Legal Resources & Insights

The Supreme Court considered a substantial number of petitions challenging the constitutionality of two Bills:

• The Bill titled “Twenty-Second Amendment to the Constitution”; and
• The Bill titled “Judicature (Amendment) Act, No. 02 of 2026.”

These Bills were presented as measures intended, among other things, to address the administration of justice and judicial capacity.

The principal constitutional question concerned whether the Bills principally would affect the independence of the Judiciary, which the Petitioners argued forms part of the sovereignty of the People protected by Article 3 of the Constitution therefore whether the proposed amendments required approval at a referendum under Article 83 of the Constitution.

What did the Bills seek to achieve?

The proposed Twenty-Second Amendment to the Constitution principally sought to:

• increase the retirement age of Judges of the Supreme Court from 65 to 67 years;
• increase the retirement age of Judges of the Court of Appeal from 63 to 65 years;
• introduce a six-year limitation on the term of office of the Chief Justice, subject to a specific provision concerning the incumbent Chief Justice; and
• increase the number of Judges of the Court of Appeal from 19 to 24.

The corresponding Judicature (Amendment) Bill proposed, among other matters:

• increasing the retirement age all other judges by two years and;
• increasing the number of High Court Judges from 110 to 120

The Principal Arguments of the Petitioners

The Petitioners raised several constitutional objections.

• Judicial Independence

The principal argument was that judicial independence forms part of the sovereignty of the People protected by Article 3 of the Constitution. The Petitioners argued that extending the retirement age of incumbent Judges could affect the independence of the Judiciary.

• Alleged Financial Benefit or Inducement

It was argued that extending the retirement age would confer an additional financial benefit upon incumbent Judges by allowing them to remain in office for a further two years. The Petitioners contended that such a benefit could create an inducement or favour and thereby affect judicial independence.

• Requirement of a Referendum

The Petitioners argued that because judicial independence forms part of the sovereignty of the People, the proposed constitutional amendments were inconsistent with Article 3 and therefore required approval by the People at a referendum under Article 83.

• “Court Capture” / “Court Packing”

Some Petitioners characterized the proposed changes as potentially facilitating “Court Capture” or “Court Packing”, particularly because the Bills would alter the composition and tenure of the superior courts.

• Lack of Consultation

It was also contended that the Government had failed to engage in an adequate consultative process with relevant stakeholders before introducing the Bills.

• Chief Justice’s Term

The proposed six-year limitation on the term of the Chief Justice was separately challenged, including on the basis that it could affect the tenure of the incumbent Chief Justice.

The Court’s Approach to Judicial Independence

The Court strongly reaffirmed that judicial independence is an essential component of the sovereignty of the People under Article 3. It referred to the constitutional preamble, which expressly refers to the protection of the independence of the Judiciary, and stated that judicial independence is fundamental to the protection of fundamental rights, the rule of law and the sovereignty of the People. The Court described judicial independence as the “cornerstone” and “bedrock” of the judicial system. The Court then identified several constitutional safeguards for judicial independence, including:

• the constitutional procedure for appointment of superior court Judges;
• security of tenure;
• protection against removal except through the constitutionally prescribed procedure;
• protection of judicial salaries;
• protection against reduction of pension entitlements;
• administrative independence under Article 111C.

The Court therefore accepted the fundamental proposition advanced by the Petitioners that judicial independence is constitutionally protected.

However, the crucial question was whether increasing the retirement age constituted an interference with that independence.

The Court’s key finding on Increasing the Retirement Age

This was the central finding of the case. The Court distinguished between Reduction of tenure and Extension of tenure and accepted that reducing the constitutionally guaranteed tenure of an incumbent Judge could threaten judicial independence. However, it held that an increase in the retirement age is fundamentally different.

The Court relied on its earlier decision in the Inland Revenue (Amendment) Bill, explaining that the earlier statement concerning constitutional amendments affecting judicial tenure was concerned with a reduction of the tenure of incumbent Judges—not an increase.

Accordingly, the Court stated, in substance diminution and increase are two different things hence an increase in retirement age does not adversely affect the independence of a Judge.

“Inducement” or “Legislative Bribe” Argument Rejected

The Petitioners argued that the additional two years would constitute a positive benefit or inducement. The Court rejected this reasoning. A particularly important comparison made by the Court was with increases in judicial salaries and pensions.

The Court reasoned that if an increase in a Judge’s salary is not considered an unconstitutional inducement merely because it benefits an incumbent Judge, there is no principled basis for treating an increase in retirement age differently.

The Court further noted that the Petitioners had not produced evidence that any Judge had requested an increase in the retirement age or the Government had granted the increase in response to a request by particular Judges. This was significant to the Court’s conclusion.

Non-Discriminatory and Non-Discretionary Nature of the Extension

The Court placed considerable emphasis on two characteristics of the proposed extension (i) Non-discriminatory – The two-year extension would apply to all Judges, rather than selected Judges (ii) Non-discretionary – the continuation would arise automatically under legislation and would not depend upon the discretion of the Executive. The Court considered these characteristics particularly important.

It therefore held that the proposal did not create a situation in which a Judge would have to please the Executive in order to obtain an extension of service. The Court concluded that the proposed extension therefore does not threaten the independence of the Judiciary.

South African Constitutional Court Decision Distinguished

The Petitioners relied on a South African case – Justice Alliance of South Africa v President of the Republic of South Africa and Others [2011] ZACC 23; 2011 (5) SA 388 (CC) – concerning the extension of the tenure of the Chief Justice. The Supreme Court distinguished that case.

The significant difference was that, in the South African case, the Executive had been given discretion to decide whether an individual Chief Justice would continue in office beyond retirement. The South African Constitutional Court considered that arrangement problematic because a Judge could potentially become dependent upon the Executive for continuation in office. The Sri Lankan Bills, however, did not confer such discretionary power upon the Executive. The extension was proposed by legislation and applied uniformly. Therefore, the Supreme Court held that the South African decision did not support the Petitioners’ challenge.

“Court Capture” and “Court Packing”

The Court also rejected the argument that the Bills constituted a project of Court Capture or Court Packing.

One important factual consideration was that the Judges who would benefit from the extension had already been serving under previous Governments and different political administrations. They were therefore not Judges appointed by the present Government for the purpose of obtaining a favourable composition of the Court. The Court consequently found no sufficient basis for the Court-packing argument.

International Practice

The Court considered comparative material concerning judicial retirement ages. It referred, among other jurisdictions, to the United Kingdom, United States, India, Canada, Australia, New Zealand, Japan, Brazil and Philippines.

The Court noted that retirement ages for Judges vary considerably internationally and that several jurisdictions permit Judges to serve until ages higher than those presently applicable in Sri Lanka.

The Court also referred specifically to developments in India, where measures had been taken to permit judicial officers to continue beyond existing retirement ages in response to concerns regarding vacancies and access to justice.

The Court considered these comparative developments relevant to the argument that increasing judicial retirement ages is not inherently inconsistent with judicial independence.

Government Policy and Access to Justice

The Court regarded the Bills as part of a broader Government policy concerning judicial reform. It noted that the Bills did not deal exclusively with retirement ages. They also sought to:

• increase the number of Court of Appeal Judges;
• increase the number of High Court Judges; and
• address the term of office of the Chief Justice.

The Court considered these measures to be directed, at least in part, towards increasing judicial capacity and access to justice. It therefore found no constitutional basis to characterize the policy itself as unreasonable.

Consultation Argument Rejected

The Petitioners argued that the Government should have consulted relevant stakeholders before introducing the constitutional amendment.

The Court held that the Petitioners had not identified any constitutional or statutory provision requiring such consultation before the Bill was gazetted and placed on the Order Paper.

The Court also referred to Article 124, which substantially restricts the jurisdiction of courts and tribunals to inquire into the constitutionality of Bills or their compliance with the legislative process except within the specific constitutional mechanisms.

Accordingly, the Court rejected this argument.

Six-Year Term of the Chief Justice

The Bill proposed a provision limiting the tenure of a Chief Justice to six years, even if that person’s ordinary retirement age had not yet been reached. The Court considered this provision separately.

The Court observed that limiting the period during which one person holds the office of Chief Justice could prevent the concentration of powers and functions in one individual for an excessively long period. The Court therefore regarded a fixed term as capable of enhancing judicial independence, rather than undermining it.

However, the Court identified an important constitutional problem concerning the incumbent Chief Justice. It held that the six-year limitation could not operate so as to reduce the tenure of the person who was already serving as Chief Justice when the amendment came into operation. Accordingly, the Court required an additional proviso expressly protecting the incumbent Chief Justice.

The Court’s Final Determination

The Supreme Court ultimately determined:

• No referendum required

The provisions of the Twenty-Second Amendment to the Constitution Bill did not require approval by the People at a referendum under Article 83.

• Judicature Amendment Bill constitutionally permissible

The Judicature (Amendment) Bill was held not to be inconsistent with the Constitution and could therefore be passed by a simple majority of Parliament.

• Sinhala text correction

The Court directed a correction to the Sinhala wording of the proviso concerning the Chief Justice’s term.

• Protection of incumbent Chief Justice

The Court directed that a further proviso be inserted providing that the six-year term limit would not apply to the person holding office as Chief Justice when the Act comes into operation.

The Core Ratio / Key Legal Findings

1. Judicial independence is encompassed within the sovereignty of the People protected by Article 3.
2. Security of tenure is an important constitutional safeguard of judicial independence.
3. However, an increase in the retirement age of Judges is fundamentally different from a reduction of judicial tenure.
4. A uniform increase in retirement age applicable to all Judges, without Executive discretion, does not constitute an inducement or favour which compromises judicial independence.
5. The fact that an amendment produces a financial or other benefit to incumbent Judges does not, by itself, make it an unconstitutional inducement.
6. The constitutional objection to interference with judicial tenure is particularly concerned with measures that diminish or threaten the security of tenure, rather than measures which extend it.
7. An extension that is non-discriminatory and non-discretionary does not make Judges dependent upon the Executive for continuation in office.
8. The Court therefore found no violation of Article 3 or the constitutional protection of judicial independence arising from the proposed two-year extension.
9. The proposed increase in the number of Judges and the extension of retirement ages could legitimately form part of a policy directed towards improving judicial capacity and access to justice.
10. A fixed six-year term for the Chief Justice is not inherently unconstitutional and may serve to prevent excessive concentration of powers, but it cannot constitutionally operate retrospectively to shorten the tenure of the incumbent Chief Justice.
11. Consequently, no referendum under Article 83 was required, and the Judicature (Amendment) Bill could be enacted by a simple majority.