by Durga Velayudham
The Supreme Court ruling on the 22nd Amendment to the Constitution was placed on the table of Parliament today, bringing one of the most consequential constitutional confrontations of recent years directly into the hands of lawmakers. Speaker Jagath Wickramaratne read the Court’s determination to Parliament, announcing that the proposed 22nd Amendment does not require approval at a referendum and can proceed with the required parliamentary majority, while the accompanying Judicature Amendment can be passed by a simple majority. The parliamentary debate on both Bills is scheduled for September 24 and 25.
There is an uneasy irony in the manner in which this decision has now entered Parliament. The man delivering the Supreme Court’s determination is himself facing a corruption-related complaint being investigated by the Commission to Investigate Allegations of Bribery or Corruption. The complaint was filed by former Deputy Secretary General of Parliament Chaminda Kularatne, and investigators have reportedly obtained documents concerning staff attached to the Speaker’s official residence. These are allegations and an investigation, not a finding of guilt, but the fact that the Speaker is operating under such scrutiny gives the day an unmistakable institutional tension.
And this is precisely why the Supreme Court’s determination deserves to be read as something much larger than a technical ruling about whether judges should retire at 65, 63 or 67. The Court has effectively drawn a constitutional boundary around the relationship between Parliament, the Executive and the judiciary. It has said that an increase in judicial retirement ages, when imposed generally and without executive discretion over individual judges, does not by itself destroy judicial independence. It has rejected the argument that extending the tenure of sitting judges necessarily amounts to an inducement or a legislative bribe. It has also rejected the argument that the institutional interest of the Supreme Court automatically disqualifies the Court from determining the constitutionality of legislation affecting its own judges.
That is the real constitutional significance of the determination. The Court has not said that Parliament can do whatever it wishes with the judiciary. Quite the opposite. Its reasoning establishes a distinction between a general legislative alteration of the structure of judicial tenure and an executive power to reward or retain particular judges. The Court’s discussion of the South African constitutional case is particularly important because it identifies executive discretion as a much more serious threat to independence than a general statutory rule applied equally to judges. The danger, in the Court’s reasoning, lies not simply in a judge receiving a benefit but in the possibility that a political authority could decide which judge receives it.
The Court therefore places considerable weight on the character of the legislative mechanism. The retirement increase applies across the judicial hierarchy rather than being framed as a personal extension for one judge. The proposed changes also increase the permitted number of judges in the Court of Appeal and High Court. The Government’s stated justification has been the retention of experienced judicial personnel and the reduction of delays and backlog. Parliament presented the Bill in August, after which 67 petitions challenging its constitutionality were filed before the Supreme Court.
But the most striking part of the determination is the Court’s treatment of its own position. The petitioners argued that the judges had a personal or institutional interest because they themselves could benefit from the proposed increase in retirement age. The Court answered through the rule of necessity. If an institutional interest of that nature were enough to prevent the Supreme Court from hearing the case, legislation affecting the judiciary could become impossible for the Supreme Court to review. The Court therefore placed the institutional jurisdiction of the Supreme Court above the individual position of the judges who happened to occupy it.
This is an extraordinary constitutional principle because it confirms that the Supreme Court sees itself not merely as another participant in the constitutional system but as the institution that must remain capable of determining the constitutional boundaries of every other institution, even when those boundaries affect its own composition and tenure. That does not establish that the judges were biased. It does, however, expose an unavoidable constitutional paradox. The Court was required to decide whether legislation affecting its own judges threatened judicial independence, while simultaneously deciding whether the judges themselves were disqualified from making that determination. The Court resolved that paradox in favour of institutional necessity.
The Court’s rejection of the court-packing argument is equally important. It reasoned that the incumbent judges had served through governments preceding the present administration and that extending their retirement ages would actually reduce the number of vacancies available for a future government to fill. That is a coherent answer to one particular form of court packing. But it does not logically eliminate every conceivable form of institutional entrenchment. It establishes only that the mechanism contained in this legislation does not, in the Court’s view, demonstrate an attempt to replace judges with politically aligned judges. The distinction matters because constitutional scrutiny should examine the mechanism created by legislation rather than merely the political intentions attributed to its sponsors.
The six-year limit on the Chief Justice’s tenure makes the determination even more revealing. The Court accepted the principle that no individual should exercise the office and its associated powers indefinitely. It therefore treated the limitation as a safeguard against excessive concentration of judicial authority while insisting that the limitation could not retrospectively reduce the tenure of the Chief Justice already in office. The Court consequently required a proviso excluding the incumbent Chief Justice from the new six-year restriction. The message is clear. Structural reform is constitutionally possible, but retrospective interference with an existing judicial tenure is treated as a fundamentally different proposition.
This distinction between increasing and diminishing judicial protection may become one of the most important elements of the determination. The Court repeatedly returns to the proposition that diminution and increase are not the same constitutional act. That principle potentially gives Parliament considerable room to restructure public institutions prospectively, provided that it does not use reform as a mechanism for removing existing constitutional protections or giving an executive authority arbitrary control over individual office-holders.
The decision therefore strengthens one aspect of parliamentary power while simultaneously strengthening another aspect of judicial protection. Parliament has greater room to legislate on institutional design. The Executive cannot simply translate political preference into individual judicial tenure. The Constitutional Council remains relevant to judicial appointments. And the Supreme Court retains the exclusive constitutional responsibility to determine whether a Bill requires approval by referendum.
This last point matters because the Court has also reaffirmed a particular understanding of popular sovereignty. Article 3 places sovereignty in the People, but the Constitution does not require every significant constitutional question to be decided directly by referendum. The Constitution itself establishes institutional mechanisms through which the People exercise sovereignty. In this case, the Supreme Court determines whether Article 83 is engaged, and Parliament then determines whether the Bill receives the constitutionally required majority. The People are therefore represented through the constitutional machinery rather than being directly consulted on every alteration to the constitutional order.
That is not a minor procedural point. It tells us something about the governing model Sri Lanka is operating under. Popular sovereignty does not mean permanent direct popular intervention. It means sovereignty exercised through constitutional institutions whose powers are themselves limited by the Constitution. The Supreme Court has now interpreted those limits in a manner that allows the 22nd Amendment to proceed without a referendum.
And this is where the political argument should now stop and the constitutional argument should become more serious. Supporters of the Bill will point to the Court’s determination as legal confirmation that the legislation is constitutionally permissible. Opponents will continue to argue that judicial independence is endangered by extending the tenure of sitting judges. Both arguments can exist after this determination because constitutional validity and political wisdom are not identical questions. The Court itself expressly separated constitutional adjudication from the political merits of Government policy.
Sri Lanka has repeatedly treated constitutional crises as battles between personalities, parties and governments. The deeper problem is institutional. When Parliament changes the rules governing the judiciary, when the Executive proposes the legislation, when judges themselves are potentially affected by it, and when the Speaker who must communicate the judicial determination is himself under investigation over allegations concerning his conduct, the credibility of the system depends on whether each institution remains within its constitutional role.
The Supreme Court has now spoken. Parliament will decide what happens next. The determination does not settle the political controversy, and it certainly does not erase the questions surrounding judicial independence. It does something more consequential. It establishes the constitutional terms on which those questions must now be argued.
Sri Lanka’s democracy does not necessarily die in darkness. Sometimes it is tested in broad daylight, with Parliament sitting, the Speaker reading the Supreme Court’s words, the Government preparing to vote, the Opposition preparing to protest, and every institution insisting that it is acting within the law. That is the more dangerous moment because constitutional deterioration, when it happens, rarely announces itself as the destruction of democracy. It arrives through procedures, interpretations, precedents and decisions that each appear defensible when considered separately.
The 22nd Amendment will therefore be remembered for more than the age at which judges retire. It has forced Sri Lanka to confront a harder question about who ultimately controls the architecture of the State, how far Parliament can redesign an independent judiciary, where judicial self-interest ends and institutional necessity begins, and whether constitutional safeguards remain strong enough when the institutions responsible for protecting them are themselves under pressure. If there is any luck left, if there is a God, he may save Sri Lanka from the calamity that its institutions are still capable of creating for themselves.
