Rajith Keerthi Tennakoon/CEO Free Lawyers Sri Lanka

The Government is rushing through the Twenty-Second Amendment to the Constitution. The Bill was gazetted on 7 August 2026 and is expected to be presented to Parliament for First Reading within days. The Government aims to complete the entire process by September 2026.

The Amendment raises the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65. It introduces a six-year maximum term for the Chief Justice (subject to the new age limit) and increases the number of Court of Appeal judges. Parallel changes to High Court and lower-court retirement ages and numbers are being pursued through the Judicature Act.

This is not a routine administrative adjustment. It directly alters the tenure and composition of the superior courts through which the judicial power of the People is exercised.

Judicial Power and People’s Sovereignty

Article 3 of the Constitution declares that sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.

Article 4(c) provides that the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution.

Any change that affects the structure, tenure or independence of the courts that exercise this judicial power therefore touches the sovereignty of the People.

Article 83 of the Constitution entrenches a list of fundamental provisions (including Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30, 62 and 83 itself). Amendment of these entrenched articles requires both a two-thirds majority in Parliament and approval by the People at a Referendum.

Even where a proposed amendment does not directly alter the text of an entrenched article, if it substantially affects the content or operation of those articles — particularly the inalienable sovereignty of the People and the judicial power that

 forms part of it — the requirement of a Referendum is engaged. The present Amendment, by changing the tenure and composition of the highest courts, clearly engages this principle.

The Claim that This Was Already Proposed in 2016/17”

Proponents argue that the proposal is not new and was advanced by the Good Governance” government in 2016/17. This claim is inaccurate and misleading.

In 2016 the Public Representations Committee on Constitutional Reform (chaired by Lal Wijenayake) and later a Sub-Committee of the Constitutional Assembly examined judicial reform as part of a much larger exercise. One recommendation that emerged was a uniform retirement age of 65 for both Supreme Court and Court of Appeal judges, together with a possible six-year term limit for the Chief Justice. These were recommendations only.

They were never presented by any sitting government as a Bill. They formed part of an unfinished attempt to draft an entirely new Constitution. That new Constitution was intended to be placed before the Sovereign People at a nationwide Referendum. Because it would have replaced the existing Constitution as a whole, it would not have been subject to the ordinary Supreme Court scrutiny for inconsistency with entrenched provisions.

The Constitutional Assembly process collapsed in 2018 for lack of political consensus. No new Constitution was ever finalised or presented to the People. The 2016 recommendations therefore remained only recommendations inside an aborted process. They confer no mandate for a selective, piecemeal amendment of the present Constitution in 2026.

Conclusion

A recommendation made for a complete new Constitution that would have gone to a Referendum cannot be selectively extracted and used to justify a hurried amendment that alters the tenure of sitting judges of the superior courts.

When the judicial power of the People is affected, the requirement of the People’s approval at a Referendum cannot be bypassed by political convenience or selective citation of unfinished reports.

Rajith Keerthi Tennakoon/CEO Free Lawyers Sri Lanka

Annex – Details

1. The Public Representations Committee on Constitutional Reform (PRC)

As a first step toward a possible new constitution, the Cabinet appointed the Public Representations Committee on Constitutional Reform (commonly called the PRC or PCCCR).

•  Chair: senior lawyer Lal Wijenayake

•  Members drawn from different political parties and civil society (including the present Prime Minister, Dr Harini Amarasuriya)

•  Mandate: receive written and oral public representations and submit recommendations

The Committee held public sittings in all 25 districts, received more than 2,500 oral and written submissions, and produced a detailed report in May 2016.

On the judiciary the PRC recommended, among other things:

•  a uniform retirement age of 65 years for both Supreme Court and Court of Appeal judges (removing the existing difference of 65 and 63);

•  a maximum six-year term for the Chief Justice and the President of the Court of Appeal;

•  restrictions on post-retirement practice by superior-court judges.

These were recommendations arising from public consultation, not enacted law and not a finished constitutional package.

2. The Constitutional Assembly and Its Six Sub-Committees

In March 2016 Parliament resolved to sit as a Constitutional Assembly (a Committee of the Full House) to deliberate on a new constitution.

A Steering Committee (chaired by the then Prime Minister) was formed. On 5 May 2016 the Assembly appointed six Sub-Committees covering:

•  Fundamental Rights

•  Judiciary

•  Law and Order

•  Public Finance

•  Public Service

•  Centre–Periphery Relations

Each Sub-Committee was assisted by experts and produced a report. The reports were tabled in the Constitutional Assembly in November and December 2016. They were never adopted as a final constitutional text; they remained inputs for further deliberation by the Steering Committee.

3. What the Sub-Committee on the Judiciary Actually Said

The Sub-Committee on the Judiciary recommended that the retirement age of judges of all superior courts should be the same, and that 65 years would be preferable. It also suggested that some retired judges could, on the recommendation of a Constitutional Council, be engaged up to the age of 70 in mentoring lower-court judges.  It did not:

•  recommend a selective two-year increase applicable only to sitting judges;

•  propose raising the age from 65 to 67 (or from 63 to 65) as a stand-alone measure;

•  suggest changing the retirement age outside a comprehensive new constitution.

The recommendation formed part of a much larger set of proposals (court structure, constitutional court, appointment mechanisms, judicial independence guarantees, etc.) intended for a complete new constitution.

4. The Same Logic Applies to Two Other Highly Sensitive Recommendations

Exactly the same process produced recommendations on two other fundamental features of the present Constitution: the unitary character of the State and the foremost place given to Buddhism.

On the Unitary State, the PRC could not agree on a single position. It therefore offered three alternative formulations:

•  one that dropped the word unitary” and spoke only of an undivided, independent Republic;

•  one that retained the idea of a unitary state but redefined it as an undivided country with multi-tier governance systems”. In later deliberations of the Steering Committee this formulation was further developed by proposing the use of the Sinhala term ඒකීය (Ekiya) and the Tamil term ஒருமித்த நாடு (Oru Miththa Naadu / Orumiththa Nadu) in place of the English word unitary”. The intention was to describe an undivided and indivisible State while allowing for multi-tier governance, without carrying the full historical and legal connotations attached to the English term unitary”;

•  and one that simply kept the existing Article 2 unchanged.

On the foremost place of Buddhism (Article 9), the PRC again presented alternatives:

•  retain the present Article 9 exactly as it stands;

•  change the chapter heading to Religions” while keeping the text;

•  or rewrite the Article to give all religions equal status.

These, too, were only recommendations. They were never debated and adopted by Parliament as constitutional amendments. They were never put to a referendum. They never became law.

5. Why These Recommendations Have No Validity for Piecemeal Amendments Today

All the recommendations — whether on judicial retirement ages, the unitary state, or the place of Buddhism — were developed inside a process whose clear objective was the making of an entirely new constitution.

A new constitution would have been submitted to the people at a referendum. Because it would have replaced the existing Constitution as a whole, the draft would not have been subject to the ordinary Supreme Court determination on whether any provision was inconsistent with the entrenched clauses of the present Constitution. That context is crucial.

Recommendations made for a complete new constitutional order that would go to a referendum cannot be selectively lifted and used to justify piecemeal amendments to the current Constitution.

If the government today claims the right to pick the 2016 suggestion on judicial retirement ages and turn it into a stand-alone constitutional amendment, then by the same logic it could equally pick the more radical alternatives on the unitary state or on Buddhism and introduce them as ordinary constitutional amendments, simply on the strength of a two-thirds majority in Parliament.

That is not how constitutional change under the present Constitution works. Entrenched provisions and the requirement of judicial scrutiny exist precisely to prevent such selective, one-sided amendments.

6. What Happened Afterwards

The Steering Committee continued its work and produced an Interim Report in September 2017. Political consensus collapsed. No new constitution was ever presented to, or passed by, Parliament. The entire process ended without any constitutional amendment on judicial retirement ages — or on the unitary state or the place of Buddhism — being enacted.

Thus the 2016 reports were never more than sets of recommendations inside an unfinished, multi-party constitution-making exercise that ultimately failed.

7. Why the Present Claim of Hypocrisy” Is Misleading

•  The 2015–2019 process was an attempt to write a new constitution through public consultation, multi-party sub-committees and parliamentary deliberation.

•  The present proposal is a stand-alone, rushed constitutional amendment whose practical effect is widely understood to extend the tenure of the current Chief Justice (due to retire on 1 December 2026) and, later, other sitting judges.

•  Equalising the retirement age at 65 (as recommended in 2016) is fundamentally different from increasing it by two years for currently sitting judges by means of a hurried amendment without gazetted draft, without public consultation, and without parallel reform of related public services.

•  Participants in the 2015–2019 process (including members of the present government who were then in opposition) never voted for, or enacted, any increase beyond the existing constitutional ages.

Supporting a broad reform conversation is not the same as endorsing every individual recommendation, still less endorsing a selective extension engineered a decade later.

The same principle applies with even greater force to the recommendations on the unitary state and the foremost place of Buddhism. They, too, remain only recommendations. They confer no mandate for piecemeal change.

8. Summary:

The 2015–2019 constitutional reform process began with a public-consultation committee chaired by Lal Wijenayake and continued with a Constitutional Assembly and six parliamentary Sub-Committees.

One of those Sub-Committees recommended a uniform retirement age of 65 for superior-court judges as part of a possible new constitution. The same process produced divided recommendations on the unitary character of the State and on the constitutional place of Buddhism.

None of these recommendations was ever adopted by Parliament. None became law. All of them were framed for a complete new constitution that would have gone to a referendum and therefore would not have been tested against the entrenched provisions of the existing Constitution.

Citing an unfinished 2016 suggestion does not justify a sudden, non-consultative amendment in 2026 whose immediate and foreseeable effect is to prolong the tenure of particular sitting judges.

If such selective use of old recommendations is accepted for the judiciary, the same logic could be used tomorrow to alter the unitary character of the State or the foremost place of Buddhism by simple two-thirds majority.

Process, transparency, institutional necessity and the avoidance of personalised or selective legislation remain essential when the independence of the judiciary — and the basic structure of the Constitution itself — is at stake.

Note was prepared by Sudarshana Gunawardana, Attorney at Law

Rajith Keerthi Tennakoon

Former Governor of Uva, Southern and Central Provinces

Former Executive Director of Campaign for Free and Fair Elections (CaFFE) and Center for Human Rights and Research – CHR Sri Lanka