By Ceylon Signal 
A constitutional amendment and judicial reorganization bill—introduced by the Anura–Surasena “Born‑again” faction—was presented to Parliament today, striking a direct blow at the independence of the judiciary of the Democratic Socialist Republic of Sri Lanka.
Following the passage of the 22nd Constitutional Amendment Bill, the retirement age of Supreme Court judges is set to increase from 65 to 67, the retirement age of Court of Appeal judges from 63 to 65, and the retirement age of High Court, District Court, and Magistrate Court judges to be raised to 62. These changes, widely criticised by the public and state institutions, are seen as part of the Malima administration’s effort to consolidate political power.
However, in its long-standing struggle to safeguard judicial independence and the sovereignty of the people, the Bar Association of Sri Lanka (BASL) today (18) filed its first petition before the Supreme Court, seeking a determination that the 22nd Constitutional Amendment Bill is inconsistent with the Constitution.
The petition has been filed by BASL Treasurer T.M.S. Pasindu Silva and the Association’s Assistant Secretary.
In addition, the Samagi Jana Balawegaya, the Sarvajana Balaya Party, and the Free Lawyers’ Association also filed petitions before the Supreme Court today (18).
Petition Challenging the Twenty Second Amendment to the Constitution of Sri Lanka on Judicial Independence and Referendum Requirement
Summary
This legal petition filed before the Supreme Court of Sri Lanka contests the constitutionality of the “Twenty Second Amendment to the Constitution” (“the Bill”), focusing primarily on its provisions aimed at extending the retirement age of Supreme Court and Court of Appeal judges. Petitioners, senior members of the Bar Association of Sri Lanka (BASL), argue the Bill jeopardizes the independence of the judiciary, a core component of the sovereignty of the People under Article 3 of the Constitution. They contend the Bill represents abusive constitutionalism and a strategic court capture attempt by the government, and therefore requires approval through a public Referendum under Article 83 of the Constitution.
The petition highlights a lack of transparent stakeholder consultation, procedural violations bypassing the Constitutional Council appointing mechanism, and the retroactive application of extended judicial tenure as threats to judicial independence. Given that the amendment directly benefits sitting judges, including members of the Supreme Court deciding this case, the petitioners urge the formation of a Full Bench due to potential conflicts of interest. The petition seeks: (a) determination that the Bill or its clauses violate constitutional sovereignty and judicial independence; and (b) a ruling that the Bill must be passed only with the approval of the People via Referendum.
Highlights
Petition challenges the Twenty Second Amendment’s extension of judicial retirement ages as unconstitutional.
Judicial independence deemed a cornerstone of People’s sovereignty under Article 3 of the Constitution.
No meaningful stakeholder consultation or public discourse preceded the amendment proposal.
The Bill’s provisions allegedly bypass the Constitutional Council, undermining constitutional appointment procedures.
Clause extending sitting judges’ tenure retroactively raises concerns of inducement and impartiality.
The petition describes the Bill as ‘abusive constitutionalism’ and a ‘court capture’ strategy by the government.
Calls for a Referendum to approve the amendment, emphasizing democratic legitimacy and conflict of interest issues.
Key Insights
Judicial Independence as an Essential Aspect of Sovereignty:
The petition underscores that under Article 3, sovereignty resides with the People, and the Judiciary exercises the judicial power of the People independently. Therefore, any amendment that diminishes judicial independence indirectly infringes on People’s sovereignty and necessitates a Referendum. This principle was reaffirmed by the Supreme Court in prior determinations, solidifying independence of the judiciary as part of constitutional entrenchment even if not explicitly listed under Article 83.
Retroactive Extension of Judicial Tenure Compromises Neutrality:
Extending the retirement age of sitting judges retroactively functions as a legislative “inducement,” potentially influencing judicial decisions favoring the government, contrary to standard international norms (ICCPR, Bangalore Principles, UN Basic Principles). Such extensions unsettle judicial security of tenure—a constitutional safeguard that protects judges from incentives affecting their impartiality, creating both actual and perceived conflicts of interest.
Absence of Stakeholder Consultation Reflects Bad Faith:
The petition documents multiple communications and requests by BASL for dialogue and clarifications regarding the amendment, none yielding substantive government response before the Bill’s sudden publication. This secretive approach suggests a lack of good faith and undermines public confidence in the legislative process for constitutional amendments impacting fundamental democratic institutions.
Bypassing the Constitutional Council Undermines Appointment Checks:
The Bill distorts the constitutionally mandated appointment procedure under Article 41C, which requires the Constitutional Council’s approval for superior court judges. Extending tenure without this mechanism sidelines a critical constitutional filter designed to uphold judicial independence, amounting to an institutional usurpation by the legislature that erodes checks and balances.
Court Expansion as a Tactic for Court Packing and Dilution of Judicial Authority:
Increasing the number of judges in the Court of Appeal by five is seen as a deliberate attempt to “pack” the court, weakening the influence of existing judges and enabling the government to shape the judiciary’s composition strategically. This tactic not only affects the independence of the Court of Appeal but also sets a worrying precedent for altering judicial structure for political ends.
Conflict of Interest Requires Full Court and Heightened Scrutiny:
Since the amendment directly affects sitting Supreme Court judges by extending their tenure and benefits, the Court faces an inherent conflict of interest in adjudicating the Bill’s validity. Petitioners call for a Full Bench hearing to ensure collective judicial conscience and emphasize the need for heightened scrutiny given the profound constitutional and democratic stakes involved.
Referendum as a Democratic Safeguard and Constitutional Necessity:
The petition stresses that approval by the People at a Referendum protects judicial independence from arbitrary alterations by the legislature or executive and legitimizes any constitutional change impacting entrenched principles such as judicial tenure. The Referendum is portrayed not only as a legal requirement but as a vital mechanism to maintain the public’s trust in the judiciary and the democratic order.
Conclusion
The petition by Ramzi Bacha Associates on behalf of prominent members of the Sri Lankan legal community challenges the Twenty Second Amendment as unconstitutional due to its adverse effects on judicial independence—a core facet of the People’s sovereignty. The petition articulates a persuasive nexus between constitutional legitimacy, judicial tenure security, public confidence, and democratic safeguards, urging the Supreme Court to rule the Bill or at least its key provisions (Clauses 2 and 3) require approval by a Referendum. It further underscores the perils posed by retroactive judicial tenure extension and legislative overreach in judicial appointments, presenting the Bill as a case of abusive constitutionalism with broad democratic implications.