9 May 2011, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) notes the reports in the Daily Mirror and Lankadeepa newspapers of 5th May 2011, which disclose that the government is intending to bring further constitutional changes before Parliament soon. Citing government sources, the reports say that the proposed Nineteenth Amendment to the Constitution seeks to introduce a five-year limit on the tenure of office of the Chief Justice, and to vest the power of appointment of the Secretary to the Judicial Service Commission (JSC) in the President.
At present, the tenure of the Chief Justice, in common with all Judges of the Supreme Court, is constitutionally secured until the incumbent reaches the stipulated retirement age of 65 years. This is established in Article 107 (5), which it is important to note is a provision that appears under the sub-heading ‘Independence of the Judiciary’ within Chapter XV: The Judiciary, of the Constitution. The proposed amendment would impose a limitation whereby the Chief Justice is required to relinquish office upon completion of five years in office or the attainment of 65 years of age, whichever occurs sooner. The news reports provide no indication as to the purpose and rationale of this proposal.
The self-regulating modality of an independent JSC, an important aspect of which is the power to appoint its own Secretary, is a widely accepted method of ensuring judicial independence and the separation of powers. The power of the JSC to appoint its own Secretary from among senior judicial officers of the Courts of First Instance is presently established by Article 111G of the Constitution, and supports the autonomy of the JSC in relation to the administration of the judicial system. Removing this power from the JSC and vesting it in the President would compromise the separation of powers and invite executive interference in the administration of justice.
The constitutional provisions dealing with these two specific matters currently in force are generally consistent with international best practice and accepted principles relating to the independence of the judiciary. If the above-mentioned news reports accurately reflect the government’s intention to amend them, then it is incumbent on the government to, fully and openly, explain its reasons for doing so. This is particularly important not only because the proposed constitutional changes involve one of the most fundamental principles of a democratic society, namely the independence of the judiciary, but also because they appear to further strengthen an executive presidency that has already been bolstered by the Eighteenth Amendment barely six months ago.
We earnestly hope that the hurried, secretive, and unacceptable process adopted in the enactment of the Eighteenth Amendment will not be repeated, and that, if it is indeed the intention of the government to introduce further constitutional change, it will provide the information and facilitate the space necessary for a full public debate on the issues prior to enactment.