In a statement, NMSJ General Secretary Sunil Jayasekara said the proposed amendment should be considered through a careful, multi-party discussion involving all relevant stakeholders, with particular attention given to protecting the independence and integrity of the Judiciary.

The organisation said several parties have already indicated that they intend to seek judicial review of the constitutionality of the Bill, which was gazetted and presented to Parliament on August 18.

According to the NMSJ, this could create a situation in which Supreme Court judges are required to determine the constitutionality of a constitutional amendment that directly affects the extension of their own terms of office.It said this raises the fundamental legal principle that no person should be a judge in his or her own case, known as ‘nemo judex in causa sua’.

The NMSJ noted that Article 105(7) of the Constitution contains the only provision referring to the retirement age of judges of the Supreme Court and Court of Appeal, describing it as an important safeguard for judicial independence.The organization stressed that the Judiciary plays a vital role in determining the legality and constitutionality of actions taken by the Executive and Legislature, making the protection of judicial tenure and privileges essential.It said the proposed amendment could have been drafted from the outset in a manner that would allow the terms of Supreme Court judges to be extended without creating a conflict with established legal principles, and argued that it is still possible to make such a correction.

The NMSJ also pointed to approaches adopted in other countries to deal with similar situations. It said Canada allows provincial judges to sit on the Supreme Court for special cases, while England has used recently retired judges as an additional panel in certain cases. It also noted that countries including Austria, Germany, South Korea, South Africa, Indonesia, Thailand and Türkiye have separate constitutional courts to examine the constitutionality of legislation.

Sri Lanka, however, has neither a separate constitutional court nor a panel of retired judges that could be appointed to hear such cases, the organization said.The NMSJ said lawmakers should therefore find a solution within the existing constitutional framework to ensure that the Supreme Court is not placed in a position where it has to consider a matter directly affecting the tenure of its own judges.It further said that if the Supreme Court determines, following a review of the proposed amendment, that a referendum is required, the final decision would rest with the people, thereby avoiding a conflict involving judges deciding on their own tenure.

The organization stressed that justice must not only be fair but must also be seen to be fair, warning that extending the terms of sitting judges without a direct decision by the people through a referendum could lead to questions about the perceived impartiality of the Judiciary. It said such circumstances could increase pressure on the Judiciary to demonstrate its independence and impartiality and potentially weaken public confidence in the Court.

The NMSJ noted that the public has maintained confidence in the Supreme Court despite the crises and challenges faced by the country, while the Judiciary, civil society organizations and professional bodies have previously made significant efforts to protect the Court’s independence.The organization called on lawmakers to exercise the sovereignty of the people in a manner that protects the independence of the Supreme Court and avoids placing the Court in a position where it could be required to hear its own case.

It also proposed constructive discussions with the Bar Association of Sri Lanka to find a mutually acceptable solution to the issue, saying resolving the divisions that have emerged over the proposed amendment would help the country move forward.The NMSJ said it considered it a national responsibility, as a civil society organization committed to protecting democracy, to bring these concerns to the attention of the Government and the public.