BASL raises gratification concern over judges’ tenure extension

The Bar Association of Sri Lanka (BASL) has raised the question of whether the proposed extension of the tenure and related benefits of sitting superior court judges under the 22nd Amendment to the Constitution could amount to a “gratification” within the meaning of the Anti-Corruption Act.

The concern was raised in a Special Determination petition filed before the Supreme Court by BASL President Rajeev Amarasuriya and Secretary Nalin De Silva challenging the constitutionality of the proposed amendment.

The petitioners said a serious question arises as to whether the extension of tenure and attendant benefits proposed for sitting judges could constitute a “gratification” under the Anti-Corruption Act No. 9 of 2023, as amended.

The BASL said the issue assumes significance because the same judges may be required, in their judicial capacity, to determine the constitutionality of the Bill that seeks to extend their tenure.

However, the petitioners stressed that they were not alleging wrongdoing or casting aspersions on the judges. They said the provisions of the Anti-Corruption Act were cited to draw the Supreme Court’s attention to the risk of public perception arising from the circumstances.

The petitioners also acknowledged that it could be argued that legislative and judicial acts are immune from the application of the relevant provisions of law.

The BASL referred specifically to Section 93(b) of the Anti-Corruption Act, which covers Supreme Court and Court of Appeal judges, among others.

The provision states that a Supreme Court or Court of Appeal judge, judicial officer or other person exercising judicial or quasi-judicial powers who solicits or accepts any gratification as an inducement or reward for doing or refraining from doing an act in their judicial capacity commits an offence of bribery.

According to the provision cited in the petition, a person convicted of such an offence may face a fine of up to Rs.1 million and rigorous imprisonment for up to seven years.

The BASL has also raised a potential conflict-of-interest issue, arguing that sitting Supreme Court judges determining the constitutionality of the Bill could themselves benefit from the proposed extension of tenure.

The petitioners are seeking a declaration that the proposed 22nd Amendment requires approval by the people at a referendum, arguing that the Bill affects the independence of the Judiciary and the sovereignty of the people.

The BASL has also requested the Chief Justice to constitute a Full Bench comprising all sitting Supreme Court judges to hear the matter, citing what it described as grave, exceptional and urgent constitutional issues arising from the Bill and an alleged conflict of interest.

The Bill, published in the Gazette on 7 August and placed on Parliament’s Order Paper on 18 August, proposes to increase the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65.

It also proposes a separate provision for the Chief Justice, who would retire upon reaching 67 or completing six years from appointment as Chief Justice, whichever occurs first.

The proposed amendment would also increase the maximum number of other Court of Appeal judges from 19 to 24, allowing five additional judges to be appointed.

According to the petition, extending the tenure of sitting judges could create both actual and perceived risks to judicial independence because those judges would receive another two years in office together with the associated salary, privileges and benefits.

The BASL further argues that the arrangement could affect public confidence in the Judiciary, as subsequent judicial decisions involving the Government could be viewed against the perception that sitting judges had benefited from a tenure extension granted through the constitutional amendment.