The Bar Association of Sri Lanka (BASL) has urged the Government not to proceed with the proposed 22nd Amendment to the Constitution in its present form, warning that extending the retirement age of Supreme Court and Court of Appeal judges could affect the independence of the Judiciary.
The Bar Association of Sri Lanka (BASL) has urged the Government not to proceed with the proposed 22nd Amendment to the Constitution in its present form, warning that extending the retirement age of Supreme Court and Court of Appeal judges could affect the independence of the Judiciary.
The BASL issued the statement today (12), shortly before a scheduled meeting with President Anura Kumara Dissanayake to discuss concerns over the proposed amendment.
The association said it had serious concerns about the Bill, which was published in the Gazette on August 7. It questioned the Government’s justification that the amendment was aimed at expediting hearings and improving the efficiency of the judicial system.
According to the BASL, the connection between extending the retirement age of judges of the superior courts and achieving those objectives remained unclear.
The BASL said the legal community, including the BASL and the Judicial Service Association, had unanimously resolved to oppose the proposed amendment, considering it a direct interference with judicial independence.
It added that similar concerns had been raised by religious leaders, civil society groups and prominent overseas law and judges’ associations.
The BASL further argued that if the Government proceeded with the amendment despite objections from stakeholders, the proposed constitutional change could only be validly enacted with the approval of the People at a referendum.
The association pointed out that Article 107 of the Constitution, which deals with the retirement age of judges of the superior courts, falls under Chapter XV, titled “Independence of the Judiciary.”
It also referred to Articles 3 and 4(c), under which sovereignty is vested in the People and judicial power is recognised as a component of that sovereignty.
The BASL cited a 2022 Special Determination of the Supreme Court in SC SD 64-71/2022, stating that the Court had observed that a constitutional amendment affecting the retirement age or period of office of incumbent judges would affect judicial independence and violate Article 3, thereby requiring a referendum.
The BASL said this determination indicated that the proposed amendment constituted an entrenched provision that could not be validly enacted without the approval of the People at a referendum.
The association also expressed concern over the constitutional implications if the Bill is placed on Parliament’s Order Paper. It said any citizen would then have the right to challenge the constitutionality of the proposed amendment before the Supreme Court.
Such a challenge, the BASL warned, could place Supreme Court judges in a constitutionally sensitive position, as they would be required to determine the legality of an amendment that would extend their own tenure.
The BASL therefore said that if the Government decided to proceed with the proposal, the Cabinet should submit the Bill directly to the People at a referendum, avoiding a situation in which the Supreme Court would have to determine its constitutionality.
The association also criticised the lack of consultation with key stakeholders, noting that constitutional amendments of this nature in other jurisdictions had generally been preceded by transparent, inclusive and lengthy consultative processes.
The BASL said it considered it its duty to safeguard the independence of the Judiciary, which it described as an essential cornerstone of the Rule of Law and constitutional governance.
The statement was signed by BASL President Rajeev Amarasuriya and Secretary Nalin de Silva.
