The Joint Opposition yesterday requested President Anura Kumara Dissanayake to hold a referendum on the 22 Amendment to the Constitution.

The text of the letter released by former President Ranil Wickremesinghe’s Office:

“We write to convey to you our firm conviction that the amendments to Article 107(5) of the Constitution, proposed by the Government, require the holding of a referendum in terms of Chapter XIII of the Constitution to ascertain the will of the people in respect of the fundamental changes contemplated.

“The foundational principle, in our view, receives expression in Article 3 of the Constitution: “In the Republic of Sri Lanka, sovereignty is in the people and is inalienable”.

“The judicial power of the people, it is expressly provided, “shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised by the Constitution, or created and established by law” [Article 4(c) of the Constitution].

“While Article 3 is an entrenched provision, in the sense that Article 83 compulsorily requires a referendum, in addition to a two-thirds majority in Parliament, for amendment or repeal, there is clear judicial authority for the proposition that Articles 3 and 4 are inextricably interlinked, so that Article 4 is accorded comparable sanctity.

“By way of direct support for this view, we would like to refer to the judgment of three judges of the Supreme Court (Malalgoda J. and Nawaz and Janak de Silva JJ.) in A.V.N.Perera v. Attorney-General in SC (SD) No. 30/ 2022: “In terms of Article 3, sovereignty is in the people, and according to Article 4, the organs of government exercise the executive, legislative, and judicial power of the people. No useful purpose is served by giving constitutional recognition to judicial power if there is no independent judiciary to protect itself from executive and legislative intrusions. Similarly, no useful purpose is served by giving constitutional recognition to fundamental rights if there is no independent judiciary to protect them from executive and administrative excesses. In the end, the full implementation of all rights of the people depends upon the proper administration of justice by a competent, independent and impartial judiciary, by upholding the rule of law. In this context, it is important to note that the SVASTI of the Constitution assures to all people the independence of the judiciary. Hence, sovereignty in Article 3 of the Constitution must be read to include the right to an independent judiciary”.

“This is an emphatic assertion of the view, which we unequivocally subscribe to, that the independence of the judiciary is integral to the sovereignty of the people, acknowledged to be sacrosanct in the architecture of our Constitution.

“While there is no immutable norm in respect of the retirement age of judges, a matter which admits of extensive differences of approach across jurisdictions, our basic objection to the proposed government measure pertains to its ad hoc and ad hominem character.

“The principles we hold to be inviolable have been upheld in the most explicit form possible in authoritative judgments of the Supreme Court.

“As a clear example, we would cite the following passage in the determination of the Supreme Court on the constitutionality of the Inland Revenue (Amendment) Bill in 2022: “Unlike public officers and others holding office under the Constitution, the retirement age of the judges of the Supreme Court and Court of Appeal are specified in the Constitution. Any constitutional amendment to the retirement age or the period of service impacting on incumbent judges, whether directly or indirectly, will impinge on the independence of the judiciary and violative of Article 3, which requires a Referendum” (Buwaneka Aluwihare J and Murdhu Fernando and Janak de Silva JJ).

“There cannot be a more compelling formulation of the principle we consider indispensable for protecting the Rule of Law in our country. The judicial pronouncement in the 2022 Determination is precisely applicable to the present situation.

“We are greatly perturbed by the total absence of consultation, in contrast with the experience of other countries where changes of this kind have been preceded by long periods of consultation with stakeholders, such as the Bar Associations, academia, and civil society. The complete lack of transparency in respect of the current exercise gives cause for anxiety.

“The present position is strikingly at variance with the requirement stipulated by the European Commission for Democracy through Law (the Venice Commission), that “genuine and meaningful consultation” is an essential element of good governance, the Rule of Law, and constitution-making.

“Consideration of this matter by the Supreme Court, the direct beneficiary of the impugned measure, is directly contrary to the rule against actual or presumed bias.

“Value 2.5 of the Bangalore Principles of Judicial Conduct (2002) states that “a judge shall disqualify himself or herself from participating in any proceedings in which a judge is unable to decide the matter impartially, or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially”.

“This has been endorsed by the United Nations Economic and Social Council.

“It is trite law that appearance of bias, even without proof of actual prejudice, can invalidate a judgment. See Lord Goff in R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) 2001 AC 119.

“This criterion of objectivity and impartiality has been supported consistently in international instruments. Examples are provided by the Mount Scopus International Standards of Judicial Independence (Jerusalem 2008), and the Applicable Standards and Regulation of Recusals and Self-Recusal of Judges, formulated by the Office for Democratic Institutions and Human Rights (Warsaw 2025).

“We state categorically that the sovereignty of our people, protected by the Constitution, is unacceptably infringed by the power to determine this matter being taken away from them. This authority, in accordance with principle as well as established precedent, belongs inalienably to the people alone.

“We therefore insist on a referendum as the only lawful course of action to take this issue forward. We call upon Your Excellency, with due deference, to require the Cabinet of Ministers, in terms of Article 85(1) of the Constitution, to certify a Bill purporting to amend Article 107(5) that the proposed measure is intended to be submitted to the people at a referendum.”