Former President of the Bar Association of Sri Lanka (BASL), President’s Counsel Saliya Peiris, says the proposed 22nd Amendment to the Constitution is an amendment that should not be enacted.
Speaking during the 360' programme aired on TV Derana last night (24), he said the proposed amendment could have a serious impact on the independence of the judiciary as well as democracy in Sri Lanka.
Peiris stressed that any constitutional amendment affecting judicial independence also affects the sovereignty of the people. Therefore, he said, a two-thirds majority in Parliament alone would not be sufficient and that such an amendment would also require approval at a referendum.
He further rejected claims that extending the retirement age of judges would help expedite the hearing of cases, describing such claims as completely false.
He pointed out that most cases involving the general public are heard in lower courts, including Magistrate’s Courts and High Courts. Therefore, he said, extending the retirement age of judges in the higher judiciary would not result in cases being expedited in the lower courts.
“Our argument is that any amendment that affects the independence of the judiciary requires a referendum because it has an impact on the sovereignty of the people. This is an issue that affects the independence of the judiciary and, consequently, the sovereignty of the people. Therefore, a two-thirds majority is not enough; a referendum is also required,” he said.
However, Peiris emphasized that the central issue was not simply whether the amendment required a two-thirds majority or both a two-thirds majority and a referendum. Rather, he said, the proposed amendment was one that should not be enacted.
“There are amendments that have been approved with both a two-thirds majority and a referendum.
There are also certain things that should not be done on ethical grounds. Leaving aside the legal aspect, which will be determined by the courts, there are things that should not be done. Whether something should or should not be done is not determined solely by these constitutional provisions. It is a matter that affects democracy in this country, the people of this country and the independence of the judiciary,” he said.
Questioning how extending the retirement age of judges would expedite cases, Peiris said cases involving individuals accused of wrongdoing are primarily heard in Magistrate’s Courts, lower courts and the High Court.
“How would cases in the High Court or Magistrate’s Courts be expedited by increasing the retirement age? Will the High Court judges hearing these cases retire within the next two or three years? That is why I say this is a completely false argument,” he said.
Peiris also criticized claims that lawyers were being represented by a small group within the Bar Association in opposing the proposed amendment.
He said the Bar Association of Sri Lanka is the principal organization representing lawyers and that if the majority of lawyers were opposed to the amendment, they could attend the association’s general meeting and express their opposition.
“The members of the Bar Association do not simply act according to what the president says. If they are opposed, they will come forward and say so. There are several lawyers who are considered popular and who hold press conferences at various places, and some of them are members of the executive committee of the Bar Association. There is one particular individual who has not once said at any executive committee meeting that he is opposed to this,” he added.
