Legislators have a responsibility to ensure Supreme Court does not end up hearing its own case

20-Aug-2026

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The proposed extension of the tenure of Supreme Court judges, which is planned to be implemented through the proposed 22nd Amendment to the Constitution and has currently attracted considerable public attention, must be considered with the utmost care and after extensive consultation and broad consensus among all stakeholders, the National Movement for Social Justice has said.

In a statement issued by its General Secretary Sunil Jayasekara, the movement said:

It is the responsibility of all stakeholders to ensure, under no circumstances, that the Supreme Court is placed in a position where it has to hear a case concerning itself.

At the same time, we must pay close attention to the independence of the judiciary. The only specific reference in the Sri Lankan Constitution to the retirement age of an elected or appointed official concerns judges of the Supreme Court and Court of Appeal under Article 105(7). This is one of the fundamental safeguards intended to ensure judicial independence.

Since the judiciary is responsible, among other things, for examining the legality of actions taken by the executive and the legislature, it is essential that the tenure and privileges of judges are protected in this manner.

The foremost responsibility of all stakeholders should be to ensure that any reform is carried out without causing any damage to the credibility of the judiciary, which is the mechanism through which justice is upheld.

The 22nd Constitutional Amendment Bill has now been gazetted and was presented to Parliament today (18). Several parties have already announced that they intend to seek judicial intervention to examine the constitutionality of the Bill.

The key concern is that the very judges who would hear the case could be placed in a position where they have to rule on a matter concerning the extension of their own tenure.

This could lead to a violation of one of the fundamental principles of justice – the well-established legal principle that no one should be a judge in his or her own case.

The proposed 22nd Amendment has created a situation in which the judiciary could be placed under pressure to violate this legal principle.

Since the Sri Lankan Constitution provides that the Supreme Court must examine the constitutionality of Bills, the proposed legislation appears to create a situation in which judges may have to hear a case concerning their own tenure.

An important matter that must be carefully considered is how other countries avoid such situations.

In Canada, judges serving in provincial judiciaries can be appointed to the Supreme Court for specific cases. Similarly, under a system operating in England, judges for such special cases are appointed from a pool of additional judges comprising recently retired judges.

Several other countries have established constitutional courts. In countries such as Austria, Germany, South Korea, South Africa, Indonesia, Thailand and Turkey, the constitutionality of laws is examined by such constitutional courts.

Sri Lanka has neither an alternative panel of judges comprising retired judges nor a separate constitutional court.

There was an opportunity, when the Bill was being drafted, to introduce an amendment that would extend the tenure of Supreme Court judges without violating established legal principles. It is still possible to rectify the matter.

Accordingly, there are solutions available to Sri Lanka's legislators under the existing Constitution. The proposed Bill should therefore be amended for this purpose.

If, after the proposed 22nd Constitutional Amendment is referred to the Court, the Court determines that it must be approved by a referendum, the final decision will rest with the people.

In such a situation, it would be clear that there would be no conflict with the legal principle concerning a person hearing his or her own case and that the fundamental principle of justice would not be compromised.

It is not sufficient for a court and the administration of justice merely to be fair. The accepted principle is that justice must also appear to be fair and be seen to be fair.

If the tenure of the incumbent judges is extended under the proposed amendment without a direct decision by the people, there will be greater scope for various parties to argue that the administration of justice does not appear fair to everyone.

At the same time, increasing pressure on the judiciary to demonstrate its impartiality and legitimacy could cast a shadow over its decisions.

In both situations, public confidence in the independence and impartiality of the judiciary could be adversely affected, regardless of the perspective of any particular party.

The confidence placed by the people in the Supreme Court has remained strong despite various crises.

Despite challenges in the past, citizens, professional associations and various other stakeholders have worked with dedication alongside the Supreme Court to protect judicial independence.

Taking these circumstances into consideration, the position of the National Movement for Social Justice is that legislators have a responsibility to exercise the sovereignty of the people without placing the Supreme Court in a position where it has to hear its own case and without undermining public confidence in judicial independence.

We believe that a dignified and acceptable solution can be reached through constructive dialogue with the Bar Association of Sri Lanka.

Resolving the unfortunate and serious divisions that exist in the country today would greatly contribute to its future progress.

As a civil society organisation that has been committed to protecting democracy from the outset, we consider it our national duty to create awareness among the Government and the people regarding these matters, the statement said.