A challenge over the proposed extension of judges’ retirement ages has intensified after the Bar Association of Sri Lanka asked Chief Justice Preethi Padman Surasena to consider recusing himself from hearing the constitutional petitions.
A total of 21 petitions have now been filed before Sri Lanka’s Supreme Court challenging the Government’s proposed 22nd Amendment to the Constitution, with petitioners arguing that the Bill could undermine public sovereignty and judicial independence.
The latest development came on 24 August, when the Bar Association of Sri Lanka (BASL) filed a motion asking Chief Justice Preethi Padman Surasena to recuse himself from hearing the petitions challenging the proposed constitutional amendment.
The BASL President, Rajeev Amarasuriya, and BASL Secretary Nalin de Silva filed the motion under Articles 120 and 121 of the Constitution, naming the Attorney General as the respondent. The motion seeks a determination on whether the Bill titled “Twenty Second Amendment to the Constitution”, or any part of it, must be approved through a referendum under Article 83 of the Constitution.
The BASL has raised the issue of the Chief Justice’s potential personal interest in the outcome of the constitutional challenge. It has pointed out that the first Supreme Court Judge who would benefit if the Bill is enacted without a referendum would be the Chief Justice.
The association has also noted that if the Supreme Court determines that a referendum is required, there is a possibility that the Chief Justice could retire before that process is completed.
Against that backdrop, the BASL has said that if the Chief Justice wishes to recuse himself from hearing the petitions, he should constitute a Bench comprising all the other Judges of the Supreme Court.
The motion adds a significant judicial-independence dimension to the wider constitutional challenge, as the Supreme Court considers whether the proposed changes can proceed through Parliament or require direct approval from voters.
The Government tabled the 22nd Amendment Bill in Parliament on 18 August. Since then, a series of petitions have been filed challenging its constitutionality, including petitions by the BASL, former Minister Prof G.L. Peiris, Prof Ranjan Abeyratne and several others. The latest petitions were filed by a group including Vinivida Foundation Treasurer Sunil Jayasundara, Dr Ajantha Perera, attorney-at-law Shiral Lakthilaka and the Young Lawyers’ Association.
At the centre of the dispute are provisions concerning the retirement ages of Judges of the Superior Courts. The Bill proposes to increase the retirement age of Supreme Court Judges from 65 to 67 and that of Court of Appeal Judges from 63 to 65.
The Government has maintained that the proposed reforms are intended to strengthen the judicial system and improve its efficiency, including by addressing delays and the backlog of cases.
Petitioners, however, have raised constitutional concerns over the proposed changes, particularly their implications for judicial independence and the exercise of the judicial power of the people. Some have specifically challenged the application of the proposed retirement-age provisions to serving Judges, arguing that such measures could affect the separation of powers and the independence of the Judiciary.
The petitioners are asking the Supreme Court to determine that the Bill is inconsistent with the Constitution and cannot be enacted through Parliament alone. They have accordingly requested the Court to rule that the proposed Amendment must receive approval at a public referendum, in addition to securing the constitutionally required Parliamentary majority.
Under the Constitution, the Supreme Court has jurisdiction to determine whether a Bill is inconsistent with the Constitution when a petition challenging its constitutionality is filed within the prescribed period following its presentation to Parliament.
The Court’s determination will therefore be crucial in deciding whether the proposed 22nd Amendment can proceed through the ordinary Parliamentary process or whether a referendum would be required. The BASL’s motion has added another closely watched issue to that constitutional test: whether the Chief Justice should participate in deciding the fate of a Bill that could directly affect his own retirement.
