NMSJ urges lawmakers to avoid conflict of interest in proposed 22A
– The National Movement for Social Justice (NMSJ) has urged lawmakers to carefully reconsider the proposed extension of the terms of judges of the Supreme Court and Court of Appeal under the 22nd Amendment to the Constitution, warning that the reform could place the Supreme Court in a position where it has to hear a case concerning the tenure of its own judges. In a statement, NMSJ General Secretary Sunil Jayasekara said the proposed amendment should be considered through a multi-party discussion involving all relevant stakeholders, with particular attention given to preserving judicial independence.The Bill containing the proposed 22nd Amendment was gazette and presented to Parliament on September 18. Several parties have indicated that they intend to seek judicial review of its constitutionality, the NMSJ said.
The organization said this could create a situation where Supreme Court judges would have to determine an issue directly concerning the extension of their own terms of office.It said this raised the legal principle nemo judex in causa sua — that no person should be a judge in his or her own case.The NMSJ noted that the Supreme Court is empowered under the Constitution to examine the constitutionality of Bills and said the proposed amendment should therefore be drafted in a manner that avoids such a conflict.
It pointed to approaches adopted in other countries, including the use of recently retired judges or separate constitutional courts to hear cases involving similar issues.
The organization said Sri Lanka currently has neither a separate constitutional court nor a panel of retired judges that could be used for such cases.“It was possible to draft the proposed amendment from the outset in a manner that would allow the terms of SC judges to be extended without creating a conflict with established legal principles,” the NMSJ said, adding that it was still possible for lawmakers to make such a correction.The NMSJ also said that if the Supreme Court determines that the proposed amendment requires approval at a referendum, the final decision would rest with the people and would not raise the same concern about judges deciding a matter affecting their own tenure.It warned that extending the terms of sitting judges without a referendum could create perceptions that the administration of justice was not impartial, potentially affecting public confidence in the independence of the Judiciary.
The organization urged lawmakers to exercise the sovereignty of the people in a manner that would not place the Supreme Court in a position where it has to hear its own case or weaken public confidence in the independence of the Judiciary.It also called for constructive discussions with the Bar Association of Sri Lanka to find a solution to the issue.