Sri Lanka’s Supreme Court on Tuesday declined a request for all of its judges to hear the challenges to a proposed constitutional amendment that would extend the retirement ages of senior judges, ruling instead that proceedings will continue before a five‑member bench headed by Chief Justice Preethi Padman Surasena.
The decision settles an unusual preliminary dispute in a case that has drawn intense national attention: who should sit in judgment on legislation that could lengthen the working lives of the very judges tasked with reviewing it.
Full Bench Request Rejected
The application for a fuller bench was made by President’s Counsel M.A. Sumanthiran when the petitions were taken up before the Chief Justice and four other judges. Several senior lawyers—including Saliya Pieris, Ali Sabry, Geoffrey Alagaratnam, Eraj de Silva, Srinath Perera, Anura Meddegoda and Maithri Gunaratne—supported the request.
After hearing submissions, Chief Justice Surasena announced that the request had been rejected. The petitions will proceed before the five judges already nominated: the Chief Justice, and Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath Abeykoon and Gihan Kulatunga.
Notably, the four judges immediately below the Chief Justice in seniority were not included, with more junior judges appointed instead—an arrangement that has drawn scrutiny given the nature of the amendment under review.
Amendment Alters Judicial Tenure
The proposed 22nd Amendment seeks to raise the mandatory retirement age of Supreme Court judges from 65 to 67 and that of Court of Appeal judges from 63 to 65. It also introduces a separate tenure limit for the Chief Justice: retirement at 67 or after six years in office, whichever comes first.
Justice Minister Harshana Nanayakkara presented the Bill to Parliament on August 18, following its publication in the Gazette on August 7. A related Bill proposes amendments to the Judicature Act.
Sixty‑seven petitions have been filed challenging the constitutional amendment, with another five targeting the Judicature Bill.
Judicial Independence at the Forefront
Petitioners argue that extending the tenure of sitting judges risks undermining judicial independence and, by extension, the sovereignty of the people protected under Article 3 of the Constitution. They contend that altering the terms of judges already appointed under an existing retirement‑age regime could set a dangerous precedent, enabling political authorities to adjust judicial tenure after appointments are made.
Because the Bill seeks to amend the Constitution, the Supreme Court’s review is governed by Article 120. The central question is whether any provision of the amendment requires approval by the people at a referendum under Article 83, in addition to a two‑thirds parliamentary majority.
Bar Association Sought Full Court, Raised Recusal Issue
The Bar Association of Sri Lanka (BASL), one of the petitioners, had urged the Chief Justice to convene a full bench, citing the exceptional circumstances of judges ruling on legislation that could benefit them personally. Last week, the BASL also filed a motion asking the Chief Justice to consider recusing himself and, if he did so, to constitute a bench of all remaining judges.
Instead, the Chief Justice named the five‑judge panel on Monday. Tuesday’s ruling addressed only the question of bench composition, not the substantive constitutional issues.
Heavy Turnout Expected as Hearings Begin
The hearings are expected to draw an unusually large number of lawyers. More than 100 counsel may record appearances for the BASL petition alone, including representatives of regional bar associations seeking to formally register their opposition to the amendment.
Under Sri Lanka’s system of pre‑enactment judicial review, parliamentary proceedings on the Bill are suspended until the Supreme Court issues its determination. The court must communicate its ruling to the President and the Speaker within three weeks.
The five‑judge bench will now proceed to hear arguments on whether the proposed 22nd Amendment triggers the referendum requirement—and, ultimately, what constitutional procedure Parliament must follow if it intends to enact the measure.
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