change.
A law saying that judges appointed after a specified future date shall retire at 67 is one thing. A law which changes the tenure of judges who accepted office under an existing constitutional arrangement is potentially quite another.
That distinction – prospective against retrospective application – now lies close to the heart of the battle before the Supreme Court.
The Court hearing the challenge is headed by Chief Justice Preethi Padman Surasena together with Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath Abeykoon and Gihan Kulatunga.
Before the substantive arguments could properly begin yesterday, however, there was another constitutional elephant in Courtroom 502.
President’s Counsel M.A. Sumanthiran, appearing for the Bar Association of Sri Lanka, asked that the cases be heard by a full bench of the Supreme Court.
Other senior counsel supported the request.
Their difficulty was obvious. The judges were being asked to determine the constitutionality of legislation capable of affecting the tenure of members of their own Court.
The Solicitor General, appearing for the Attorney General, submitted that Article 132(3) leaves the constitution of the bench to the discretion of the Chief Justice.
After considering the submissions, the Court rejected the application. The five judges will hear the cases.
There was another, rather more physical indication of the extraordinary interest surrounding the proceedings.
Courtroom 502 was simply too small.
Lawyers asked that proceedings be transferred to the larger Courtroom 501 because of the numbers attempting to attend. The Court agreed.
Once the constitutional arguments began, the issue rapidly moved beyond retirement ages.
Sumanthiran argued that the amendment engages Articles 3 and 4 of the Constitution – the provisions dealing with the sovereignty of the People and the manner in which that sovereignty is exercised.
His case is that judicial independence forms part of that sovereignty and that legislation interfering with it therefore requires something Parliament cannot provide by itself: the approval of the People at a referendum.
President’s Counsel Ali Sabry, appearing for former Minister Prof. G.L. Peiris, also argued that changing judicial retirement ages can affect judicial independence.
The argument has a potentially uncomfortable symmetry.
If a government may extend the tenure of sitting judges by two years today, what prevents another government from attempting to reduce judicial tenure tomorrow?
That is precisely why security of tenure matters.
Judges must neither fear losing office because politicians dislike them nor contemplate remaining in office because politicians favour them.
The constitutional protection is not designed principally for judges.
It exists for everyone who may one day have to walk into a courtroom and ask a judge to rule against the State.
There is already significant authority confronting the Supreme Court.
In its 2022 determination concerning the Inland Revenue Amendment Bill, the Court considered the constitutional significance of altering judicial tenure. Petitioners challenging 22A are relying heavily upon that determination in arguing that changing the retirement age or period of office in a manner affecting incumbent superior court judges engages judicial independence and therefore Article 3.
That brings the argument back to a deceptively simple distinction.
Parliament makes laws.
But Parliament does not possess the sovereignty of Sri Lanka.
The Constitution says sovereignty is in the People.
Parliament exercises legislative power entrusted to it by those People, subject to the Constitution. And some constitutional changes require not merely a two-thirds majority in Parliament but approval at a referendum.
The Government possesses an overwhelming parliamentary majority. Politically, therefore, obtaining two-thirds may not be its greatest difficulty.
The question before the Supreme Court is whether two-thirds is enough.
If 22A applies only prospectively – to judges appointed after the new constitutional arrangement takes effect – the Government’s constitutional position may be considerably easier to defend.
If it operates to extend the tenure of judges already holding office, the issue becomes altogether different because the amendment potentially changes the constitutional terms under which judicial office is presently held.
That is where procedure meets substance.
A retirement age written into the Constitution is not merely an administrative number. It forms part of the architecture intended to protect judicial independence from political influence.
Changing 65 to 67 requires only two keystrokes.
Changing the constitutional relationship between Parliament and the judiciary is rather more serious.
The Government maintains that increasing retirement ages would retain judicial experience and assist a justice system struggling with delay and an enormous backlog of cases.
Those are legitimate policy objectives.
But a desirable objective does not answer the constitutional question of how it may lawfully be achieved.
Indeed, there is an obvious route which would remove much of the controversy: change the retirement age prospectively.
Future judges would enter office knowing precisely when their tenure ends. No incumbent receives an extension. No government appears to confer additional tenure upon judges already in office. And no sitting judge is placed in the uncomfortable position of deciding whether a constitutional amendment capable of extending judicial tenure is lawful.
Instead, Sri Lanka now has 67 petitions, five Supreme Court judges, some of the country’s most senior lawyers and a constitutional controversy which has travelled well beyond Hulftsdorp.
The Supreme Court must now determine where Parliament’s authority ends and the People’s sovereignty begins.
Be that as it may, two additional years have produced one very large constitutional question: whose years are they to give?
