SC Determination on 22A:A Law and Policy Critique

The 22nd Amendment to Sri Lanka's Constitution has garnered significant attention both domestically and internationally, particularly following statements made by Ms. Margaret Satterthwaite, the UN Special Rapporteur on the independence of the judiciary. This article aims to provide an in-depth analysis of the amendment, which has been prepared for publication in scholarly legal journals across the Commonwealth. The focus of this article is on the Full Court determination of the amendment's legal and policy implications.

Upon reviewing the matter, the majority of petitioners advocated for the establishment of a Full Court composed of the thirteen judges of the Supreme Court. This approach has been precedent established in prior cases, including the handling of the Sixth Amendment in 1983 and the Thirteenth Amendment and Provincial Council Bills in 1987. Other instances where Benches of seven judges have been constituted include the Neville Samarakoon CJ-led order in 2018 and Jayantha Jayasuriya CJ's ruling in 2023.

The five-judge Bench in the 22A case dismissed the petition for a Full Court on the basis that the issue at hand pertained to a matter of general or public importance, and thus, the hearing could not be conducted without adhering to a procedure established by the Constitution. The Chief Justice, in making this decision, had already exercised his discretion and any amendment to this would entail relinquishing this authority, thereby usurping the discretion vested in him by the Constitution.

Critics of this decision argue that it overlooks the reality that petitioners were seeking not intervention by other judges to overturn the Chief Justice's decision, but rather a subsequent ruling by the Chief Justice himself to expand the Bench's composition based on the counsel's submissions about the need for this expansion. The Court's decision to appoint five judges without employing any transparent criteria for their selection, such as seniority, was also pointed out as a shortcoming.

The Chief Justice's discretion, while unquestionable, must be exercised with public confidence in mind, as suggested by Professor Sir William Wade.

Moreover, the Court dismissed the petitioners' argument regarding the government's failure to engage in a consultative process. Despite the Bar Association's efforts to obtain interviews with relevant government officials, the Minister of Justice maintained that no changes to the retirement age of judges had been decided upon. The Maha Sangha, Catholic Bishops’ Conference, Church of Ceylon, Bar Association, trade unions, as well as numerous academics and civil society organizations, voiced their vehement opposition to the amendment.

However, the Court's ruling indicated that the parties had not provided any legal provision supporting their claims.