Five judges have heard 67 challenges. The Supreme Court’s determination now goes to Parliament – as international legal attention turns to the bench itself
The lawyers have spoken, the petitions have been heard and the written-submission deadline has expired.
Sri Lanka now waits for the Supreme Court.
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The Court has concluded its hearing of the extraordinary 67 petitions challenging the proposed 22nd Amendment to the Constitution, legislation which seeks to extend the retirement age of judges of the Supreme Court and Court of Appeal by two years.
The cases were heard by a five-member bench headed by Chief Justice Preethi Padman Surasena together with Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath B. Abayakoon and Gihan Kulatunga.
At the beginning of proceedings, several senior President’s Counsel asked that the constitutional challenges be heard by a full bench of the Supreme Court.
That application was refused.
The Chief Justice said the discretion over the composition and number of judges sitting on a Supreme Court bench rested with the Chief Justice under Article 132(3) of the Constitution.
The hearings proceeded before the five judges.
Now that decision itself has attracted international legal attention.
Steven Thiru, President of the Commonwealth Lawyers’ Association, who attended the proceedings as an observer, has publicly raised questions about why a larger or full bench was not constituted given the constitutional importance of the case and its implications for judicial independence.
His intervention should not be exaggerated. Nor should it be dismissed.
The number of judges hearing a case does not determine whether the eventual judgment is correct. The Constitution provides the legal framework governing the constitution of Supreme Court benches and the Court has already ruled upon the application seeking a full bench.
But 22A is unusual for a reason that has existed from the beginning.
The judges are being asked to determine the constitutionality of legislation which potentially affects the tenure of judges themselves.
That makes public confidence in the process almost as important as the eventual legal answer.
The controversy is no longer confined to lawyers either.
Forty professional organisations and trade unions have joined the Bar Association of Sri Lanka in opposing the proposed amendment, while opposition parties and activists demonstrated in Colombo on Thursday against the Government’s proposal.
The Government’s position is that increasing judicial retirement ages and expanding the Superior Courts will improve efficiency and help address delays.
Its opponents argue that changing the retirement age in a manner capable of benefiting judges already holding office creates a fundamentally different constitutional problem.
That is the question NewsLine has repeatedly examined: whether Parliament may prospectively alter the retirement age applying to future judicial appointments, and whether extending the tenure of judges already appointed under an existing constitutional retirement age crosses a constitutional boundary requiring the approval of the People.
The Supreme Court has now heard those arguments.
Its determination will be communicated to the Speaker and subsequently announced to Parliament in accordance with the constitutional process.
Until then, speculation about how the five judges will decide serves little purpose.
What matters now is something larger.
Sixty-seven petitioners came before the country’s highest court asking it to determine the constitutional limits of Parliament’s power over judicial tenure.
The Government defended its legislation.
The Bar made its arguments.
The Court heard them.
Now Sri Lanka waits for five judges to answer a question which reaches directly into the relationship between Parliament, the Judiciary and the sovereignty of the People.
Whatever that answer is, it will travel considerably further than the retirement date of any individual judge.
Be that as it may.
The Johnston details – including the alleged Rs 7,973,114.50 loss, CIABOC’s request for remand, the Magistrate’s finding that sufficient grounds to refuse bail had not been shown, Rs 2.5 million bail bonds and the November 17 next date – are confirmed in today’s court reporting. The 22A hearing involved 67 petitions before the five-member bench, while Commonwealth Lawyers’ Association President Steven Thiru has now publicly raised concerns over the refusal to constitute a larger bench.
