The Bar Association of Sri Lanka has called on the government to abandon the 22nd Amendment to the Constitution in its present form, arguing that the proposal to extend the retirement age of senior judges cannot lawfully be enacted without a referendum.
The position was set out in a statement issued on Tuesday over the signatures of BASL President Rajeev Amarasuriya and Secretary Nalin De Silva — hours before the association’s delegation was due to meet President Anura Kumara Dissanayake at 1.00 p.m.
The BASL said the legal community, including the association and the Judicial Service Association, had resolved to oppose the amendment on the ground that it amounts to direct interference with the independence of the judiciary.
Why the BASL says Parliament alone cannot pass it
The bill gazetted on August 7 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.
The association’s central argument is constitutional. It points to Article 107, which governs the retirement age of Superior Court judges and sits in Chapter XV under the heading dealing with judicial independence. It couples that with Article 3, under which sovereignty is vested in the people, and Article 4(c), which recognises judicial power as part of that sovereignty.
The BASL also relies on a 2022 Supreme Court determination, SC SD 64-71/2022, in which the court observed that a constitutional amendment affecting the retirement age or period of office of sitting judges would impinge on judicial independence and violate Article 3 — and would therefore require approval at a referendum.
That citation matters. When the bill was gazetted, President’s Counsel Thisath Wijegunawardene asserted that the Supreme Court had already ruled a referendum necessary, a claim we noted at the time had not been independently confirmed. The BASL statement now identifies the determination he was referring to.
The government has said the change is intended to speed up the hearing of cases and improve judicial efficiency. The BASL said the connection between a higher retirement age and those objectives remains unclear.
A court asked to rule on its own tenure
The association warned of a further difficulty if the bill reaches Parliament’s Order Paper. Any citizen could then challenge its constitutionality before the Supreme Court — placing the court in the position of ruling on an amendment that would extend the tenure of its own members.
That, the BASL said, risks eroding public confidence in the judiciary. If the government intends to press ahead regardless, it urged the Cabinet to send the bill directly to a referendum instead, allowing voters to settle the question without putting the court in that position.
Consultation and ‘the appearance of interference’
The BASL criticised what it called an absence of meaningful consultation, saying that comparable changes to judicial tenure in other jurisdictions had followed transparent and lengthy consultative processes. It said limited consultation combined with unusual haste could set a dangerous precedent for future governments, and that particular caution was warranted where a perception might arise that the changes relate to specific individuals.
Responding to ministers and government MPs who have questioned why judicial independence has become the central objection, the association said even the appearance of bias or interference can create doubt about the fairness of the courts, whether or not actual bias exists.
Constitutional amendments, it added, outlast any single government and shape the administration of justice for generations.
The proposal has already drawn objections from the Mahanayake Theras of the four chapters, the International Association of Judges and opposition parties. Because the retirement ages are fixed in the Constitution, the amendment requires a two-thirds majority in Parliament — and, on the BASL’s reading, the people’s assent as well.
