By Adolf
It appears that the die has been cast on the proposed 22nd Amendment, which would extend the retirement age of Supreme Court and Court of Appeal judges and, in effect, enable the current Chief Justice to remain in office for longer. The Government appears unshaken in its determination to ensure its passage into law.At the heart of the controversy, however, lies a question that goes far beyond the merits or otherwise of extending the tenure of judges:
Can judges themselves decide the constitutional fate of a law that directly affects their own tenure?
In a democracy governed by the separation of powers, this should make us profoundly uncomfortable.
The Government’s argument is not without merit. Extending the tenure of judges by two years could allow them to complete cases that have remained before the courts for years, sometimes decades. Changing judges in the middle of complex proceedings can result in hearings being repeated, causing further delays and frustration for litigants. For victims who have waited years for justice, continuity in the judiciary could have practical advantages.
But the issue is not simply whether two additional years would be useful. It is whether those whose tenure is being extended should have a role in determining the constitutional validity of that extension.
Consider the obvious analogy. What would happen if Parliament passed legislation extending the life of Parliament by two years? Or if the President sought to extend his or her own constitutional term by two years? Surely the public would immediately ask whether the people—not those who directly benefit from the extension—should have the final say.
The Judiciary is no less important because it is the third branch of government.
The Executive exercises executive power. Parliament exercises legislative power. The Judiciary exercises judicial power. The separation of these powers is not a technical constitutional arrangement; it is one of the fundamental safeguards of democracy.
If Parliament cannot simply extend its own life without complying with constitutional requirements, and the President cannot unilaterally extend his or her own term, why should the Judiciary be placed in a different position when the tenure of judges themselves is at stake?
There is an even more serious issue.
If the Supreme Court has already determined that such a constitutional change requires the approval of the people through a referendum, that determination cannot simply be treated as an inconvenient obstacle. It represents the constitutional position as determined by the highest court.
For judges who may themselves benefit from an extension of their tenure to subsequently sit in judgment on whether that requirement should be revisited would raise an extraordinary question of institutional propriety.
How can judges decide their own fate?
This is not an allegation of bad faith against any judge. Judges are expected to act according to their conscience, the Constitution and the law. But constitutional legitimacy is not only about actual impartiality; it is also about maintaining public confidence in impartiality.
Given the controversy surrounding the Chief Justice, it would, in my view, do a great deal for public confidence if he were to consider stepping aside from any proceedings directly concerning the extension of his own tenure. That would not be an admission of wrongdoing. It would be a powerful demonstration of the principle that justice must not only be done, but must also be seen to be done.
Lord Denning put the principle beautifully: “Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”
The Government may genuinely believe that extending judicial tenure will improve the administration of justice. Critics may genuinely believe that it could weaken judicial independence by creating a perception of indebtedness to the Government. Both positions deserve to be debated.
But there is a fundamental constitutional safeguard that should not be compromised: those who directly benefit from a change in the rules should not be the ultimate arbiters of whether those rules can be changed.
The strongest answer to the critics of the 22nd Amendment will therefore not come from Government ministers or parliamentary speeches. It must ultimately come from the institutions themselves.
If the existing Supreme Court determination requires a referendum, then the safest and most democratic course is surely to respect that determination and allow the people to decide.
God help us if judges themselves sit in judgment on that decision and reverse it in circumstances where their own tenure is at stake.
This is not about personalities, political parties or individual judges. It is about a principle far bigger than all of them.
No Parliament should decide its own extended life. No President should decide his or her own extended term. And no Judiciary should determine, without the people having their constitutionally required say, its own extended tenure.
That is the essence of the separation of powers.
Sri Lanka has experienced enough institutional erosion to understand that once constitutional safeguards are weakened, they are difficult to restore.
The 22nd Amendment may ultimately be good or bad policy. But before we debate its merits, we must ask the more fundamental question:
Who should have the final say on the constitutional future of those entrusted with interpreting the Constitution—the judges themselves, Parliament, or the people? The people
In a democracy, that answer should never be in doubt.
The post It is very Ugly for the Supreme Court Judges to Decide Their Own Fate? appeared first on LNW Lanka News Web.
