President Anura Kumara Dissanayake did not mince his words when he spoke about his and his National People’s Power (NPP) Government’s intentions with regard to the proposed 22nd Amendment. Speaking at the national ceremony to mark the Holy Prophet’s birthday commemoration in Colombo last week, he said: “If the verdict of a 2006 case is delivered only in 2026, and nine years on, not a single piece of evidence has been recorded for a case filed in 2017, when will the public ever have faith in justice? Under no circumstances will the 22nd Amendment be rolled back.”
There is something almost poetic in the collision of these two statements, made within the same speech. One is a lament about a justice system so slow that verdicts arrive decades late and evidence in serious cases goes unrecorded for years. The other is a declaration of absolute certainty about a constitutional amendment that most of the legal profession believes will make that same justice system less trustworthy, not more.
The NPP Government that was elected to office on the promise of fixing a supposedly broken system is now being told, by the same entities meant to interpret and safeguard the Constitution, that its flagship judicial reform risks compounding the rot it claims to cure. The 22nd Amendment, gazetted on 7 August and presented to Parliament on 18 August by Justice and National Integration Minister Harshana Nanayakkara is not, on its face, a radical piece of legislation. It raises the retirement age of Supreme Court judges from 65 to 67 and of Court of Appeal judges from 63 to 65, and carves out a separate rule for the Chief Justice, who would demit office upon turning 67 or completing six years in that post, whichever comes first. It also expands the Court of Appeal bench from 19 judges to 24.
A companion bill, the Judicature (Amendment) Bill, would do something similar for the High Court and lower Judiciary. Presented in isolation, these look like the kind of housekeeping measure that legislatures pass without much controversy. The Government’s own justification is not unreasonable on the surface because Sri Lanka’s courts are genuinely overwhelmed, while the ratio of judges to population lags far behind that of comparable democracies. Retaining experienced judges for a few extra years, the argument goes, allows the system to draw on seasoned expertise rather than losing it to mandatory retirement during a time of acute strain.
But the correlation between raising a handful of judges’ retirement ages and clearing a backlog of over a million cases is, at best, indirect. If experienced judicial capacity were truly the Government’s central concern, the more obvious remedy sat in front of it all along: filling the vacancies that had gone unaddressed for months. The Supreme Court is constituted for 17 judges; for much of this year it has functioned with four seats empty. The Bar Association of Sri Lanka (BASL) has pointed out that the same Government pushing to extend sitting judges’ tenures had, in parallel, allowed those vacancies to persist without explanation.
A Government that is sincerely worried about judicial capacity would fill empty benches without a day’s delay. A Government that instead reaches for a constitutional amendment extending the terms of judges already in office, while the vacancies remain, invites the question of whose continuity is being protected.
That question sharpened considerably when Minister Nanayakkara declared in an interview that no referendum would be held on the amendment, a statement that drew a sharp rebuke from the Joint Opposition. Former Minister Prof. G.L. Peiris pointed out, reasonably, that the Constitution allowed a two-week window from the date a bill was presented to Parliament for citizens to petition the Supreme Court challenging its constitutionality, and gave the court three weeks from any such petition to communicate its determination to the Speaker.
Therefore, for the Minister to pronounce, before that window had even closed, that the outcome would not require a referendum is to treat the Supreme Court’s constitutional role as a formality rather than a genuine check. Whatever one thinks of the amendment’s merits, prejudging a pending constitutional process sends an unmistakable signal about how much weight the Executive intends to give the Judiciary’s independent judgment.
The unease deepens further when one looks at how the court itself is positioned to hear these matters. Three related pieces of legislation concerning the Judiciary and anti-corruption enforcement have arrived before the Supreme Court in close succession, at a time when the bench itself is short-staffed by four vacancies. Whether by design or by neglect, spreading a reduced bench across several simultaneous constitutional questions concentrates an unusual amount of influence in a smaller number of individual judges, and invites exactly the kind of suspicion that transparent governance is supposed to avoid. A Judiciary asked to adjudicate the Government’s own reforms should, at minimum, be operating at full strength.
The biggest problem, however, is structural rather than procedural. The Bar Association’s Special Determination petition, filed by its President Rajeev Amarasuriya and Secretary Nalin De Silva, raises a question that should worry anyone regardless of their view on judicial retirement ages: does extending the tenure, salary, and benefits of sitting judges amount to a ‘gratification’ under the Anti-Corruption Act of 2023?
Section 93(b) of that act makes it an offence for a Supreme Court or Court of Appeal judge to accept any gratification as an inducement connected to acts performed in a judicial capacity. The BASL has been careful to say it is not accusing any judge of wrongdoing. But it does not need to allege misconduct to identify the structural conflict: the very judges asked to rule on whether this bill is constitutional stand to gain two additional years in office, with all the attendant privileges, if they uphold it.
That is not a question about any individual’s integrity; it is a question about whether the architecture of the process itself can survive public scrutiny, which is why the BASL has asked for a full bench of all sitting justices to hear the petitions, and has since gone further, asking the Chief Justice himself to consider recusal.
That last request carries weight. Under the current law, the Chief Justice’s tenure would conclude on 1 December this year upon reaching the mandatory retirement age. Under the proposed amendment, he would be entitled to remain in office for up to two more years. It may be entirely coincidental that a constitutional amendment redefining judicial tenure has been gazetted and rushed to Parliament in the months immediately preceding that date. But coincidence is a fragile foundation for public confidence and the Government has offered little to dispel the impression that timing and substance are connected.
None of this is an argument for treating every question about the Judiciary as illegitimate, and the BASL itself has been careful to draw that line. In a subsequent statement, the association urged that concerns about judges, including the Chief Justice, be pursued through proper constitutional and parliamentary channels rather than through unverified personal attacks on social media or in Parliament, warning that such attacks corrode public confidence in the administration of justice just as surely as institutional overreach does.
That is a fair caution, and one worth heeding by all sides of this debate. Legitimate scrutiny of judicial conduct and reckless character assassination are not the same thing, and conflating them serves no one. But legitimate scrutiny is what is being offered here, from the institution constitutionally positioned to offer it, and it deserves more than a minister’s pre-emptive dismissal.
Return, for a moment, to that opening lament about verdicts arriving 20 years late and evidence going unrecorded for nine. That crisis of delay is real, and that is why public faith in the system is already so thin that it cannot absorb another blow. An amendment that a near-unanimous legal profession views as compromising judicial independence, timed to benefit the very judges asked to assess its constitutionality, is not a solution to that crisis of faith: it is a further withdrawal from an account that is already overdrawn.
The President and the NPP promised a clean break from the transactional politics of the past. There is still time, before the Supreme Court’s determination is delivered and before the amendment proceeds further, to demonstrate that this promise was sincere. Submitting the 22nd Amendment to a referendum would cost the Government little beyond a delay, and would answer decisively the question of whether its authors were building judicial capacity or simply entrenching it.
Refusing to do so, in the face of warnings from the Bar Association, the Opposition, and independent legal opinion alike, will not settle the argument. It will simply confirm, for a public already running short of patience, that the biggest voices in this debate are not the ones asking whether justice can be trusted, but the ones insisting it must be.