The president and secretary of the Bar Association of Sri Lanka have filed a Special Determination petition in the Supreme Court seeking a ruling that the proposed 22nd Amendment to the Constitution cannot be enacted without the approval of the people at a referendum.
BASL President Rajeev Amarasuriya and Secretary Nalin De Silva lodged the petition on Monday under Articles 120 and 121 of the Constitution, the Daily Mirror reported. Those articles govern the Supreme Court’s exclusive jurisdiction to determine whether a Bill is consistent with the Constitution, and the window in which a citizen may bring such a challenge after a Bill is placed on Parliament’s Order Paper.
The petitioners argue that the Bill threatens the independence of the judiciary and the sovereignty of the people.
A request for the full court
The BASL has separately asked the Chief Justice to constitute a Full Bench made up of all sitting Supreme Court judges to hear the matter. It cited what it described as the grave, exceptional and urgent constitutional issues raised by the Bill, along with an alleged conflict of interest.
That last point has been the association’s central difficulty with the amendment from the outset. The Bill would raise the mandatory retirement age of Supreme Court judges from 65 to 67, and that of Court of Appeal judges from 63 to 65 — which means the court asked to rule on its constitutionality is also the court whose members’ tenure it would extend.
A second filing by different office-bearers
Monday’s petition is distinct from the one the BASL lodged a week earlier. That challenge was among six filed on August 18, hours after Justice Minister Harshana Nanayakkara tabled the Bill in Parliament, and was brought by BASL Treasurer T.M.S. Pasindu Silva and Assistant Secretary L.I. Wakishta Arachchi.
This one is signed by the association’s two most senior office-bearers — the same pair who put their names to the BASL statement of August 12 calling on the government to abandon the amendment in its present form.
The referendum argument rests on Article 3, which vests sovereignty in the people, and Article 4(c), which recognises judicial power as part of that sovereignty, together with a 2022 Supreme Court determination that an amendment affecting the tenure of sitting judges would engage Article 3.
A rising count
The number of petitions before the court has been climbing. Ada Derana reported on Monday that 21 petitions had been filed against the amendment, while Hiru News put the figure at 37 on August 19. The two counts have not been reconciled, and neither outlet has explained the gap.
The amendment requires a two-thirds majority in Parliament because the retirement ages are fixed in the Constitution. Whether it also requires the people’s assent is the question now before the court.
As of Monday evening, no other verified Sri Lankan newsroom had published its own report of the filing.
Update — August 25: petition raises “gratification” under the Anti-Corruption Act
Further detail from the same petition published on Tuesday shows the BASL has put a sharper construction on the conflict-of-interest point: it asks whether extending the tenure and attendant benefits of sitting judges could itself amount to a “gratification” within the meaning of the Anti-Corruption Act No. 9 of 2023, as amended.
The petitioners told the court a serious question arises on that score precisely because the same judges may have to rule, in their judicial capacity, on the constitutionality of the Bill that would grant them the extension, the Daily Mirror reported.
The petition cites Section 93(b) of the Act, which covers Supreme Court and Court of Appeal judges, judicial officers and others exercising judicial or quasi-judicial power. Under that provision, soliciting or accepting any gratification as an inducement or reward for doing or refraining from doing an act in a judicial capacity is an offence of bribery, carrying a fine of up to Rs. 1 million and up to seven years’ rigorous imprisonment.
Amarasuriya and De Silva were explicit that they are not alleging wrongdoing or casting aspersions on any judge. The provisions were cited, they said, only to draw the court’s attention to the risk to public perception created by the circumstances. They also acknowledged that it may be argued that legislative and judicial acts are immune from the application of those provisions.
The framing is new to the 22nd Amendment litigation. The conflict-of-interest objection has been the BASL’s central argument since the Bill was gazetted, but no petitioner had previously put it in the language of the anti-bribery statute.
