The Supreme Court’s confidential determination on the 22nd Amendment is with the Speaker of Parliament. It is expected to be communicated to the House today.

The Bill itself is short. The arguments around it have not been.

Presented by Justice Minister Harshana Nanayakkara on August 18, the proposed constitutional amendment changes the retirement ages of judges of the Supreme Court and Court of Appeal and increases the maximum number of Court of Appeal judges.

What the Bill actually changes

The figures above are taken directly from the proposed Twenty Second Amendment Bill published by Parliament.

The Bill also adds a specific provision for the Chief Justice. Retirement would occur either when the Chief Justice reaches 67 or when six years have passed from the date of appointment as Chief Justice, whichever comes first.

The proposed changes are contained in amendments to Articles 107 and 137 of the Constitution.

Why did the Supreme Court become involved?

The Constitution gives the Supreme Court jurisdiction to determine whether a Bill is inconsistent with the Constitution. When petitions challenging a Bill are filed, Parliament cannot proceed with it until the Court’s determination is announced in Parliament.

That is what has happened with the 22nd Amendment.

More than 30 petitions had been filed before the Supreme Court by the time the filing period closed on September 2, including petitions both supporting and challenging the proposed amendment. Lakbima News reported at the time that 27 petitions opposed the amendment while three supported it.

The hearings were subsequently held before a five-member bench headed by the Chief Justice and concluded on September 2. The Court then informed the Speaker that its determination would be communicated to Parliament.

The central constitutional question included whether the proposed changes affect provisions protected by Article 3 of the Constitution and therefore whether approval by the people at a referendum would also be necessary.

Petitioners challenging the Bill argued that changes to judicial retirement ages could affect judicial independence and should therefore require a referendum. The Attorney General’s position was that the Bill did not amend any entrenched provision requiring a referendum.

Those are arguments presented to the Court. The Court’s determination is what Parliament is waiting to hear today.

What happens after today’s announcement?

The answer will determine how the Bill proceeds.

Parliament has already allocated Thursday and Friday for the second-reading debate on the 22nd Amendment and the separate Judicature (Amendment) Bill.

The Supreme Court’s determination does not itself enact the amendment. The Bill still has to go through the parliamentary process required by the Constitution, depending on the Court’s determination.

The separate Judicature (Amendment) Bill deals with the retirement ages of judges in the High Court and other courts. It is scheduled to be debated alongside the constitutional amendment.

For now, Parliament has the Bill, the Court has completed its constitutional review, and the Speaker has the determination. The next piece of the process is expected in the House today.