🇱🇰 22A PASSED: WHAT CHANGED AND WHAT DID THE COURT SAY?

⭕ Parliament passed the 22nd Amendment to the Constitution on 25 September, with 158 votes for and 63 against, securing the required two-thirds majority.

⭕ It raises the retirement age of Supreme Court Judges from 65 to 67 and Court of Appeal Judges from 63 to 65. It also increases the maximum number of Court of Appeal Judges from 19 to 24.

⭕ The Supreme Court determined that no provision of the Bill required approval by the people at a referendum under Article 83. The amendment could therefore proceed with the required special majority in Parliament, subject to the changes identified by the Court.

⭕ The Bill faced numerous Special Determination petitions, including challenges concerning judicial independence, conflicts of interest and whether the amendment should require a referendum.

SO, WHAT DID THE SUPREME COURT SAY ABOUT THE MAIN OBJECTIONS?

⭕ The Court first made clear that it is not the Court's job to decide whether increasing the retirement age is good or bad policy. Its role was to determine whether the proposed amendment was constitutional and whether any provision required a referendum.

1. Why wasn't the case heard by all Supreme Court Judges?

⭕ The Chief Justice had already considered 22A a matter of general and public importance and appointed a five-judge bench under Article 132(3).

⭕ The Court explained that Article 132(3) requires five or more judges, not necessarily every Supreme Court Judge. At the same time, three other Supreme Court Judges were hearing challenges to the Anti-Corruption (Amendment) Bill, which was also subject to a strict constitutional deadline. Judges could also be unavailable because of illness, personal circumstances or previously approved overseas leave.

⭕ The Court said assigning every judge to one matter could also disrupt other cases. The Chief Justice, who has the overall picture of the Court's workload and availability of judges, therefore has the constitutional discretion to determine the size of such a bench.

2. Why couldn't the five judges expand the bench to all 13?

⭕ The Court said the power to determine the bench under Article 132(3) belongs to the Chief Justice. The five judges could not effectively review or replace that decision.

3. Could judges hear the case when they themselves would benefit from the higher retirement age?

⭕ Yes. The increase applied generally to sitting judges, not selected individuals. The Court also relied on the rule of necessity: if all judges were disqualified, there would be no Supreme Court left to review the Bill.

4. Was the extension a "legislative bribe" to serving judges?

⭕ The Court rejected that argument. The additional two years apply generally and automatically, with no power given to the Government to decide which individual judges receive the extension.

5. Didn't an earlier Supreme Court determination say changing the retirement age of serving judges could require a referendum?

This was one of the most important arguments.

⭕ In its 2022 Inland Revenue Amendment Bill determination, the Supreme Court said:

"Any Constitutional amendment to the retirement age or the period of office impacting on incumbent judges, whether directly or indirectly..."

⭕ It went on to hold that such an interference with judicial independence would violate Article 3 and require a referendum.

⭕ However, the 2026 Court read those words in the context of what came immediately before them.
The 2022 determination had been discussing examples where tenure could be reduced, including lowering the retirement age generally or imposing a new maximum period of service on existing judges.

⭕ The 2026 Court therefore treated that earlier ruling as addressing a reduction of existing judicial tenure, rather than an increase. It considered an extension of tenure differently because it does not remove an existing period of office.

⭕ So the distinction made by the Court was:

Reducing existing tenure: may threaten security of tenure and judicial independence.
Increasing retirement age generally: was not treated as the same constitutional interference.

⭕ Petitioners had argued for a broader reading of the 2022 words, particularly "any Constitutional amendment" and "whether directly or indirectly", but the 2026 Court did not accept that interpretation.

6. Could the Government selectively keep favourable judges in office?

⭕ The Court said 22A gives the Government no such power. The new retirement age applies automatically to all judges in the relevant category, rather than allowing the Executive to choose who receives an extension.

7. Was this "court packing"?

⭕ The Court rejected the argument. The judges receiving the extension were appointed under previous governments, and keeping them longer actually delays vacancies that the present Government could otherwise fill.

8. Does extending their service bypass the Constitutional Council?

⭕ No. The existing judges had already gone through the constitutionally required appointment process. Increasing their retirement age does not amount to a new appointment.

9. What about public confidence in judicial independence?

⭕ The Court said constitutional invalidity could not be established simply through public perception, speculation or conjecture. It had to consider the actual legal effect of the amendment.

THE COURT'S CENTRAL REASONING

⭕ The Court's main concern was whether 22A would make judges dependent on the Government for remaining in office. It found that it would not, because the retirement-age extension applies automatically to all relevant judges and the Government cannot choose who receives it.

⭕ The Court also treated an increase in retirement age differently from a reduction of an existing judge's tenure. The former gives judges additional time in office, while the latter can interfere with the security of tenure already guaranteed to them.

⭕ The Court also noted the historical evolution of judicial retirement ages. The Supreme Court retirement age had moved from 62 to 63 and then to 65 in 1978, but had remained unchanged since then, even as retirement ages elsewhere in the public sector changed over time. (55 from 1970, increased to 60 in 1996)

⭕ On those basis, the Court concluded that the retirement-age extension did not amount to the kind of interference with judicial independence that would require approval at a referendum under Article 83.

#SriLanka #22A