- Deconstructing the referendum argument and why bare conclusions cannot replace constitutional analysis
Throughout August, the English language newspapers published a steady stream of news articles, editorials and commentary as did several Sinhala language social media channels, opposing the Government’s proposal to raise the retirement age of Superior Court (Supreme Court [SC] and Court of Appeal [CA]) Judges. The criticism was loud, consistent, and often emphatic. What was missing however was the one thing that an informed public debate requires: an explanation.
Across articles, editorials, columns, political analyses, and podcasts, the claim that the proposal threatens judicial independence and the rule of law was treated as a settled fact. Writers invoked the phrase repeatedly, sometimes as a warning, sometimes as a conclusion, and occasionally as a rallying cry. Yet, none of these pieces paused to articulate how or why extending the judicial tenure would produce such a danger.
In a meeting with President Anura Kumara Dissanayake, the leading lights of the Bar Association of Sri Lanka were unable to present a coherent argument. It was a sad sight to see the best of the Sri Lankan private and unofficial Bar reduced to hiding behind mere slogans.
The omission is striking. Judicial independence is not a mystical concept; it is a structural condition grounded in appointment processes, the security of tenure, and insulation from political influence. If raising the retirement age undermines these safeguards, the mechanism should be identifiable. Does a longer term entrench existing judges? Does it create incentives for political favour or selective extensions? Does it alter constitutional balances or weaken oversight? These are the questions that should have been addressed — but were not.
Instead, August’s commentary relied on implication.
The reader is asked to accept the threat exists without being shown the reasoning behind it. This is not merely a stylistic flaw; it is a substantive one. When the press warns of an institutional crisis but does not explain the causal link, it leaves the public with conclusions but no understanding.
Sri Lanka’s constitutional debates deserve better. If critics believe that the 22nd Amendment to the Constitution Bill compromises judicial independence, they must do more than repeat the phrase. They must demonstrate the logic. Without that, the conversation risks becoming political theatre rather than legal analysis, and the public is left navigating shadows instead of arguments.
Meanwhile, in the recent public discourse surrounding proposed constitutional amendments in Sri Lanka, specifically regarding adjustments to the mandatory retirement age of Judges of the Superior Courts, a recurring claim has emerged: that raising the retirement age of judges inherently requires approval by the people at a referendum.
When subjected to rigourous constitutional analysis, this proposition rapidly reveals itself to be an unreasoned assertion, a naked conclusion entirely devoid of legal, statutory, or constitutional foundation. Furthermore, attempts to rescue this assertion by drawing a dichotomy between the Government's "legal power" to amend the Constitution and an extra-textual "constitutional responsibility" reflect a fundamental misunderstanding of constitutional interpretation and the rule of law.
The legal architecture of amendments and referenda
To determine whether any legislative proposal requires a referendum under the 1978 Constitution, one does not rely on political rhetoric or abstract institutional preference; one must look directly to the text of the Constitution itself.
The framework governing constitutional amendments is explicitly demarcated: Article 83 thresholds and Article 107 and tenure.
Article 83 thresholds
Article 83 explicitly lists the specific entrenchments that require both a two-thirds special majority in Parliament and approval by the people at a referendum. These entrenchments are strictly confined to foundational provisions such as Articles 1-4, and 6-11, along with specific provisions regarding the term of office of the President and Parliament.
Article 107 and tenure
Provisions governing the Judiciary, specifically Article 107 regarding the appointment, tenure, and retirement age of SC and CA Judges, are not listed within Article 83.
Constitutional amendment pathways
/ \
Article 83 Entrenched clauses Ordinary constitutional provisions
(e.g. Articles 1-4, 9-11, Terms of office) (e.g. Article 107 Tenure / Age limits)
| |
• 2/3 Parliamentary majority • 2/3 Parliamentary majority
• Mandatory Referendum • Standard constitutional process
Asserting that altering the judicial retirement age specified in Article 107 requires a referendum without identifying how such an amendment impinges upon an Article 83 entrenched provision (such as Article 3 or 4 regarding sovereign power) is a classic legal non-sequitur. Without establishing a direct textual or structural link showing an abridgment of popular sovereignty or fundamental rights, the demand for a referendum remains an unsupported legal leap.
The false dichotomy: "Legal power" versus "Constitutional responsibility"
A central fallback argument often advanced by critics is that while the Government may possess the formal legal power to amend the Constitution via Parliament, it has a separate constitutional responsibility to refrain from exercising that power in ways that allegedly affect institutional independence.
This argument creates a complete false dichotomy: Monistic duty of the State, Procedural integrity is the rule of law, and No independent extra-constitutional duty.
Monistic duty of the State
In a constitutional democracy governed by a written Constitution, the Government's sole constitutional responsibility is to act in strict compliance with the Constitution itself. There is no mystical, unwritten realm of "constitutional responsibility" that exists in contradiction to, or over and above, the explicit statutory provisions of the Supreme Law.
Procedural integrity is the rule of law
The rule of law requires that State actions be grounded in valid, authorised legal procedures. When the Government enacts an amendment in full compliance with the procedural guarantees mandated by Chapter XII of the Constitution — including obtaining the requisite approval from the Attorney General under Article 77, publishing the Bill in the Gazette, and submitting it to judicial scrutiny under Articles 120/121 — it is executing the ultimate expression of constitutional responsibility.
No independent extra-constitutional duty
To suggest that the Government acts unconstitutionally even while obeying every procedural requirement of the written Constitution is to subvert the rule of law in favour of subjective political preference.
The lack of evidence of rule of law infringement
The assertion that extending judicial retirement ages undermines judicial independence or breaches the rule of law lacks evidentiary support: Uniform institutional application, Global standard, and Absence of coercion.
Uniform institutional application
Increasing the mandatory retirement age across the judicial hierarchy — from SC Justices to lower court magistrates — is a structural policy measure. According to public updates from the Justice Ministry and reporting, the measure aims to address administrative backlogs involving over 1.1 million pending cases by retaining experienced judicial personnel.
Global standard
Adjusting tenure limits to reflect increased life expectancy and institutional needs is a standard legislative practice in common law jurisdictions globally, routinely carried out via statutory or constitutional amendment without triggering plebiscites.
Absence of coercion
Security of tenure is designed to protect judges from arbitrary removal. Uniformly extending the tenure of an entire bench enhances tenure protection rather than diminishing it, provided that it is executed through general legislation rather than ad-hoc, individual-specific extensions.
The failure of syllogism in the proponent's claim
In legal reasoning, a valid conclusion must flow logically from major and minor premises.
The syllogism collapses at premise B because Article 107 is not one of the provisions entrenching a referendum under Article 83.
To bridge this gap, proponents must prove that modifying Article 107 indirectly invalidates an entrenched provision like Articles 3 or 4. Simply asserting that "the Judiciary is important, so a referendum is required" bypasses the necessary legal reasoning entirely.
Conclusion
In evaluating constitutional amendments, jurisprudence leaves no room for speculative or emotional assertions. Under Articles 120 and 121, the sole authority to determine whether a Bill requires a referendum rests with the SC.
Until and unless a structural violation of an entrenched clause is demonstrated through precise legal analysis, any claim that raising the retirement age of judges requires a referendum remains an unreasoned assertion, a conclusion standing without premises, unsupported by the text of the Constitution, and at odds with the true meaning of the rule of law.
The writer is a Canada-based barrister and solicitor
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The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication