Fight now moves to the streets with Opposition expected to gather at Polduwa Junction tomorrow

By Saman Indrajith

The Supreme Court (SC) has determined that the proposed 22nd Amendment to the Constitution does not require approval at a referendum and may be enacted with a special two-thirds majority in Parliament. Speaker Dr. Jagath Wickramaratne announced the SC determination in the House yesterday.

The determination, delivered to the Speaker following the hearing of 67 petitions challenging the constitutionality of the Bill, clears the way for Parliament to take up the proposed constitutional changes during a two-day debate beginning Thursday (24).

Announcing the determination, Speaker Wickramaratne said the Supreme Court had held that the provisions of the 22nd Amendment Bill, or any part of it, did not require approval by the people at a referendum under Article 83 of the Constitution.

The Court, however, has directed specific changes to the wording of Clause 2 of the Bill concerning the retirement of the Chief Justice.

According to the Speaker, the phrase referring to the date on which the Chief Justice “reaches 67” is to be replaced with wording referring to the date on which the Chief Justice “completes 67 years”.

The Court has further directed that a second proviso be added to Clause 2 stipulating that the six-year term limit proposed for the office of Chief Justice will not apply to a person holding that office on the date the amendment comes into operation.

The Supreme Court has also determined that certain provisions of the 22nd Amendment can be passed by a simple majority of Parliament, while the Bill as a whole, insofar as it requires a constitutional amendment, can proceed without a referendum on the basis of the required special majority.

The Supreme Court separately determined that the provisions of the Judicature (Amendment) Bill are not inconsistent with the Constitution and may be passed by a simple majority in Parliament.

The Judicature Bill is linked to the Government’s wider judicial reform programme and proposes changes to the retirement ages and composition of the lower judiciary.

The two Bills were presented to Parliament on August 18 by Minister of Justice and National Integration Harshana Nanayakkara.

The 22nd Amendment Bill proposes to increase the retirement age of Supreme Court judges from 65 to 67 and that of Court of Appeal judges from 63 to 65. It also seeks to increase the maximum number of Court of Appeal judges from 19 to 24.

The Judicature (Amendment) Bill proposes to increase the retirement age of High Court judges from 61 to 63 and establish 62 as the compulsory retirement age for other judges and magistrates. It also seeks to increase the maximum number of High Court judges from 110 to 120.

The constitutional challenge to the 22nd Amendment generated one of the more extensive challenges to a Bill in recent years, with 67 petitions filed before the Supreme Court.

The petitions were heard on September 1 and 2 by a five-member bench comprising Chief Justice Preethi Padman Surasena and Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath Abeykoon and Gihan Kulatunga. A request for the matter to be considered by a full bench was rejected.

The hearing concluded on September 2, after which the bench informed the parties that its confidential determination would be forwarded to the Speaker.

Among the principal constitutional questions raised before the Court was whether extending the tenure of judges would affect constitutional provisions relating to sovereignty and judicial independence, thereby requiring approval by the people at a referendum in addition to a two-thirds parliamentary majority.

The Centre for Policy Alternatives and its Executive Director Dr. Paikiasothy Saravanamuttu were among those who challenged the Bill, arguing that its provisions concerning judicial retirement ages were inconsistent with Article 3 of the Constitution and therefore required approval at a referendum.

The Court’s determination, communicated through the Speaker, has now settled the constitutional procedure required for the Bill to proceed.

The Committee on Parliamentary Business had already scheduled the second-reading debate on the 22nd Amendment and the Judicature (Amendment) Bill for September 24 and 25.

Parliament is scheduled to debate the two Bills from 11.30 am to 7 pm on both days. The vote is expected to follow the conclusion of the second-reading debate on Friday.

The Supreme Court’s determination therefore comes just two days before the commencement of the parliamentary debate, with the Government now able to proceed without having to prepare for a referendum.

The Opposition, however, has indicated that it will continue its campaign against the proposed amendment despite the Court’s determination on the referendum requirement.

The SJB has organised a protest at Polduwa Junction near Parliament on Thursday, coinciding with the opening day of the debate. The protest is scheduled for 9 am and has been organised under the patronage of Opposition Leader Sajith Premadasa, with other Opposition parties invited to participate.

Opposition parties and civil society groups had earlier signed a joint declaration opposing the Bill and announced plans for a broader mobilisation against it. Their objections have centred particularly on the potential implications of the proposed changes for judicial independence.

The Government, meanwhile, has maintained that the proposed changes form part of a broader effort to reform the judicial system and address delays in the administration of justice. The proposed increase in the retirement ages of judges has been presented as one component of that reform programme.

With the Supreme Court having ruled that no referendum is necessary, the immediate constitutional hurdle has therefore shifted from determining the Bill’s eligibility for a public vote to whether the Government can secure the required parliamentary majority.

The decisive stage will come on September 24 and 25, when MPs take up the proposed constitutional and judicial changes for debate and eventual voting.