THIRTEEN CHALLENGES, A CALL FOR A REFERENDUM – AND A GOVERNMENT WITH THE NUMBERS BUT NOT YET THE ANSWER
The battle over Sri Lanka’s proposed 22nd Amendment has moved from Parliament to the place where the Constitution says such questions must ultimately be tested: the Supreme Court.
At least thirteen challenges have now been filed against legislation that would extend the retirement ages of judges of the Supreme Court and Court of Appeal by two years while also expanding the Court of Appeal.
Submit Your Press Release
Get your company news, announcements, launches, appointments and events in front of a wider audience.
The political temperature has risen accordingly.
The Ilankai Tamil Arasu Kachchi has now called for the proposed amendment to be submitted to the people at a referendum. Opposition MPs have attacked the legislation in Parliament, while the Government maintains that the changes are intended to strengthen the administration of justice and address pressures within the judicial system.
But the central issue has become considerably larger than whether a judge should retire at 63, 65 or 67.
It is whether Parliament may change the constitutional rules governing judicial tenure in a manner that benefits judges who already hold office – and whether doing so affects constitutional protections sufficiently seriously to require approval by the people themselves.
That is precisely why the Supreme Court proceedings matter.
The NPP Government possesses an enormous parliamentary majority. Constitutionally, however, parliamentary arithmetic and constitutional authority are not necessarily the same thing.
A two-thirds majority can accomplish a great deal.
It cannot, by itself, accomplish everything.
Certain constitutional changes require the additional approval of the sovereign people at a referendum. The petitioners will therefore attempt to persuade the Supreme Court that the proposed amendment crosses that line.
There is another question which NewsLine believes deserves particular scrutiny: retroactivity.
Changing the retirement age prospectively for judges appointed after the law takes effect is one thing. Extending the tenure of judges who accepted appointment under an existing constitutional retirement regime is another.
That distinction is likely to sit near the heart of the controversy.
The Government must nevertheless be given its full constitutional entitlement to defend the legislation. Judicial reform is not automatically judicial interference, any more than opposition to legislation automatically makes its opponents defenders of democracy.
The Supreme Court must determine the law.
And therein lies the beauty – and occasionally the inconvenience – of constitutional government.
Winning an election gives a government authority to govern.
Winning two-thirds of Parliament gives it extraordinary legislative power.
Neither provides ownership of the Constitution.
Be that as it may, governments come and governments go. Majorities grow and majorities disappear. The Constitution is deliberately more difficult to move.
For now, Parliament has spoken. The petitioners have spoken. The politicians have certainly spoken.
Perhaps it is time for everyone else to be quiet.
Let the Supreme Court speak.
