Amid the political cacophony surrounding the proposed Twenty Second Amendment to the Constitution, which contains within it provisions to extend supreme court judges’ tenure, there is one question that cuts across which side of the argument one looks at the issue from. Should judges be compelled to hear a case about their own tenure, when that can be avoided?
Hearing one’s own case vs law of necessity
As the bill of the Twenty Second Amendment has been gazetted, and presented to the Parliament, the issue is real. As of 20th of August, 37 or more petitions have been filed against the bill. The matter goes to the Supreme Court, and the judges hearing it will be ruling on a law that adds years to their own time serving on the bench.
Such a situation sets two foundations of jurisprudence on a collision course. The first is an old maxim often considered to be absolute: nemo judex in causa sua, which means, no one may judge their own case. The second exists precisely because the first cannot always be honoured: the doctrine of necessity, which allows an interested tribunal to decide a matter anyway when there is genuinely no one else to do so. Our Constitution has defined that the constitutionality of bills must be tested by the Supreme Court. The present bill of the Twenty Second Amendment has been drafted in a way to compel the judges of the supreme court to hear their own case.
What do other countries do?
Other democracies have built ways around this problem in two ways. The first method is to supplement the Supreme Court with ‘judges unaffected by a conflict of interest. Canada’s Supreme Court Act lets the Chief Justice call in a judge from the Federal Court of Appeal whenever a sitting judge cannot hear a case (with disqualification for conflict of interest named outright as one of the reasons). The United Kingdom keeps a Supplementary Panel of recently retired Justices who can be summoned to fill out a bench for precisely this kind of situation. India’s Supreme Court has generally sidestepped this problem simply by being large. However, being large is not sufficient safeguard against a bill such as the 22nd Amendment, since it applies to all judges in the supreme court. The second method is to set up a separate mechanism altogether, called Constitutional Courts. Countries like Austria, Germany, Italy, Spain, South Korea, South Africa, Indonesia, Thailand, Turkey, and South Africa constitutionality of bills are examined by these constitutional courts. Sri Lanka has adopted none of these fixes. Its Supreme Court is relatively small, there is no reserve panel of retired judges to draw on, and no constitutional court to decide the matter without being affected by it.
Two options
In this limited scope that Sri Lanka has under the present constitution, this collision sounds unavoidable. But, during the drafting stage of the bill, this collision of principles could have been avoided. Yet, if the intentions are clear, a correction is still possible. There are two options that seem to be available for those who are making this law, i.e. the Cabinet, and the parliament. And both options suggest ways of avoiding a situation that could invoke the doctrine of necessity altogether, by amending the present bill.
The cleanest option would be to apply the higher retirement age only to judges appointed to the supreme court after the amendment takes effect. In this case, none of the sitting bench would benefit from the law, and therefore none of the current judges in the supreme court hold any personal stake in the decision they make with regard to the constitutionality of the bill. The doctrine of necessity would never need to be invoked at all.
A second option, nearly as clean, is to confine the two-year extension of term of service to the five or so most junior judges currently on the Supreme Court, together with every judge appointed from here on. Currently, there are thirteen judges in the supreme court, and the tenure of eight or so senior most judges will not be directly affected by such an arrangement. This will leave the Chief Justice free to draw the panel that hears any petition against this bill entirely from among those senior judges who gain nothing from the change. Sri Lankan constitutional benches have been at three judges and at five before, and when eight judges are completely untouched by the bill, the Chief Justice would not be compelled to have a very narrow pool to constitute the bench.
Judicial Independence is not be be tampered with
In the Constitution of Sri Lanka, the only reference to retirement ages of any elected or appointed officials pertains to the judges of the Supreme Court and the Court of Appeal. That is under Article 107(5) and this is a fundamental way in which judicial independence has been guaranteed. Such insulation to the tenure of the judges is necessary, because they check the Executive and the Legislature. Therefore, the judiciary must be kept out of reach of an ordinary parliamentary majority. In dealing with a serious matter like this, prudent government action is a legitimate expectation on the side of the people. When relatively easy fixes are available, why a government would choose the harder and more contestable path is a fair question, but it belongs to the domain of political incentive rather than what is jurisprudentially correct, and therefore just.
However, against the relative success of Prof. Jayadeva Uyangoda’s discursive blurring of the topic in a recent interview with the Sunday Observer, one caution is worth being reminded. Anti-elitist rhetorics have often captured the progressive discourse and supported reforms that have diluted institutional independence. To look at a parallel, but different example, Uyangoda himself explained in a 2024 interview reflecting on the challenges facing the NPP government. Lamenting the decline of Sri Lanka’s public administrative service, he traced it back to the 1972 Constitution, which subordinated the public service to direct political authority, arguing that this is when “the independent nature of the public service” began to erode. The reader should not forget that these reforms too were introduced with the same anti-elite and progressive leftist rhetorical veneer. A safeguard is not made illegitimate by being old, or by having been designed under circumstances very different from today’s.
One remark made by President Anura Kumara Dissanayake at the meetings with representatives of the Bar Association is worth noting. In the exclusively single sided media release, following the President’s meeting with the Bar Association, he suggested that “the judiciary has not had a path marked always with a ‘pleasant smell’, and therefore it is an overstatement to suggest this reform may lead to people losing trust in the judiciary”. This is clearly a tacit acknowledgement that the president is aware of the negative implications of this reform, and trusts that he too will have his due share of tampering with judicial autonomy, much like his all presidential predecessors.
Judiciary as the ultimate victim
None of this should tip us into a complete pessimism about the judiciary itself. Sri Lanka’s higher courts have, across their history, found ways to hold their independence, and 2023 offers a fair recent example. When judges’ own associations asked the Court of Appeal to keep the newly increased income taxes inapplicable to judges, a majority of the five-judge panel decided against the petition, allowing the tax deductions from their own salaries to continue. Quoting precedents, the judges decided that there was no principled reason to exempt judges from a tax applied to the wider public, as taxation was a matter of the executive and the legislature. This is a fair example, but a modest one, because comparative precedent on taxing judicial salaries already existed elsewhere and gave the Court solid ground to stand on. The retirement age question offers no such comparable ground.
How the judiciary is perceived by the public may be shaped by the issue’s trajectory over the next few weeks. Because of the collision between the two legal principles of hearing one’s own case vs. the law of necessity that follows when no one else can, an affirmative decision by the Supreme Court may risk public opinion in two opposite ways. If the Supreme Court finds the amendment consistent with the Constitution’s entrenched provisions, that decision may be read, fairly or not, as judges ruling for their own benefit, regardless of the quality of the reasoning behind it. Similarly, once such an amendment is passed extending the retirement age of the judges, any decision against the Executive by the courts may be framed by the government-leaning political pundits as judicial elitism, and as a judiciary now straining to prove its independence by ruling against the very Executive that extended its term. Either outcome damages the judiciary’s legitimacy and public trust, and both trace back to the same root. The issue of the retirement age of judges should never have been brought before the same judges whose terms are likely to be extended by their own decision.
Discussing motives, including those of judges, is not the purpose of this article. However, if the government does not fix this obvious issue of collision of principles of justice, thereby undermining the image of judicial integrity, the judiciary itself may correct it. In the absence of unaffected panels of judges, or constitutional courts, the judiciary may avoid the legitimacy trap set by the bill by passing over the final word to the people who hold sovereignty in the first place. By way of a referendum, what is not corrected at the executive or legislative level may be corrected judicially, by letting the people make the final call.
Harindra B Dassanayake
This article was originally published in Midpoint on 20 August 2026
Image copyright © Presidential Secretariat
