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Opinion

Anti-Terrorism Bill: Magistrates to the frontlines

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In comparison to the provisions in the Anti-Terrorism Bill to confer on Magistrates the discretionary power to place terrorist suspects in custody, the provision for judicial review in the amendment to the PTA passed last year appears to be a much more practicable alternative because it is the Supreme Court and the Appeal Court that has been accorded the power to review detention orders. Judges of the higher judiciary live in the Capital, in much more secure environments than the local Magistrates and it is easier to provide extra security to members of the higher judiciary and to insulate them from any threats coming from terrorists.

by C. A. Chandraprema

The government has gazetted an Anti-Terrorism Bill to repeal and replace the Prevention of Terrorism Act (PTA) of 1979, and it is to be presented to Parliament in the coming several weeks.  This is an altered version of the 2018 Counter Terrorism Bill of the yahapalana government. The government should give serious thought to the implications of some of the changes proposed in this Bill. During the most important operational period of the existing Prevention of Terrorism Act, issuing detention orders on terrorist suspects was the preserve of the Executive branch. It was only in 2022 that judicial review of detention orders issued under the PTA was allowed. However, under the provisions of the proposed Anti-terrorism Bill, the judiciary becomes an integral part of the counter-terrorism mechanism in the country.

Under Section 28 of the Bill, a suspect under arrest has to be produced before the nearest Magistrate within 48 hours. If by that time, a Detention Order has been issued, the Magistrate is obliged to make an order to give effect to that Detention Order. (Detention orders are issued by a Deputy Inspector General of Police and may initially be issued for a period not exceeding three months.) If a Detention Order has not been issued, the Magistrate has the discretion to decide whether the suspect is to be remanded or granted bail. If a detention order is to be extended beyond three months, the Magistrate is once again given the discretion to decide either way. If he decides not to extend the detention order, he will have to consider whether there are grounds to continue to hold the suspect in remand. If he decides there are no such grounds, the suspect can be released on bail.

By vesting Magistrates with such powers over terrorism suspects, the Anti-Terrorism Bill seeks to place the local Magistrates right at the forefront of the fight against terrorism. ‘Judicial supervision’ sounds nice, but is it feasible?  We have experienced outbreaks of terrorism in the form of the attempts at seizing state power in 1971 and 1987-89, the protracted campaign of separatist terrorism in the North and East between 1970-2009, and in the run-up to the 2019 Easter Sunday bombings by a Kattankudy-based terrorist group.

We have to consider the situation that would inevitably have arisen at that time if the local Magistrates had been vested with the exclusive power to remand/detain or release terrorist suspects. Terrorists have no interest in an independent judiciary. Their only aim is to force everyone to toe their line. We have all heard of the way the Kattankudy terrorists summoned even the powerful politicians of the area and imposed various conditions on them. In such circumstances, one cannot prevent Magistrates who hold complete authority over remanding/detaining or granting bail to terrorist suspects from becoming prime targets of the terrorists.

In 1987-89, the JVP killed the Grama Niladharis at every opportunity that presented itself on the accusation that the latter were representatives of the government. One can well imagine the situation that would have arisen at the time if it had been the local Magistrate who was vested with the sole discretion to either remand/detain or release the JVP suspects. Nobody seems to have given much thought to such practical issues. Members of the executive branch such as military and police units barricade themselves behind walls of sandbags and checkpoints when they operate in terrorist-infested areas. But the Magistrates cannot do that. They have to hear cases in open court and to go about in the community attending to various duties.

Vulnerable civilian officials such as Magistrates are hardly in a position to play a frontline role in combating terrorism. Someone may argue that Magistrates routinely remand even murder suspects, drug dealers and other dangerous criminals, therefore adding terrorists to the list will not be a problem. However, dangerous criminals are more often than not, presented before a magistrate for non-bailable offences and the Magistrate has little discretion, if any, in deciding whether to remand/detain the suspect, and criminals know this. In such circumstances, remanding a suspect does not turn the Magistrate into a target.

If, however, the Magistrates are vested with exclusive discretionary power to decide on either remanding/detaining or granting bail to all criminal suspects brought before them, then the criminals too will begin to zero in on the local Magistrates. Like the Magistrates, the police also live in the community they serve, but unlike the Magistrate, all policemen are armed, and work with armed colleagues.

They live in barracks or secured compounds and given the spirit de corps within the service, an attack on one member will bring down on the criminals the wrath of the entire service, and therefore the police are not a soft target for organized criminal gangs or terrorists to take on. Under the 1979 PTA, the power to detain terrorism suspects was vested in members of the Executive who carried arms and could resist force. One has to seriously consider how practical it would be to vest that power in an exposed, vulnerable civilian judicial official.

In comparison to the provisions in the Anti-Terrorism Bill to confer on Magistrates the discretionary power to place terrorist suspects in custody, the provision for judicial review in the amendment to the PTA passed last year appears to be a much more practicable alternative because it is the Supreme Court and the Appeal Court that has been accorded the power to review detention orders. Judges of the higher judiciary live in the Capital, in much more secure environments than the local Magistrates and it is easier to provide extra security to members of the higher judiciary and to insulate them from any threats coming from terrorists.

Fast-tracked release for terrorism suspects

Under Section 71 of the anti-Terrorism Bill, the Attorney General may suspend and defer the institution of criminal proceedings against a suspect for a period not exceeding twenty years if death or grievous hurt has not been caused to any person; or the security of the State and the people of Sri Lanka has not been seriously compromised or affected by the conduct of that suspect. In return, the suspect is expected to fulfill one or more of a set of conditions including the expression of remorse for his deeds, provision of reparations to victims, participation in a rehabilitation programme, public undertaking not to commit crimes in the future, engaging in community service, etc. Under Section 77, at any time before the judgment is given by the High Court, if the charges in the indictment do not relate to causing death or grievous bodily injury to any person; or endangering the security of the State and the people of Sri Lanka; or causing serious harm to property, the Attorney General may, withdraw the indictment against the accused on the basis of the same conditions mentioned above.

These provisions give rise to two questions. Firstly, if death or grievous hurt has not been caused to any person, and the security of the State and the people of Sri Lanka has not been seriously compromised or affected, and property has not been damaged, why should a given suspect be indicted before the High Court, at all? Secondly, even to file charges against a suspect, there has to be sufficient evidence to show that the person concerned has caused death or grievous hurt to some person or that he has endangered the security of the state or caused damage to property.

The difficulties encountered in gathering enough evidence to secure a conviction under the normal law of the land with regard to terrorism related offences is well known. Very often there are no witnesses, or laboratory evidence that can link a suspect to a particular terrorist attack is not available. Even if weapons and explosives are found on the suspect, charges can be filed only for the possession of the same and very often investigators are left with a lot of unproven allegations.

The reason why even the most dangerous LTTE terrorists held under the PTA were released from time to time was because in many cases sufficient evidence could not be found to secure a conviction or even to file charges. Thus, in most cases, terrorism suspects will become eligible for release without prosecution under Sections 71 and 77 of the Anti-Terrorism Bill. Under the provisions of the proposed new legislation, terrorism suspects can be detained only for one year. After filing charges, the period given to conclude cases against a terrorism suspect is also one year. If the case is not concluded within this period, the suspect has to be granted bail except in exceptional circumstances where the High Court can order that he be kept in remand for a further period not exceeding three months at a time.

In circumstances, where there is an ongoing terrorist issue in the country, provisions such as these will become a serious problem. Today, we are able to release even the most dangerous LTTE cadres because the LTTE was eliminated many years ago and these terrorists no longer have a terrorist movement to return to. But had the LTTE still been active in Sri Lanka, releasing even long-term PTA detainees would not have been feasible.

When it comes to terrorists, only the very naïve will believe any talk of expressing remorse and undertaking to refrain from committing offences in the future. Dissimulation is the very stock in trade of the terrorist. Given what we have experienced over the past several decades, the last thing that anybody in this country should be doing is to give out the signal that terrorists will be given special privileges not available to ordinary criminals. However, that is exactly what the proposed Anti-Terrorism Bill does by creating special pathways to enable terrorism suspects to obtain early release without prosecution.



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Opinion

When crime speaks louder than politics

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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.

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Opinion

SC Determination on 22A:A Law and Policy Critique

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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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Opinion

Think globally and act locally

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By Prof. Amarasiri de Silva

The current period can be characterised by Sri Lanka reaching a historical crossroad which determines whether the island nation will continue following the logic of an inward-oriented mind or adapt to the realities of the globally connected world. Throughout the millennia, Sri Lankan psychology has been conditioned by the island nature of its geography. The ocean around the nation has served as a protective factor and as a boundary at the same time. In the language of Sinhala people, the phenomenon is known as lin medi manasikathwaya and implies narrowing of horizons, restriction of ambitions, and the need to focus on oneself. This mentality is not characteristic of the culture only; it also affects economic thinking, political behaviour, education, and social relations. In the epoch of global trends, the nation must abandon this approach and start thinking in a bigger way.

Inwardness is characteristic of many islands. However, Sri Lanka’s situation is quite unique as the island has had centuries of contacts with other countries. For millennia, travellers, monks, scientists, merchants, and others travelled from Sri Lanka to India, China, Southeast Asia, the Middle East, and Europe. Our ports were centres of economic activity and exchange; our ancient kingdoms absorbed knowledge, technologies, and culture from foreign countries. Therefore, the island was never isolated but functioned as a meeting place of civilisations. However, for some reason, in modern times, Sri Lanka started developing an inward orientation despite having centuries of experience. There are several reasons for the phenomenon: legacies of colonial past, post-independence nationalism, rhetoric of political parties, economic dependencies, and cycles. At some point, the ocean ceased serving as a bridge.

Inward in several areas

This inwardness can be observed in several areas. It takes various forms: a conviction that Sri Lanka is too small to succeed in the global competition, fears of external influences, a tendency to compare ourselves only to nearby countries, and a failure to adopt global approaches. In politics, the island’s inwardness can be revealed in rhetoric which dismisses global trends as unimportant or even threatening. In economics, the mentality can manifest itself in focusing on internal issues instead of considering global opportunities. In education, students study mainly about the history of their own country instead of global trends. In cultural matters, openness can be confused with dilution. To move forward, Sri Lanka needs to realize that global thinking is not a luxury but a necessity.

It is quite easy to notice the effect of inwardness on the economic life of Sri Lanka. For decades, the country was characterised by limited export diversification, dependence on remittances, vulnerability to external shocks, and financial constraints. All these problems do not only affect the economy but are caused by the mentality. In general, Sri Lankan entrepreneurs have a small market mentality: they design products for domestic markets, set standards based on domestic criteria, and never consider globalisation. To change the situation, the country must adopt a global economic imagination which would encourage the development of export-oriented entrepreneurship, integration into global value chains, partnership with global companies, and promotion of globally competitive industries (information technology, tourism, agriculture, renewable energy).

Abandoning island mentality

Small countries all over the world managed to transform their economy by abandoning the logic of island mentality. Singapore, Estonia, and Vietnam are examples of such transformation: they have made investments in education, technology, and global cooperation; they have encouraged their citizens to be a part of the global labour market. Sri Lanka can do the same but only if it starts thinking differently. One of the most underused resources of the transformation can be the country’s diaspora. Millions of Sri Lankans living outside the island can be helpful: they have global knowledge, networks, and capital. Instead of being seen as sources of remittances, the diaspora can be a strategic partner in the process of national development. Global imagination requires Sri Lankans to see themselves not only as inhabitants of the island but also as participants of global processes of innovation and research. To harness the potential, there should be special policies to encourage investment of diaspora into the nation, facilitate knowledge transfer, and develop the trust between the diaspora and the state.

Inwardness is a problem in politics as well. The political imagination has a great impact on the fate of the nation: when politicians think narrowly, the country follows the example; when they think globally, the country starts expanding its horizons. In general, Sri Lankan politics is characterised by a narrow focus on local problems: political leaders speak about village-level concerns and try to satisfy voters’ demands in the shortest time possible. Of course, local problems matter but they cannot be the only focus of national politics. Climate change, geopolitics, technological disruptions, and migrations have a significant influence on Sri Lanka. Therefore, to have a global political imagination, it is necessary to understand global systems, predict risks, position the country within global power dynamics, develop diplomatic skills, and learn from models of global governance which emphasise transparency and accountability.

Diplomacy as a powerful tool

Diplomacy is one of the most powerful tools at the disposal of small countries. Sri Lanka’s geographical position is one of the biggest blessings of the country as the island located at the intersection of major sea routes has huge geopolitical value. Global thinking requires the nation to utilize its potential through proper diplomacy instead of isolation or fear. Through diplomacy, Sri Lanka should attract investments, create alliances, enhance its security, increase exports, and promote cultural contacts. Countries which master diplomacy (like Qatar, Norway, and Singapore) can achieve much more in the world of politics than they actually should. However, this can be achieved only by the politicians who have global awareness, understand different economic models, technology trends, and best practices in the global context. Parliamentary debates should be conducted considering global statistics, not only local stories; policy proposals must be compared to global models. It makes a difference.

Education is the key

Education is the key factor which determines the nation’s imagination. If our education system is inward-looking, society will be the same. The curriculum of Sri Lanka must change: global history, global economics, global citizenship, foreign languages, and digital literacy should be included. Students must be prepared for global career, not only for working in Sri Lanka. Sri Lankan universities must become global centres of research and innovations; this can be achieved through international universities, international faculties, international research projects, global accreditations, and encouragement of studying abroad and returning with new ideas. Furthermore, education must foster critical thinking. Inwardness is often connected with refusal from questioning, debates, and creativity.

Culture is also one of the areas where global thinking is needed. Culture does not stay the same; it develops through contacts, exchange, and adaptation. The rich culture of Sri Lanka (Buddhist heritage, Hindu traditions, Islamic influences, colonial legacy) shows that openness is a feature of our civilization. Global thinking requires cultural self-confidence: it means that Sri Lankans have confidence in traditions, arts, and values which allow the country to stand confidently in front of the world. Global thinking allows Sri Lankans to engage with global cultures without fear of losing something. Creative industries of Sri Lanka (film, music, literature, fashion) have huge global potential; to achieve it, it is necessary to cooperate globally, to promote the arts of Sri Lanka internationally, to support creative entrepreneurs, to use digital media for communicating with global audience. Tourism is also cultural diplomacy: every tourist is an ambassador of Sri Lanka. Global thinking requires improvement of tourism infrastructure, sustainable tourism, and promotion of the island’s cultural diversity.

Importance of technology

Technology is the tool of global transformation. Sri Lanka should embrace digital innovations in order to remain competitive in the global economy. A globally-connected nation requires high-speed internet access, digital payments systems, e-government, cyber security, and regulations friendly to technology. Innovation ecosystem requires startups, research labs, technology incubators, networks of venture capitals, and partnerships between universities and business. Artificial intelligence, automation, and robotics will revolutionize industries, employment, and governance. Therefore, Sri Lanka should invest in education in AI, data science, automation-ready industries, and frameworks of ethical AI.

Society must develop towards a global imagination as well. A globally connected society is inclusive, tolerant, and forward-thinking. Inwardness encourages division on ethnic, religious, regional lines. Global imagination encourages unity as it shows that diversity is strength. Sri Lankans should perceive mobility (travelling, migrating, working in other countries) as opportunities for development. In addition, global imagination requires recognising that learning about the world helps to improve the nation. Media plays an important role in forming imagination. Sri Lankan media should cover global news, provide international perspective, conduct critical analysis, and avoid isolation and sensationalism.

Overcoming inwardness

Overcoming of inwardness will take a lot of time and effort; nevertheless, there are steps to take. Leaders should act according to global imagination. Organisations should adopt global standards and practices. Citizens should acquire global awareness through studying global news, learning foreign languages, traveling whenever possible, interacting with global ideas and embracing diversity. The nation requires a national vision in which Sri Lanka is seen as a globally connected, innovative, and resilient nation. The vision should be conveyed consistently, clearly, and confidently.

The future of Sri Lanka depends on imagination of the nation. If the nation is going to be confined to its island mentality, it will continue struggling with economic stagnation, political fragmentation, and social division. However, in case Sri Lanka decides to open and start thinking in a global way boldly, strategically, and confidently, the country will be able to unlock its tremendous potential. Global thinking does not destroy the identity of Sri Lankans but makes it stronger. It allows the nation to interact with the world on its own terms. It turns the small size of the nation into an advantage. Geographical location is a strategic asset. It makes citizens globally-competitive and gives them ability to contribute to the nation as well. The sea around the country should be used as a bridge, not as a boundary. The world is close to us. The future of the nation depends on imagination; let us think globally, act wisely, and imagine boldly.

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