Mahinda, Gotabaya, and now Anura too amend the Constitution for an individual
President Anura Kumara Dissanayake’s government is reportedly planning to introduce a constitutional amendment to extend the retirement age of superior court judges. This amendment is expected to allow the current Chief Justice Preethi Padman Surasena to remain in office for another two years. If passed, it would become the 22nd Amendment to the 1978 Constitution. The proposal has already drawn strong opposition from lawyers concerned about judicial independence and constitutional traditions.
The President’s effort to extend the retirement age of superior court judges is now clearly aimed at keeping the current Chief Justice Preethi Padman Surasena in that position for another two years.
Since Chief Justice Surasena will turn 65 this December, he is due to retire. If the retirement age is extended before then, he will be able to continue serving as Chief Justice for another two years.
The retirement age of superior court judges is stipulated in Article 107 of the Constitution. According to it, a Supreme Court judge must retire at 65, and a Court of Appeal judge at 63. Changing these age limits requires a constitutional amendment.
It is reliably understood that the President is firmly taking steps to introduce this constitutional amendment. If enacted, it will be the 22nd Amendment to the 1978 Constitution.
What is particularly significant is that this 22nd Amendment appears to be tailored for a single individual — specifically to keep the Chief Justice in office for another two years.
Amendments for Individuals or Personal Agendas
A bitter truth about constitutional amendments in Sri Lanka is that several of them were made to fulfil the wishes or personal agendas of individuals.
The 1978 Constitution itself was introduced by J.R. Jayewardene primarily to achieve his goal of establishing an executive presidency.
The Jayewardene government brought the 1st Amendment to remove the power of the Court of Appeal to issue writs against decisions of special presidential commissions and to grant that power exclusively to the Supreme Court. A special presidential commission appointed by President Jayewardene had decided to strip former Prime Minister Sirimavo Bandaranaike of her civic rights. The purpose of the amendment was to prevent any writ applications against that decision from being filed in the Court of Appeal. The Chief Justice at the time was Neville Samarakone, who had been appointed after the 1978 Constitution and was one of Jayewardene’s closest friends and his personal lawyer. As expected, the Supreme Court approved the 1st Amendment, thereby curtailing the powers of the Court of Appeal.
The 2nd Amendment introduced by President Jayewardene allowed MPs to cross over from the opposition to the government but did not permit crossing in the opposite direction. Neville Samarakone’s Supreme Court also approved this amendment.
Jayewardene’s 3rd Amendment (which ultimately could not be passed) was bizarre, shameful, and ridiculous. It clearly demonstrated how dangerously and cynically a government with a two-thirds majority could play with the Constitution.
Not even the Jayewardene government thought it possible to claim that no bye-election should have been held, on the grounds that the disqualified Mr Pilapitiya no longer existed, and therefore did not need to be replaced. Instead it hit on the happy remedy of proposing that there should be two members for Kalawana, one to be elected as a replacement for the original Pilapitiya, the other the reincarnated Pilapitiya who had been nominated to the vacancy. This required a Constitutional Amendment, the Third proposed by the Jayewardene government, to allow Kalawana to have two Members.
The Supreme Court had subverted the jurisdiction of the Court of Appeal by permitting the First Amendment to the Constitution, and had facilitated crossovers to government but not from government through the Second Amendment. But by 1981 even the handpicked Chief Justice, Neville Samarakoon, who had been Jayewardene’s personal lawyer, had begun to feel that enough was enough, a trajectory that led to him being brought before the Bar of Parliament a few years later.
The Court ruled, not that the proposed Third Amendment was abject nonsense, which I suppose Courts are too proper to say, but that it required not just a two-thirds majority in Parliament, but also a Referendum, since it affected the franchise. Since this would have been a truly preposterous measure to propose for Sri Lanka’s first Referendum (that honour was reserved for the Amendment that extended the life of the 1977 Parliament for six years), Jayewardene found himself in a dilemma.
He was saved by the then Secretary General of Parliament, who had not been consulted when the then Speaker created the Second Mr Pilapitiya. Finally called on to advise, a procedure the Jayewardene government had avoided given his understanding of Parliamentary practice, he suggested Mr Pilapitiya resign. He was reminded that that would result in a vacancy, and that ‘the Secretary-General of Parliament shall forthwith inform the Commissioner of Elections of such vacancy’, whereupon there would have to be yet another nomination. His response was that, in reading that section of the Constitution, the stress should be not on ‘shall’, but on the word ‘vacancy’. His view was that, if the Second Mr Pilapitiya took himself away, there would be no hole created, since he was in any case a figment of the Speaker’s imagination.
Thereafter, what entered history as the 3rd Amendment was one that allowed a presidential election to be held before the completion of the President’s first term. It gave the sitting President the opportunity to call the next election at a highly advantageous time when the opposition was weak. This too served J.R. Jayewardene’s personal interests.
The 17th Amendment was introduced at the insistence of the Janatha Vimukthi Peramuna as a condition to help President Chandrika Bandaranaike Kumaratunga protect her government from collapse. Had there been no threat to Chandrika’s government at the time, there would have been no 17th Amendment.
The 18th Amendment was brought to allow President Mahinda Rajapaksa to hold office for more than two terms. It removed the original constitutional limit of two terms for a President. In effect, it allowed a President to remain in power until death by calling elections at advantageous moments (as enabled by the 3rd Amendment).
The 20th Amendment was introduced by President Gotabaya Rajapaksa to enable his brother Basil Rajapaksa, who held citizenship of another country, to enter Parliament. It removed the constitutional barrier that prevented dual citizens from becoming MPs. The 19th Amendment had imposed a disqualification on dual citizens holding parliamentary seats.
Anura too follows the path of JR and Mahinda
Now, the 22nd Amendment expected to be introduced by the government of President Anura Kumara Dissanayake and the National People’s Power will also follow the same path — granting an extension of service for another two years to the current Chief Justice Preethi Padman Surasena.
Although extending the tenure of superior court judges will result in longer service for all judges, that is not the primary objective. The main goal is to retain the current Chief Justice in office.
The reason for keeping the current Chief Justice in office longer is to bring the government’s key election promise of “punishing the corrupt” to a decisive conclusion. The President has repeatedly stated this. In recent meetings with judicial officers and NPP lawyers, he has said that “to get this work (punishing the corrupt) done, the current Chief Justice must remain in office for at least another two years.”
These statements make it clear that the President wants to keep a Chief Justice he favours in office for another two years, and that he has no confidence in whoever would be appointed if the current Chief Justice retires at the end of this year. This is a clear interference with the independence of the judiciary. It is no different in any way from the shameful steps taken by the Mahinda Rajapaksa government to remove Chief Justice Shirani Bandaranayake, who had given rulings unfavourable to them.
What is most dangerous is that the current government is also attempting to amend the supreme law of the land — the Constitution — in a whimsical manner to suit personal agendas. By doing so, the current President places himself on par with previous Presidents J.R. Jayewardene, Mahinda Rajapaksa, and Gotabaya Rajapaksa.
It is deeply regrettable that a President who came to power promising to change the cursed system of the past 76 years is now engaging in the very same practices.
Even worse is the precedent set by the Anura Kumara Dissanayake government — just like previous governments — that the Constitution can be amended for personal purposes. This is particularly serious because the National People’s Power had promised during the election to abolish the executive presidential system and introduce a new constitution that would fundamentally change the entire state structure of Sri Lanka. A President who came to transform the entire constitutional system of the country has now thrown that promise into the dustbin and is preparing to engage in “constitutional tinkering” merely to keep one individual in office longer.
Opposition from the Legal Profession
The Judicial Services Association, comprising District and Magistrate Court judges, has expressed its concern over the President’s initiative. The Bar Association of Sri Lanka has already voiced its opposition. Numerous lawyers’ associations — including the Colombo High Court Lawyers’ Association, Colombo Magistrate Court Lawyers’ Association, and the Free Lawyers — along with many prominent senior and President’s Counsel, have already publicly expressed their opposition to the President’s move.
A group of the country’s most senior lawyers and legal academics, who recently issued a statement on the matter, pointed out that this action would effectively lock the judiciary in its current state.
“The Lawyers’ Collective expresses its concern about a proposed move by the government to extend the retirement age of judges of the Supreme Court and Court of Appeal. … extending the retirement age of sitting judges would be a clear inducement, benefit or advantage conferred on such judges by the government … and is therefore a blatant violation of the independence of the judiciary.”
Capturing the Judiciary
The current government possesses executive presidential power and a two-thirds majority in Parliament. Yet, knowing that this alone is not enough to fulfil its political wishes, the government is making a destructive attempt to bring the power of the judiciary under its control as it desires.
After the proposed amendment, for another two years the country will have a Chief Justice who remains in office thanks to a two-year service extension granted as a favour by the executive. It is naïve to expect adverse rulings against the government from such a Chief Justice and a superior judiciary.
For example, suppose the government wishes to introduce a constitutional amendment to extend its own term without holding an election. That draft would likely be passed in Parliament. The next step would be the judiciary. If the Supreme Court rules that no referendum is required and that a two-thirds parliamentary majority is sufficient, what can be done? Is there any other court to appeal to? No.
This government behaves as if it is the only one that received a massive mandate to cleanse Sri Lanka. Such a government can misuse the law as it wishes under the guise of “cleansing the country” and introduce various repressive laws. What would the situation be if a judiciary that approves all such actions emerges? Considering the partisan and extremely repressive manner in which this government is already using the Prevention of Terrorism Act, one can imagine the shape of future repression.
What can one say?
Another important point is that this government is actually controlled by the Bolshevik-style party based in Pelawatte,(Battaramulla). The General Secretary of the party has already made preemptive statements about provincial council elections and the coal tender ruling. In the future, when matters come before the judiciary, is there not a dangerous possibility that decisions will be taken from the Pelawatte party office in exactly this manner? What can one say then?
