Opinion
Colombo crow and Mark Twain’s sparkling notes on the Indian crow
By Lokubanda Tillakaratne
On January 13, 1896, Mark Twain, the American novelist and humorist sailed to Colombo aboard the steamer SS Oceana on the way to Bombay, now known as Mumbai. He had a one-day layover and stayed in the Bristol Hotel near the harbor. The following day he left for Bombay.
Upon arriving in Sri Lanka, he wrote in his diary, “Dear me, it is beautiful! … and conveys whole libraries of sentiments, and Oriental charm and mystery and tropic deliciousness…” During his short stay in Colombo, the novelist also took a rikshaw ride to Galle Face. There, strolling on the green were plump-faced ladies in Victorian vogue, and probably English-speaking crows having leisure time.
The scene must have tricked the American into thinking he landed in the English Bard’s City of Kites and Crows (London) or its Victoria Park. But he found “what a dream it was of tropical splendours of bloom and blossom, and Oriental conflagrations of costume …always the arrangement compelled the homage of the eye and made the heart sing for gladness.” That was our Colombo then.
He no doubt saw and heard hullabaloos of crows in Colombo, later came to be known in the vernacular as Kolomba Kaakko. When he got to Bombay, however, he found out that his hotel balcony had already been booked by a gang of Indian crows for a conference of sorts. I reproduce in verbatim later in this essay his expressive observations of this gathering which he wrote in his travelogue, Following the Equator in 1897.
When researchers on avian affairs spent millions to learn how crows live, Mark Twain did it without spending a cent one afternoon sitting on a hotel balcony. He called the crow Bird of Birds and a work of art. But before we go to his notes about them, let me introduce what we see in our own Colombo crows.
They are perhaps the most ubiquitous, repulsive and noisiest of animals. Musical instruments cannot emulate their cawing, because a group cawing is always in disharmony.
There are village crows, and there are city crows. Village crows are mostly those stop-over types for refueling and restocking while flying towards Colombo and other big cities looking for five-course buffets. Among the big cities too, only those in Colombo were good enough to get the moniker Kolomba Kaakko. They hate it because they feel, rightly so, that they are universal, not just limited to a stingy city.
But crows are part of our life and history closer than you think. Crow’s Feet under the manicured eye socket remind us that we can see Hamara Banawara (last rites) on the horizon. Long ago, Kolomba Kaakko was an influential voting block. They were able to carve out a seaside section of Colombo and name it after them – Crow Island, their own little Galle Face green.
To many, crows are a despised sight. King Nissanka Malla in Polonnaruwa wrote on stone that a crow should not be compared to a swan. Among the cheery birds in an aviary, crows are flat prose. They are full of ill-humor – the way they walk, dull colour, always tiptoeing like a band of burglars with the intent of grabbing something and getting away.
When they are around, we cannot help but think of them as pickpockets. They have no moral scale. But they are least worried about the negativity ascribed to them. A crow always looks young, for he is a master in how to keep floodmarks of age camouflaged.
The crows possess an abundance of paraphernalia to take over a situation. When two of them get close, they just want to talk – mostly ridicule or feel sorry for people at the bus halt, calculus of the last night’s gazette notification or laugh out about a recent Social Media clip. One dead crow can assemble an army of comrades in minutes when the news spreads across the city. Then they gather around the dead body and wail, which sounds like an orchestra playing without a conductor. Then they fly out for other business in the city.
Oppressively Sociable (Mark Twain, 1897).
We wake up with the crows; rather, they ring up our wake-up call. They keep us company in many ways than all the birds around us combined. They are historic creatures. Caricatures of them are found on the walls of burial chambers of the Great Pyramid. Yet no stonecutter in ancient Sri Lanka thought it proper to carve a crow on a Moonstone. A crow atop a pyramid is a photographer’s dream.
If someone belittles a crow, he teaches us magnanimity. He just hops out to another perch or flies away. There are times when they are collectively considerate. During Perahera nights in Kandy, leaving the lake bund all to people, Kandy crows move out voluntarily to nearby Udawattekale forest so they can use toilet facilities in private.
When the city concludes the lunch hour, the Kolomba Kaakko, too, finish business. They assemble on tree tops on the banks of the Diyavanna Oya to parley and listen to fuming oratory streaming out from the bowels of the big house built on its island. Every so often they applaud the candor or excoriate the venom of these orators. Then begin to ponder the heavy yoke of the big house people are under. s
If Mark Twain took the rickshaw ride to Diyavanna Oya, and heard the big house debates, he would repeat words on crows here without a syllable missing – “(an orator) never thinks about anything but heaves out the opinion that is on top in his mind, and which is so often an opinion about some quite different thing and does not fit the case. But that is his way; his main idea is to get out an opinion, and if he stopped to think, he would lose chances.”
Occasionally crows can be gullible too. The most epic example is how one poor crow lost his piece of cake when a hungry jackal pulled off the heist just by wheedling over and over and over. Well, if we are to believe Mark Twain, and for no reason not to, that wheedling instance must have been an anomaly. Like students in a university, crows think they know everything or conduct themselves like that.
Mark Twain had mixed feelings about crows. This is what he wrote about them after observing their gathering on that Mumbai hotel balcony.
“What a state of things! For three hours the yelling and shouting of natives in the hall continued, along with the velvety patter of their swift bare feet – what a racket it was! They were yelling orders and messages down three flights. Why, in the matter of noise it amounted to a riot, an insurrection, a revolution.
And then there were other noises mixed up with these and at intervals tremendously accenting them – roofs falling in, I judged, windows smashing, persons being murdered, crows squawking, and deriding and cursing, canaries screeching, monkey jabbering, macaws blaspheming, and every now and then fiendish bursts of laughter and explosions of dynamite.
By midnight I had suffered all the different kinds of shocks there are and knew that I could never more be disturbed by them, either isolated or in combination. Then came peace – stillness deep and solemn – and lasted till five.
“Then it all broke loose again. And who re-started it? The Bird of Birds – the Indian Crow. I came to know him well, by and by, and be infatuated with him. I suppose he is the hardest lot that wears feathers. Yes, and the cheerfullest, and the best satisfied with himself. He never arrived at what he is by any careless process, or any sudden one; he is a work of art, and “art is long”; he is the proudest of immemorial ages and of deep calculation; one can’t make a bird like that in a day.
He has been reincarnated more times than God …; and he has kept a sample of each incarnation and fused it into his constitution. In some course of his evolutionary promotions, his sublime march toward ultimate perfection, he has been a gambler, a low comedian, a dissolute priest, a fussy woman, a blackguard, a scoffer, a liar, a thief, a spy, an informer, a trading politician, a swindler, a professional hypocrite, a patriot for cash, a reformer, a lecturer, a lawyer, a conspirator, a rebel, a royalist, a democrat, a practitioner and propagator of irreverence, a meddler, an intruder, a busybody, an infidel, and a wallower in sin for the mere love of it. The strange result, the incredible result, of this patient accumulation of all damnable traits is, that he does not know what dare is, he does not know what sorrow is, he does not know what remorse is, his life is one long thundering ecstasy of happiness, and he will go to his death untroubled, knowing that he will soon turn up again as an author or something, and he even more intolerably capable and comfortable than ever he was before.
“In his straddling wide forward step, and his springy side-wise series of hops, and his impudent air, and his cunning way of canting head to one side upon occasion, he reminds one of the American blackbirds. But the sharp resemblances stop there. He is much bigger than the blackbird; and he lacks the blackbird’s trim and slender and beautiful build and shapely beak; and of course, his sober garb of gray and rusty black is a poor and humble thing compared with the splendid luster of the blackbird’s metallic sables and shifting and flashing bronze glories.
The blackbird is a perfect gentleman, in deportment and attire, and is not noisy, I believe, except when holding religious services and political conventions in a tree; but this Indian sham Quaker is just rowdy, and is always noisy when awake – always chaffing, scolding, scoffing, laughing, ripping, and cursing, and carrying on about something or other. I never saw such a bird delivering opinions. Nothing escapes him; he notices everything that happens, and brings out his opinion about it, particularly if it is a matter that is none of his business.
And it is never a mild opinion, but always violent – violent and profane – the presence of ladies does not affect him. His opinions are not the outcome of reflection, for he never thinks about anything, but heaves out the opinion that is on top in his mind, and which is so often an opinion about some quite different thing and does not fit the case. But that is his way; his main idea is to get out an opinion, and if he stopped to think, he would lose chances.
“I suppose he has no enemies among men. The whites and Mohammadans never seemed to molest him; and the Hindoos, because of their religion, never take the life of any creature, but spare even the snakes and tigers and fleas and rats. If I sat at one end of the balcony, the crows would gather on the railing at the other end and talk about me; and edge closer, little by little, till I could almost reach them; and they would sit there, in the most unabashed way and talk about my clothes, and my hair, and my complexion, and probable character and vocation and politics, and how I came to be in India, and what I had been doing, and how many days I had got for it, and how I had happened to go unhanged so long, and when would it probably come off, and might there be more of my sort where I came from, and when would they be hanged, – and so on, and so on, until I could no longer endure the embarrassment of it; then I would shoo them away, and they would circle around in the air a little while, laughing and deriding and mocking, and presently settle on the rail and do it all over again.
“They were very sociable when there was anything to eat – oppressively so. With a little encouragement, they would come in and light on the table and help me eat my breakfast; and once when I was in the other room and they found themselves alone, they carried off everything they could lift; and they were particular to choose things which they could make no use after they got them. In India their number is beyond estimate, and their noise is in proportion. I suppose they cost the country more than the government does; yet that is not a light matter. Still, they pay; their company pays; it would sadden the land to take their cheerful voice out of it.”
In conclusion, with apologies, I rephrase here Justice Robert Jackson’s opening statement at the Nurenberg trials in 1945. That Mark Twain, flushed afresh with South Asian hospitality and stung with ridicule and insult by a rowdy band of birds at a Mumbai hotel balcony stay the hand of getting even to enthusiastically write a glowing description of these rascals is one of the most eloquent yet witty tributes that a literary luminary ever has paid to a flock of feathery ones – a kaleidoscope of oddities and absurdities – a gathering of noisy Indian crows, no less.
Lokubanda Tillakaratne’s most recent book is Rata Sabhawa of Nuwarakalaviya: Judicature in a Princely Province – An Ethnographical and Historical Reading.
Opinion
Meritocracy or seniority number for pilot promotions in commercial airlines?
by Capt. (Ret) G.A.Fernando
‘Meritocracy’ is held to be an essential part of good governance in any organisation. The other two essential components are ‘pragmatism’ and ‘honesty as in Singapore’. Unfortunately, meritocracy is also subjective. Reportedly, in the early days of Air Ceylon, the first officer (co-pilot) would sometimes help to pack the operations manager’s bags before an impending trip, in order to gain ‘merit’ in the airline. Alternatively, the first officer considered for command may have been a ‘boozing buddy’ of the captain. In short, there was no system.
In Air Lanka all our managers, instructors and chief pilots were expatriates. Fairly or unfairly, a rumour had it that pilot promotions were decided at the whites-only Colombo Swimming Club. There were many instances when promotions were offered to someone of so-called ‘good standing’, or ‘a friend of the family’, in the eyes of airline management. Thus, some junior pilots were unfairly by-passed for no valid reason. Such was life in those days.
Consequently, in the mid-1980s the Pilots’ Guild declared that ‘enough was enough’, and after a quick survey of other airline practices, using data supplied by the International Federation of Air Line Pilots’ Associations (IFALPA), it was demanded of Air Lanka management that they too should establish a seniority list to ensure that no-one will be overlooked when it came to pilot promotions.
Essentially, a pilot would be given a ‘seniority number’ at the time of joining the airline. If the date of joining was the same for a batch of pilots, then the number of hours of experience at the time of joining in decreasing order would be the factor in determining individual pilots’ seniority within that batch. The lower the seniority number the greater the seniority of the pilot. That, and only that, would be the consideration. In other words, it was a pecking order of sorts. In case a pilot was bypassed due to some valid requirement, that pilot would be entitled to a good and acceptable reason, and then to a bypass allowance.
While accepting it on principle, no one in the Flight Operations department was willing to ‘bell the cat’ or buck the system.
Therefore, it fell upon the Pilots’ Guild, and specifically me as its secretary, to establish a draft copy of a seniority list, which was eventually accepted by the management of Air Lanka, for pilot promotions.
The pilot was to carry that number until his career with the airline ended. It also gave an opportunity for management to pick candidates out of sequence (for good reason), as the seniority will eventually be re-established. However, if the pilot left the airline for greener pastures and returned, he/she would have to join at the bottom of the list (as the most junior pilot).
Opinion
When crime speaks louder than politics
Narcotics, firearms, capital flight and a daylight massacre, and the duty of the security state
By Mahil Dole
Senior Superintendent of Police (Retired) | Former Head of Counter-Terrorism, State Intelligence Service
The past fortnight has not been a collection of isolated crime stories. It has been a pattern: a large maritime narcotics seizure in the North, inland heroin and ICE hauls in the West and South, a cache of military-pattern firearms on the outskirts of Colombo, a multi-billion-rupee foreign-exchange fraud through shell companies, and, worst of all, a daylight shooting in Halpethota, Baddegama. Gunmen in a car intercepted a three-wheeler and fired at point-blank range, leaving a man and a woman dead. Another woman succumbed to her injuries.
These are not good signs for a peace-loving people. Criminals operating in tandem, brandishing firearms, and treating a public road as an execution ground advertise an insecure environment. When that coincides with Easter Sunday judgments and a presidential claim that politics has been turned from a business into public service, the temptation in Colombo is to treat security as background noise. That would be a serious error.
What the record of two weeks actually shows
On 27 September, personnel of the Northern Naval Command and SLNS Agbo intercepted a consignment at Kusumanthurai Beach, Madagal, Jaffna. One suspect was arrested and a small boat recovered. Examination with the Police Narcotics Bureau established approximately 45.5 kilograms of ICE and 35.7 kilograms of heroin, nearly 81 kilograms, with a street value exceeding Rs. 1.5 billion. It was described as the Navy’s largest ICE-and-heroin haul from northern waters.
That same morning, in Halpathota, Baddegama, the victims were said to have been returning after signing at the Galle Crimes Division. Motive can wait. The method cannot: pursuit, interception and execution in daylight, with a military-pattern weapon, in a populated southern town.
In the days immediately preceding these events, officers of the Western Province North Crime Division arrested suspects in Bokundara, Piliyandala, with more than 11 kilograms of heroin and more than 6 kilograms of ICE, valued in the region of Rs. 300 million. In Walgama, Matara, a man and a woman were arrested with nearly 22 kilograms of ICE, together with cash and vehicles suspected of being used in trafficking. In Kolonnawa, raids recovered a 9mm pistol, seven firearms capable of firing T-56 ammunition, and more than 600 rounds of 9mm ammunition. The Financial Crimes Investigation Division produced before court a suspect alleged to have aided remittances equivalent to some Rs. 24.8 billion through shell companies, against imports that never arrived. He has been remanded until 1 October. The file sits inside a wider inquiry into scores of companies and tens of thousands of telegraphic transfers.
Taken separately, each arrest is a success. Taken together they describe a market: drugs arriving by sea, broken and distributed inland, protected by firearms, and accompanied by money moving through corporate vehicles that look lawful until they are examined.
Non-traditional threats in a crowded political climate
National security in Sri Lanka is still too often imagined as the business of preventing another Easter Sunday or another armed insurgency. Those remain real responsibilities. The Colombo High Court Trial-at-Bar has just convicted 15 of 24 accused in the principal Easter Sunday case and imposed sentences running to two centuries of rigorous imprisonment. That judgment matters for victims, for the record, and for deterrence. It does not, by itself, close the file on intelligence failure, institutional negligence, or the wider architecture that allowed a conspiracy to mature. Into that same week has come another publication, and it requires a different kind of honesty.
A book titled Navayay Paha Vikurthiya– (9:5 Distortion), has been launched after Qur’an 9:5. There is a particular hypocrisy in that naming while refusing to read 9:1 to 9:7. The verse is not a licence. It is a wartime clause after a broken treaty, a four-month warning, and an order to honour pacts that were kept. The next line requires safe-conduct for an enemy who only wants to hear the Word of God. To lift “kill the polytheists” and sell it as the meaning of Islam is not scholarship. It is the method Surah Al-Imran 3:7 condemns: those in whose hearts is deviation chase isolated lines to create fitnah, while those firm in knowledge take the Book as a whole.
The vested interest is not hard to see. The same launch that branded a Qur’anic verse as “distortion” was used to seek another presidential pardon and the cover of the Maha Sangha. A cleric already convicted for insulting Islam now packages that faith as a public threat, then asks the State for mercy so that he may continue the same politics. That is not national security. It is the old trade: isolate a line, inflame a crowd, and convert communal fear into personal and political capital. Sri Lanka has paid for that trade before, in broken streets, in a community placed under blanket suspicion after Easter, and in an intelligence culture that watched identity instead of behaviour. Say so plainly, without matching abuse with abuse, and without letting a slogan stand in for the text.
Narcotics, underworld firearms, capital flight dressed as trade, and contract-style public shootings are not “ordinary crime” in a country that still lives with organised violence. They feed corruption and create the cash and firepower on which larger threats later ride. A state that treats them as a blotter problem, while its political class argues in Colombo, has misread its own risk register.
From politics as business to public service, a test, not a slogan
At a mass rally in Gampaha this Sunday, under the theme “People’s Rule – Two Years Strong. Progress for All,” the President said that politics which had become a business has been transformed into public service. The sentence is well aimed. For decades office was inventory: licences, contracts, land, appointments and silence. That marketplace ran into Customs sheds, bank counters, landing points and the underworld’s procurement of weapons. If politics is now public service, the claim must be tested in the court and on the road.
The courts, in recent weeks, have not been idle. Political figures, public servants and entrepreneurs have been produced on corruption charges: a sitting parliamentarian on an alleged aircraft-procurement bribery file; a former Krrish Group director over an alleged Rs. 70 million payment tied to a Fort property; the former chairman of Lanka Mineral Sands; the General Manager of Lanka Salt; a former National Transport Commission chairman over Expressway permits; a former minister’s secretary over an alleged Rs. 8.1 million bribe. Earlier this year CIABOC reported more than thirty public officials arrested in four months. These files are the visible edge of an effort to make “politics as business” expensive.
That effort is a condition of national security, not a side-issue to be parked with the bribery commission. A dinghy does not beach at Kusumanthurai without facilitators. A T-56 does not appear in Kolonnawa or Baddegama without a supply chain that has passed through a compromised official or a bank that asked too few questions. Phantom imports on the FCID’s scale are the financial twin of the narcotics trade. Clean politics starves those networks. Dirty politics feeds them. But a remand is not yet public service, and a rally sentence is not yet a secure street. If directors are in court while a three-wheeler is raked in Halpethota, and if ICE still moves by the kilo through northern waters, the citizen is entitled to ask which marketplace has actually been closed.
There is a further caution. Campaigns against corruption succeed only when they are even-handed and evidence-led. Selective zeal recreates the old business of politics under a new label. An intelligence service used to settle scores will not be trusted when it later asks the public about a landing or a weapons dump. The Gampaha formulation is useful if it becomes an operational standard: the law applies to the powerful and the obscure alike, and the State’s first business is the ordinary person on an ordinary road.
Agency responsibilities: who must do what.
Figure: The citizen on an ordinary road is the test. The Navy, Police and Narcotics Bureau, intelligence desks, FCID and banks, Customs and the FIU, CIABOC, the courts and the National Security Council are not rival press offices. They are one picture — or they are three press releases.
The Navy’s duty on the northern and southern approaches is not ceremonial. The Palk Strait remains a preferred corridor: the crossing is short and fishing provides cover. Interdiction at Kusumanthurai is valuable only if it is followed by source-to-market mapping, packers, landing points, inland receivers, offshore facilitators. That work requires the Police Narcotics Bureau, Customs, the Financial Intelligence Unit, and a fusion cell that treats a dinghy, a bank transfer and a T-56 as one picture.
The Police duty is to prevent the next daylight murder, not merely to investigate the last. When a T-56 is used on a public road against people returning from a crimes division, the question is how the weapon moved, who sanctioned the hit, and why threat assessment failed. Inland ICE and heroin finds must be treated as distribution nodes, not trophies. A 22-kilogram haul in Matara and an 18-kilogram mixed find in Piliyandala, days apart from an 81-kilogram coastal seizure, should be one picture, not three press releases.
The FCID and the banks have a national-security function whether or not the statute uses that phrase. Phantom imports drain reserves, can wash criminal proceeds, and can pay for the consignments the Navy pulls off beaches. The Kotikawatte arrest should open a network case, not close a headline.
Intelligence agencies must resist waiting for a “terrorism” label before they sit up. Organised narcotics, contract killing and covert capital movement are intelligence problems. They require sources, financial intelligence, maritime awareness and the courage to share what is known before the next three-wheeler is stopped on a southern road.
Preventive measures that can be taken now
Prevention is a set of unglamorous tasks. First, a standing joint cell, Navy, Police Narcotics Bureau, Customs, FCID and the Financial Intelligence Unit, with one target list and one weekly assessment to the National Security Council. Measure networks dismantled, not only kilograms.
Second, treat firearms recovery as a campaign. The Kolonnawa cache is a logistics dump. Every recovery should be traced: origin, last custodian, end-user, cash trail. Unaccounted military-pattern weapons remain an unfinished post-conflict item.
Third, close the gap between court appearance and street vulnerability. People required to sign at a crimes division are known to the system. The system then owes a threat assessment. Public roads in Baddegama should not become killing grounds because two factions have a rifle.
Fourth, match telegraphic transfers against Customs and shipping data as routine, not as a special project after a complaint reaches Police Headquarters. The Rs. 24.8 billion file should rewrite that routine.
Fifth, political controversy must be ring-fenced from operational command, and the anti-corruption drive must speak to the anti-narcotics drive. A National Security Council on a fixed cycle, with a fused assessment and written tasking, keeps the permanent State at work while the temporary Government argues its constitutional case. CIABOC, the FCID, the Police Narcotics Bureau and Customs should not discover at a press conference that they have been chasing the same names.
The test that matters
Sri Lanka has spent a generation learning, at terrible cost, that security is not the same thing as the absence of a declared war. The peace-loving public does not ask the State to win arguments in Colombo, or to win applause at a Gampaha rally. It asks that a three-wheeler on a southern road can pass a car without being raked by a T-56; that a northern beach is watched before the dinghy beaches, not after; that a house in Kolonnawa is not a magazine; that billions of rupees cannot leave the country dressed as imports that never were; and that the man who once sold a licence and the man who now fires a rifle are both answerable to the same law.
The detections of the past two weeks prove that parts of the system still work. The Baddegama murders prove that other parts do not work in time. The court list proves that another part has at last been put to work. National security is the closing of that gap, by agencies that know their duty, by a centre that refuses to be distracted, and by a standard that treats public service as the protection of the ordinary citizen from the old business of politics and the new business of crime.
(This analysis is offered in the interest of national security, institutional reform, and public safety)
The writer is a Senior Superintendent of Police (Retired), former Head of the Counter-Terrorism Division of the State Intelligence Service, and a former Member of the Sri Lanka Wakfs Board. He writes on national security, intelligence and institutional reform. Email- mahildole54@gmail.com
Sources:
contemporaneous reports of the Sri Lanka Navy, Police spokesmen, CIABOC and court proceedings, News First, Newswire, Ada Derana, Daily Mirror and related parliamentary reporting, 21–27 September 2026; Qur’an 9:1–7 and 3:7; book launch of Navayay Paha Vikurthiya, 20 September 2026.
Opinion
SC Determination on 22A:A Law and Policy Critique
by Prof.G. L. Peiris
D. Phil. (Oxford), Ph. D. (Sri Lanka);
Former Minister of Justice, Constitutional Affairs and National Integration;
Quondam Visiting Fellow of the Universities of Oxford, Cambridge and London;
Former Vice-Chancellor and Emeritus Professor of Law of the University of Colombo.
There is widespread interest in the 22nd Amendment to the Constitution of Sri Lanka in this country as well as abroad. This is especially so, after the widely disseminated comments by Ms. Margaret Satterthwaite, the Special Rapporteur of the United Nations on the independence of the judiciary. The analysis contained in this article is being developed for publication in scholarly legal journals in the Commonwealth. The current version was written to cater to local interest.
I. Full Court
This was taken up as a threshold issue.
Given the importance of the matter, the majority of petitioners strenuously contended for the constitution of a Full Court consisting of all thirteen judges of the Supreme Court.
There is ample precedent for this in our country. In 1983, to adjudicate on an aspect of the Sixth Amendment, Neville Samarakoon CJ constituted a Bench which included the full strength of the Supreme Court, then consisting of nine judges. The same course of action was adopted by Sharvananda CJ in 1987 with regard to a challenge to the constitutionality of the Thirteenth Amendment and the Provincial Council Bills.
There are other situations in which Benches of seven judges have been constituted. Examples are provided by the orders by Nalin Perera CJ in 2018 in the premature dissolution of Parliament case and by Jayantha Jayasuriya CJ in the Easter Sunday bombing fundamental rights application in 2023.
The five judge Bench in the 22A case had no hesitation in rejecting the request for a Full Court.
This conclusion was founded on the premise that the hearing of the petitions “cannot be assigned a procedure outside the Constitution”. The governing provision is that “The Chief Justice may, if the question involved is in the opinion of the Chief Justice one of general or public importance, direct that such appeal, proceeding or matter be heard by a Bench comprising five or more judges of the Supreme Court”.
The substantial ground of rejection of the request for a Full Bench was that the Chief Justice had already exercised his discretion in appointing five judges, and that any variation of this would necessarily involve “an abdication by the Chief Justice of the constitutional role vested in him and usurpation of the discretion of the Chief Justice by the other judges of the Court”.
It was declared that, in the absence of provision conferring a right of appeal, revision or review, the application was misconceived. This, however, overlooks the reality that what was sought was not intervention by other judges to override an order of the Chief Justice, but a subsequent order by the Chief Justice himself to expand the composition of the Bench in light of cogent submissions by counsel representing the petitioners about the objective need for this initiative. This was not a situation in which, as a matter of strict procedure, the Chief Justice, having made an order, was finally and irrevocably functus and devoid of authority to take any further action in the matter at his own discretion. The invocation of a totally rigid constitutional fetter is fanciful and unrealistic, and defeats the ends of justice.
It was observed: “The Court cannot without any reasonable basis or justification give prominence to some selected cases and postpone other cases”. Nevertheless, the reasonable justification could readily be inferred from the circumstances, since the request by the petitioners was by no means self-centered or idiosyncratic but derived from the far-reaching implications of the matter at hand, evident even at a glance.
The Chief Justice nominated five judges to the adjudicating panel. Stephen Tiru, President of the Commonwealth Lawyers Association, who was an observer of the proceedings, as well as LawAsia, commented explicitly on the apparent absence of any explicable criterion governing the selection. Seniority on the Bench was clearly not the yardstick, since the judges selected occupied, from this perspective, slot numbers 6, 8, 11 and 13 out of a total complement of 13 judges of the Supreme Court.
Indisputably, the discretion is solely that of the Chief Justice. But, as my former teacher, Professor Sir William Wade of the University of Cambridge, never tired of pointing out, discretionary powers in the public domain, however amply conferred, must always be exercised so as to inspire public confidence. He insisted that nothing is more inimical to the values of public law than the concept of unfettered discretion. Indeed, the entire body of common law represents as strong a disincentive as possible against arbitrariness and caprice.
II. Consultation
The Court gave short shrift to the petitioners’ argument relating to the failure by the government to conduct a consultative process.
The singular absence of consultation was quite manifest. The Minister of Justice, in reply to explicit questions by the Opposition on the floor of Parliament, stated that no change relating to the retirement age of judges had been decided upon. Even two weeks before the Amendment was gazetted, the Secretary to the Ministry of Justice declared that she was unaware of any proposed change. The Bar Association, despite persevering efforts, was able to obtain an interview with the President only after a final decision by the Cabinet and subsequent to publication of the Bill in the Gazette. The Maha Sangha, the Catholic Bishops’ Conference, the Church of Ceylon, the Bar Association of Sri Lanka, 43 trade unions as well as a large number of academics and civil society organizations protested vehemently, but to no avail.
The Court, as the ground of dismissal, made the surprising statement that “the Parties failed to show any legal provision which has made it incumbent upon the government to ‘conduct a consultative process with the relevant stakeholders’ before it decides to gazette the Bill and place it in the Order Paper of Parliament”.
In 2022, when the United Kingdom embarked upon a comprehensive review of the retirement age of judges, and the government published proposals for public scrutiny and debate, there were no fewer than 1,200 responses from stakeholders during the span of over a year. And yet, there was no coercive statutory provision of any kind which made this consultative process compulsory. On the contrary, it was the cumulative thrust of comity, recognition of the value of consensus and the continuity of democratic tradition which impelled the deciding authority to regard the range and depth of public consultation as indispensable. Not even the most unrepentant Positivist would deny its necessity in the absence of statutory imperatives.
In any event, internationally acknowledged practice is unequivocal. The Venice Commission and Report on Constitutional Amendment has this to say: “Constitutional amendments should only be made after extensive, open and free public discussions involving the various political forces, non-governmental organizations, citizens’ associations, academia and the media, and with an adequate time frame for meaningful debate”.
In the specific context of judicial reforms, the Venice Commission has recently reaffirmed that “It is essential to continue to have proper public consultations before a Parliamentary vote”. Nothing could be more explicit.
III. Bias
One of the principal contentions on behalf of the petitioners was that, since the impugned measure has the effect of conferring on the decision makers an extension of judicial tenure, with accompanying advantages in terms of salary and all other perquisites of office, the public perception of probable lack of objectivity or bias would contravene the tenets of natural justice.
The Court adopted the approach that the disqualifying interest must necessarily take the form of “a direct pecuniary or personal interest in the specific outcome as between the litigants”. This limitation on the scope of bias as “a direct personal and case-specific interest”, excluding an “institutional stake”, is an unwarranted gloss on the law, clearly inconsistent with judicial authority of the highest standing.
In re Pinochet (No. 2), speaking in the House of Lords, Lord Browne-Wilkinson, commenting on the scope of the rule against bias, accepted its applicability in two distinct contexts: “first, where the judge has a financial or proprietary interest; and secondly where, although he has no such interest, his conduct or relationship may give rise to a suspicion that he is not impartial”.
In the 22A proceedings, the Court unhesitatingly opted for a subjective interpretation of the notion of bias, asking the question whether the decision-maker believed that he was receiving a benefit arising from a “legislative bribe”. This is reflected in the emphatic assertion: “We hold that there cannot be any such conflict in the mind of the judge”. It is respectfully submitted that this is the wrong question to ask. The issue is not whether the judge, in his own mind, considered himself the recipient of an advantage, but rather whether “a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased” (Porter v Magill).
The operative criterion, then, is apparent or potential bias which extends beyond direct interest to the underlying purpose of sustaining public confidence in judicial impartiality.
An identifiable flaw in the Court’s reasoning derives from placing increase of salaries of judges and retrospective enhancement of the age of retirement of judges on the same level. The Court categorically asserted: “We have to apply one yardstick to both”. However, while salaries must obviously be increased over a period of thirty or so years during which a judge may hold office, the same considerations hardly apply to extension of duration of tenure, departing from constitutional postulates which determined the period of office at the time of commencement of the appointment.
This is vividly illustrated by the attitude of Chief Justice Geoffrey Ma, who held office in Hong Kong when, in 2019, the age of retirement of judges of the Supreme Court was extended from 60 to 65 years. Chief Justice Ma, in expressing the reasons for his decision, which continues to resonate as an inspiring precedent, said that although in terms of the law enacted midstream during his judicial tenure, he was entitled to serve for an additional five years, he would refrain from doing so and relinquish office at the previously designated age of retirement. He was doing so to give effect to his own settled expectation, and that of all others, that he would retire at the age which applied at the time he took office. He considered that this course of action was conducive to the health of the judicial system which he wished to transmit, in its full integrity, to his successors.
Another observation by the Sri Lankan Court gives rise to consternation. This relates to the Court’s attitude to a seminal statute, the Judicature Act,No.2 of 1978, which sets out, inter alia, the procedure to be followed in the event of a judge having an interest in the subject matter of a case before him. Their Lordships commented: “We regret to note a gradual increase in the number of vexatious petitions being filed in Courts. We think the time has come for Courts to give a purposive interpretation to section 49 of the Judicature Act rather than trying to blindly follow the said provision”.
The suggestion that a court may properly, at its own discretion, apply or disregard a binding provision of statute law is likely to occasion more than passing misgivings.
IV. Role of the Constitutional Council
The effect of Article 41C, read with Article 107(1) of the Constitution, is that concurrence by the Constitutional Council is a condition precedent for appointment of Superior Court judges by the President.
One of the objections to 22A was that the Constitutional Council had approved the appointment of these judges only up to the time indicated in Article 107(5) of the Constitution and that any extension of tenure beyond this period would be without the concurrence of the Constitutional Council, and therefore in violation of a mandatory constitutional requirement.
This contention was disposed of by the Court on two grounds. First, the Court declared: “The incumbent judges of the Superior Courts whose age of retirement would be increased if the Bill is passed into law, are judges whose appointments have been approved by the Constitutional Council after due process”. This overlooks the consideration that the approval was time-bound and cannot plausibly be construed as open-ended, covering any period which a subsequent legislature might choose to prescribe.
The second reason was stated as follows: “We have already adverted to the fact that they have been serving in the Judiciary well before the present government came to power”. It is difficult to understand the rationale spelt out in these terms. Whatever government was in power, the issue is whether approval granted by the Constitutional Council in respect of a particular appointment envisages only the period during which the appointment was thought to be operative at the time concurrence was given, or whether approval is infinitely elastic in terms of time frame. There is obviously no particular sanctity attaching to judicial appointments made prior to, or after, a specific point in time.
V. Selectivity and “Court Capture”
By way of refutation of this basic criticism of the constitutional innovation, the Court placed heavy reliance on the generality of application of the proposed reforms. Their Lordships declared: “It is important that we bear in mind two important distinctions that were referred to by the learned Solicitor-General, that being the extension is non-discriminatory in that it applies to all judges, and it is non-discretionary, in that the extension is not at the whim and fancy of the Executive”.
Empirical reality militates against the validity of this contention.
During the first half of this year, 2026, three judges of the Supreme Court retired. If the proposed extension of tenure had been effected at the beginning of the year, these judges would have been entitled to its benefit and would have continued in office for an additional two years.
In May 2026, just three months before the 22nd Amendment was presented to Parliament, the President of the Court of Appeal, after a distinguished career spanning 30 years, retired from service. He did so at a time when no fewer than four vacancies existed on the Bench of the Supreme Court. The President of the Bar Association, in his address at the ceremonial sitting to mark the retirement of the judge, publicly expressed regret that the country had been deprived of his service at the apex court, despite repeated interventions by the Bar to prevent this injustice. On 3 September 2026, just days before the vote in Parliament took place on 22A, another judge of the Court of Appeal retired, not having been promoted to fill one of the vacancies in the Supreme Court.
These circumstances, objectively viewed, detract substantially from the merit of the argument premised on the absence of discretion and discrimination.
VI. An Appeal to Patriotic Sentiment
In the face of attempts to convey to the Court, with a sense of urgency, the ill omens in other jurisdictions, Their Lordships were inclined to push back energetically by denigrating these apprehensions and regarding the circumstances of our country as special. The Court was strident in its assertion: “We can only reiterate that the judiciary of this country consists of men of courage and men of wisdom who have always and who will always maintain the independence of the judiciary under varying circumstances”. It was claimed: “This is clearly established by the fact that nobody, not even the Bar Association of Sri Lanka, has ever complained, nor has there been any allegation or an iota of suspicion that the judges of this country surrendered their much cherished independence”. The bedrock of this approach was an appeal to patriotism: “Disparaging our country to advance an argument at the expense of our national reputation is unfortunate and regrettable”.
Sadly, the state of the world we live in is far less sanguine. History is replete with examples which bear testimony to the truth that descent into autocracy does not generally happen by one fell swoop but takes place incrementally over time, for the most part by steps which are typically modest and even imperceptible. To persuade ourselves that we are insulated against the common experience of humankind and are, alone, invulnerable is fraught with the gravest danger. The dynamics of history do not admit of anomalous exceptions. This is why “the gritty resolve of this Court to uphold constitutional obligations” may not, by itself, provide entirely satisfying reassurance.
VII. Conclusion
The longevity of amendments to the Constitution of Sri Lanka during the last five decades has not been impressive. The future will decide the wisdom and viability of the 22nd Amendment.
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