Features

Proposed Anti-Terrorism Bill: Real tiger, paper tiger or mixed bag

Published

3 years ago

2023/04/23

By Nuwan Peiris

The writer is an Attorney, Chartered Shipbroker (UK) and UN-ITLOS Nippon Fellow 2012/2013. He holds M.Sc. Logistics (BCU-UK), LL.M (International Maritime Law) (IMO-IMLI), LL. M (International Trade Law) (Wales), LL.B (O.U.S.L).

“No generalization is wholly true – not even this one.” – Justice Oliver Wendell Holmes

The recent Anti-Terrorism Bill (ATA) has garnered more attention than one could ever imagine for a law. Emotional and sweeping generalizations are made by all and sundry on the proposed ATA. Even the recently enacted 21st Amendment did not receive so much attention from the public. Why is it that a law like the proposed ATA receives so much attention? There seems to be a legitimate fear that the proposed ATA may be no different to the existing law, namely PTA (Prevention of Terrorism Act), if not worse.

But what is the reality? Who drafted this proposed ATA? From the skilled draftsmanship associated with the proposed ATA, the draft law requires an in-depth analysis for a proper understanding unlike some of the recently introduced laws by the government.

Weaker than UK Law – Why?

In essence, the proposed ATA seems to be a strategically diluted version of the UK’s Anti-Terrorism Act 2000 – incorporating the amendments that were introduced by the UK after the London bombing. Worse still, proposed ATA is inconsequential in its effect when it comes to combating global terrorism as far as some of the fundamental provisions are concerned; in other words, a feeble draft law compared to the Patriot Act of the USA which became law after the 9/11 attacks. However, the proposed ATA may be an abusive weapon as far its enforcement orders are concerned, such as the Miscellaneous Orders contained in Part X. In short, the proposed ATA is a mixed bag. For example, most of the protestors’ dissent to the proposed law gyrates on these abusive enforcement orders.

How does a draft law like this instant one finds its way, from nowhere, to the official gazette without much public discussion? The purpose of this very brief write-up is to urge the Government in power and the opposition parties to prevent the proposed ATA being tabled in the Parliament, instead to appoint a Select Committee in the Parliament comprising of varied interests so that the matter can be reconsidered and better reforms of the ATA can be effected with consensus.

And the important point to consider by this proposed Select Committee in the Parliament is to introduce an ATA to tackle global terrorism effectively, and promulgate a law that is in line with the Anti-Terrorism Act 2000 of the UK (as amended), and better still the Patriot Act of USA – and be mindful not to introduce a version that is weaker than the UK law. Hence, the President, the Prime Minister, and the Justice Minister should be advised to set-up a Select Committee in the Parliament, so that the proposed ATA can be changed to become an acceptable legal instrument in combating global terrorism, and avoid becoming a law which is far weaker than the UK law on terrorism.

If the proposed ATA becomes law, this law may not have the same effectiveness in combating global terrorism especially given the weak substantive provisions in clauses 2 and 3, coupled with arbitrary procedural provisions that may lead to abuse in implementation. Such a proposed ATA will serve neither the purpose of combating global terrorism nor ensuring procedural fairness to the ones who are caught up as suspects. A middle of nowhere legislation, although drafted well disguised, may not serve Sri Lanka well, noting that further legislation similar to Bio-Security Act 2015 from Australia is needed to combat biological and chemical attacks. What is needed is to have extensive deliberations in a fresh Parliamentary Select Committee, where all of us can share and contribute with our experience to the formulation of a far-sighted ATA.

Why is ATA weaker than UK and USA laws?

There are two fundamental provisions in the proposed ATA – clauses 2 and 3. Clause 2 deals with jurisdiction and clause 3 deals with the offence of terrorism.This is the typical structure of an ATA law in many countries, and drafts men followed the universal structure – and we see nothing wrong in this. Here, Clause 2 becomes the international jurisdiction base for the implementation of the proposed ATA.

Clause 3 contains the offence of terrorism that becomes the basis on which other offences and provisions are built upon. Clause 3 is the mother provision, and the rest of the offences are the offspring of Clause 3 – which is typical of any ATA in the world including the UK.

Clause 2 – the clause on jurisdiction – becomes the basis for enforcement powers mentioned in the Part X of proposed ATA. Whilst the enforcement powers in the Miscellaneous Part – that comprises of Proscription Orders, Prohibition Orders, Restriction Orders etc., which is less judicially accountable – are wide and arbitrary when applied within Sri Lanka; on the contrary, its overall reach and enforcement of such Orders in the context of global terrorism is ‘fragile’ given the limitations in Clause 2.

Both Clauses 2 and 3 are the foundational structure of the proposed ATA, and the enforcement provisions contained in the rest of the ATA, including Part X forms the superstructure. Let us examine each of these aspects.

Clause 2 – Jurisdiction

There is extra-territorial application of the proposed ATA. This is a salient feature, and this is far better drafted than the ill-fated, and now demised, Counter-Terrorism Bill that was presented in 2018.

An extract of Clause 2 is as follows;

“2. (1) The provisions of this Act shall apply to any person who commits an offence under this Act, whether within or outside the territorial limits of Sri Lanka, including- …”

First limb of Clause 2(1) ends with the word ‘including’ – but given the subsequent sub-clauses it is unclear whether such sub-clauses are in fact have limiting effects on the wide scope of the first operative limb – namely, “[the] provisions of this Act shall apply to any person who commits an offence under this Act, whether within or outside the territorial limits of Sri Lanka.” It is preferable that the word, ‘including’ is replaced by the words ‘including, but not limited to -’.

Overall, it is unclear whether Sri Lanka has jurisdiction over a purely international crime of terrorism committed in violation of clause 3 of the proposed ATA. Say, if an African terrorist group (which is not proscribed as per clause 82 of the ATA) launches a pirate attack on a foreign flagged vessel in the Indian high seas, and one of the members of said terror group ends up on the shores of Sri Lanka, it is unclear whether such terrorist can be investigated and prosecuted in Sri Lanka. The entire commission of the act is in the high seas, and the said terror group is unknown to Sri Lanka, yet ends up in Sri Lanka. In this example, the ambit of the applicability of clause 2 remains questionable to exercise jurisdiction by Sri Lanka.

Or else, if assistance is sought from our State, and the government dispatches a naval convoy to help the distressed vessel, and having offered assistance in the high seas, and the crew and the vessel is brought to Sri Lanka for medical treatment, can the Sri Lankan authority initiate investigations on this matter that occurred exclusively in the High seas? The legal regime of the high seas is contained in Part VII of the United Nations Convention on the Law of the Sea 1982, and the high seas are beyond the jurisdiction of any national jurisdiction of any State. Although, clause 2(c) seems to be broad enough to cover such foreign citizens by the use of words ‘any person’, clause 2(d) seems to limit the applicability of clause 2(c). Whether this is specifically brought to the attention of the government and MPs are uncertain. Also noteworthy is the uncertainty pervading the inclusive nature of clause 2(1) by the use of the words ‘including’ at the early stages, as noted by me earlier. All this, compounds the uncertainty to the jurisdictional ambit of the applicability of the proposed ATA. Therefore, there is a need to revisit the jurisdictional ambit of clause 2.

Similarly, there are many drawbacks in clause 2, and the application of the said jurisdictional clause must be considered in the light of the public international law and its bases on international jurisdiction, and how much of such international State rights that should be contained in a proposed ATA in line with similar legislation like Patriot Act of the USA or Anti-Terrorism Act 2000 of the UK. Curtailing such international rights that legitimately belong to Sri Lanka without a rational policy basis is not acceptable. Hence the proposed ATA should be reconsidered for the want of workable jurisdiction. The writer is fully aware of the criticisms on the counter terrorism laws of the UK and USA. Whether Sri Lanka wishes to retract from UK’s/USA’s positions need to be objectively decided by the policy makers with wider consultation.

Another example of a defect in clause 2 is that sub-clause (d) says, that a person who had been a citizen of Sri Lanka commits the offence of terrorism within the territory of the Republic of Sri Lanka, say today, but found out later; and he subsequently shifts his habitual residence from Sri Lanka; for the provisions of the proposed ATA to be applied the concurrence of the foreign State of which he is a citizen is required. The problem continues further. Also, what if that foreign citizen later visits Sri Lanka, or he is intercepted by a Sri Lankan naval operation in the high seas and brought to the shores of Sri Lanka; does Sri Lanka have the jurisdiction to prosecute this person – although such foreign citizen now does not have any habitual residence in Sri Lanka? It is questionable whether clause 2 covers such a situation. That means, clause 2(c) seems to be broad enough to cover such foreign citizens by the use of the words ‘any person’, but clause 2(d) seems to limit the applicability of clause 2(c).

There are so many defects in clause 2. But the scope and the space of this write-up does not allow me to expand. There is provision for extra-territorial jurisdiction in the UK’s Terrorism Act 2000 for terrorist financing and terrorist bombing offences in line with the UN Convention for the Suppression of Terrorist bombings and the UN Convention for the Suppression of the Financing of Terrorism. The appeal to the government is to reconsider the proposed ATA.

Clause 3 – The Offence of Terrorism

The offence of terrorism under clause 3 forms the basis for a number of criminal offenses; and triggers the application of many provisions including the encouragement of terrorism, and wide-ranging powers, like the designation and proscription of terrorist organizations; and other enforcement powers and orders.

Similarly, the Terrorism Act 2000 of the UK, includes acts of terrorism committed both in and outside of the UK, as the use or threat of one or more of the actions listed in the section, and under the Act, terrorism is currently defined as “the use or threat [of action] designed to “influence” the government or to intimidate the public or a section of the public, and the use or threat is made for the purposes of advancing a political, religious or ideological cause. (Vide, Section 1(1) of the Terrorism Act 2000 of the UK.)

Lord Carlile’s report on “The Definition of Terrorism,” March 2007, reviewed the scope of the definition of the Anti terrorism Act of the UK and stated that the UK definition is “consistent with international comparators and treaties, and is useful and broadly fit for purpose”. In his report, Lord Carlile recommended amending the language so that only actions or the threat of action designed “to intimidate” the government, instead of the much broader word “influence”, fall within the definition.

The present the section 1(1) of the UK reads as follows;

In this Act “terrorism” means the use or threat of action where—

(a)the action falls within subsection (2),

(b)the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c)the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

The words such as “influence” can be considered much wider than the word “wrongfully” that is mentioned in clause 3(1) of our proposed ATA.

Further, the UK Act in section 4(1) contains broad definitions. For e.g. the reference to any person or to property is a reference to any person, or to property, wherever situated, and a reference to the public includes a reference to the public of any country, and “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. However such effective and broad definitions do not exist in our proposed ATA.

Further, Section 38B(1) and (2) of the Terrorism Act 2000 of the UK says that it is an offence if one does not inform the police if he believes that someone he knows is in preparation of acts of terrorism. The maximum sentence in respect of Section 38B of the Act is for a term not exceeding five years’ imprisonment, although it is a defence to prove that he had a reasonable excuse for not making the disclosure.

It is also observed that the intention is expressly required as the mental element of the crime in clause 3, whereas the word ‘knowledge’ would be preferable given the complexity involved in the crime. However, section 1 of the UK Anti-terrorism Act seems to require no overburden of such intention or knowledge to the extent of proposed ATA.

The frequently cited leading case on strict liability and the presumption of ‘mens rea’ is Sweet v Parsley [1970] AC 132. But the recent case supreme court judgment of PWR (AP) (Appellant) v Director of Public Prosecutions (Respondent) [2022] UKSC 2 held that such presumption is rebutted for the offence contained in section 13. All this shows how broadly the UK s Anti-Terrorism Act is applied, which is a clear lesson for us.

It is in this context that our proposed ATA should be reviewed as to its narrowness in combating global terrorism, and abusive in enforcing miscellaneous orders on the contrary.

The General Fears about Proposed ATA

There is an overwhelming agitation that the proposed ATA will turn out to be draconian law – just as bad as the existing PTA, if not worse. Fears have been galvanised to such an extent that many opposition parties and activists have decided to challenge the proposed ATA in the Supreme Court.

A common question they ask is whether any trade union activists or media activists that protest in public or air their voice against the government be dealt with under the proposed ATA. Such possibilities are rare given the highly structured nature of the mother clause 3 and her associated offspring provisions. The threshold tests that are needed to graduate an act to one of terrorism that gets caught in clause 3 or its associated provisions is placed at a high level, and it is very unlikely that mere protests would classify as an act of terrorism. Many, if not all the offences are directly connected to clause 3, as noted above. It is very unlikely that a final conviction from a court of law will victimize a group of mere protesters or a group of media activists engaged in criticising the government. If such be the case, the UK’s Anti-Terrorism Act 2000 would have led to far greater concerns, since, as I indicated above, the proposed ATA law in Sri Lanka is much narrower than that of the UK’s 2000 Act.

However, it needs to be observed that enforcement/miscellaneous powers that are widely couched in Part X can nevertheless be abused in the short term, and innocent people may be apprehended as suspects. Therefore a group of protesters or media activists can be harassed in the short run given the weaknesses in the enforcement procedures. Hence, it is the enforcement powers and procedures that need a revamp for the want of a greater judicial scrutiny.

One more point on Part X – miscellaneous powers in the proposed ATA. Take a look at the Anti-Terrorism Act 2000 of the UK. There is far greater judicial accountability in the UK regime, for eg., detailed de-proscription procedures in the UK law compared to the proposed ATA etc. global terror networks are complex and dangerous.

Take this example. Assume that a terror group takes an LNG carrier and her crew as hostage in the outer harbour of Colombo Port, where the sabotaging of this carrier would cause enormous destruction similar to the explosion of a nuclear bomb. The hostage situation goes on for 10 days in outer harbor. Fortunately, in the early hours of the hostage crisis Sri Lanka arrests a suspect in the Port connected to the hostage crisis. It is not advisable to bring in a human rights oversight body to question the well being of the suspect taken to custody in the first few days, since the hostage crisis is ongoing and the counter-terrorism operations are still going on. And the arrested suspect may be needed for hostage negotiation and other counter-terrorism measures. It is best advised that the proposed ATA is revisited given the serious lacuna it has with regard to the weaknesses even on the procedural provisions in addressing organized global terror networks.

The writer is aware of the statements so far issued by the International Commission of Jurists (ICJ) and Center for Policy Alternatives (CPA). It is noted that all these observations are primarily, if not exclusively, centred on the required procedural due process in the enforcement powers, rather than on the restrictive nature of clauses such as 2 and 3. The concerns such as lack of a proper definition of terrorism, ‘glorification’ being made an offence after the London bombing, and other substantive due process concerns etc., nevertheless exist in the UK/USA Laws, and there is no necessity for Sri Lanka to deviate from these advanced foreign legal regimes without broader expert consultation, and if a deviation from the UK/USA laws are warranted such policy must be carefully considered.

Finally – A call for a fresh Parliamentary Select Committee, a call to calm down for the public and a plea for the government to delay the proposed law:

The overabundance of criticisms from the trade unions, professional bodies, religious bodies and the NGOs need to be tempered with wiser counsel in the interest of the country. The government should also be mindful to restrain itself from introducing sweeping powers for procedural enforcement which have less judicial scrutiny. This write-up once again reiterates its clarion call to halt this legislation being pushed so hurriedly through the legislative deliberation process. We call upon all the professional/religious bodies, trade unions, NGOs and the political parties to request the powers that be to have a Parliamentary Select Committee so that an objectively drafted ATA can be finalised to one which the government and the citizens in this country want and can agree.

(The writer is an Attorney, Chartered Shipbroker (UK) and UN-ITLOS Nippon Fellow 2012/2013. He holds M.Sc. Logistics (BCU-UK), LL.M (International Maritime Law) (IMO-IMLI), LL. M (International Trade Law) (Wales), LL.B (O.U.S.L).

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Features

Civilizational dialogue proving a remote possibility as realpolitik rages

Published

22 hours ago

2026/09/3

Sahan Weerasooriya

Political leaders at the Shanghai Cooperation Organization Summit 2026. (Photo by PROKOFYEV / POOL / AFP)

Looking back over the years since the 9/11 catastrophe, it could be said that barring former Iranian President Mohammad Khatami no world political leader of note has made an earnest effort to change the nature of global political discourse for the better. Khatami won world acclaim for his pronouncement that the time is right to launch and sustain a ‘Dialogue among Civilizations’.

This was in marked contrast to US political scientist Samuel P. Huntingdon’s epochal theses, formulated in the wake of 9/11 and other global political tumults that the Post Cold War era is essentially one of conflicts among civilizations. That is, people’s identity markers, such as culture and religion, are the prime shaping forces of international conflicts.

From a Political Realism standpoint, Huntingdon’s theory may seem to have gained in credibility over the years but it is Khatami’s pronouncement that has evoked an empathetic response in the hearts and minds of publics world wide. So much so, 2001 was proclaimed by the UN General Assembly as the ‘Year of Dialogue among Civilizations’.

It could be said that the latter proclamation was an endeavour to give back to humans their essential identity of peace-makers. It was an eschewing of the position that war and conflict are central to the human condition and amounted to upholding constructive dialogue among peoples and civilizations as a path to peace.

That things have not worked out in the world in keeping with the expectations of peace makers does not in any way invalidate the thesis that peace is the essential propensity of humans.

If peace-making is seemingly ineffective it is primarily because the path to peace is narrow, tortuous and time-consuming. On the other hand, violence usually misleadingly recommends itself to the human as the more expedient, cost-effective way out of a conflictual situation. However, the ultimate cost of the latter approach is prohibitive because it brutalizes the human beyond recognition.

Some of the evidence is before our eyes. The Trump administration, for example, has, minus much forethought, unleashed what may be described as a ‘quick-fix’ war against Iran but is now finding that it is in a veritable military quagmire in West Asia. The priority for the administration now seems to be a face-saving escape strategy. Such are the costs of the war option.

However, there is no denying that much remains to be done by the world community to bring peoples and cultures together with a view to enabling them to work as one for the cause of a less dangerous world.

Meanwhile, the broad divisions in international politics continue and past political polarities are lingering to the detriment of enhanced international understanding. The East and the West and the South and the North, for instance, are continuing to work in separate collectives, more or less, and no notable efforts are being made by the international community to bring these sides together for the purpose of united constructive action that could usher greater international well being.

The recent Shanghai Cooperation Organization Summit, 2026, held in Kyrgyztan was a replication of the above broad trends but there were some statements at the forum by Indian Prime Minister Narendra Modi that deserve special scrutiny and comment.

Modi was quoted saying among other things: ‘The land of Gandhi and the land of Buddha share a single message: the path to peace!..We must move away from endless war towards an end to the war. This is essentially for the well being of humanity. A peaceful resolution to all issues at the earliest is the call of humanity, and this is India’s message.’

The above is the language of international peace and unity. It is such language that will help in building bridges among civilizations and advance the cause of world peace. Besides, it will help bring a measure of understanding between North and South.

In this regard, the Trump administration could take a leaf or more from the Modi government. Unless it makes a ‘U turn’, as it were, in the direction of peace and reconciliation it is very unlikely that the US and the world would experience any stability worth speaking of.

Right now the US is savaging the sovereignty of Venezuela. It is a question of the ‘Empire striking back’ but Venezuela is a far cry from Iran. Iran has outsmarted the US on the battle field and is in a position to influence broad trends in the world economy since it still has control over the Hormuz Straits. That is, Iran could exercise a determining influence over world oil, gas and energy prices. In short, the US consumer’s future peace of mind is very much in the hands of Iran.

Given the above backdrop it should have dawned on the US political leadership that working towards cordial relations with Iran is the most advisable option. The US, simply, has too much to lose otherwise.

Likewise, Russia too needs to take a leaf from India. It is plain to see that its invasion of Ukraine is proving totally ineffective. It has not brought any measure of peace for the Russian people. Russia is right now experiencing a rerun of its military misadventure in Afghanistan. On the other hand, sections of the peoples concerned have been victimized and even brutalized.

Accordingly, there needs to be a coming together of democratic opinion worldwide for a fresh consideration of the options facing humanity. There is a dire need for value-based politics to take the place of Realpolitik. Besides, the language of peace and humanity needs to replace current divisive discourse with its stress on polarities and antagonisms.

International organizations of the stature of the UN need to take the lead in spearheading the above initiatives. Right now the UN gives the impression of being a spent force. This columnist hopes that he would be proved wrong on this score because the UN remains the only hope of the poor and victimized. It will be in the interests of all peoples for the UN to rejuvenate itself and dedicate itself increasingly enthusiastically to the cause of international peace.

Whether it be the South or North, dynamic, visionary political leadership and direction emerges as essential. The need is for voices that would espouse peace and accord across boundaries and divisions. For South Asia, India and Pakistan have the potential to fill this lacuna.

Features

Sri Lanka’s constitutional test: Judicial independence beyond immediate political moment

Published

22 hours ago

2026/09/3

Sahan Weerasooriya

Superior Court Complex, Colombo

by Shelton Dharmaratne

Sri Lanka has reached an important constitutional moment.

The proposed 22nd Amendment has moved beyond political debate and into the constitutional process through which its validity will be examined. That development should change the character of the national discussion.

That is understandable in a politically contested environment. But Sri Lanka should now resist reducing a question of constitutional design to a contest over political positions.

The deeper issue concerns the relationship between constitutional reform, judicial independence and public confidence in the institutions of the State.

The Supreme Court will determine the constitutional questions before it. Public commentators should therefore exercise restraint in predicting, interpreting or seeking to influence that determination. But restraint does not require silence. It requires a more rigorous discussion of the institutional principles at stake.

A narrower constitutional question than the political debate suggests

The proposed amendment principally concerns the retirement ages of judges of the Supreme Court and Court of Appeal, together with an increase in the maximum number of judges permitted on the Court of Appeal.

Under the proposal, the retirement age of Supreme Court judges would rise from 65 to 67 and that of Court of Appeal judges from 63 to 65. The maximum number of Court of Appeal judges would also increase from 19 to 24.

Other proposed changes concerning the retirement ages of judges in the lower courts arise under separate legislation. This distinction matters because the public debate has sometimes treated the wider package of judicial reform as though it formed a single constitutional proposal.

Nor should the central issue be reduced to whether retaining experienced judges is inherently good or inherently dangerous. Both propositions are too simplistic.

Sri Lanka faces a substantial burden of pending litigation, and delays in the administration of justice impose significant costs on citizens, businesses and the State. Experienced judges represent an institutional resource. Continuity, accumulated knowledge and familiarity with complex areas of law cannot always be replaced immediately.

Those are legitimate policy considerations.

But the opposing concern is equally important: judicial tenure is not merely an employment condition. It is a structural component of judicial independence.

The real question is institutional

The critical question is not whether an individual judge is capable of acting impartially. It is whether the constitutional structure provides adequate protection against circumstances in which judicial tenure could become connected, directly or indirectly, with political authority.

That is an institutional question, not an accusation against individual judges.

A judge may be entirely conscientious and independent while the institutional arrangements surrounding the judiciary nevertheless create public doubts about independence. Constitutional democracies therefore cannot depend solely on the personal integrity of office-holders. They must construct institutions capable of preserving independence even when governments, individuals and political circumstances change.

This is particularly relevant when constitutional reform concerns the tenure of serving members of the superior judiciary.

The institutional sensitivity of such a proposal should neither be exaggerated into an allegation of improper motive nor dismissed as irrelevant. The appropriate response is transparency, procedural fairness and confidence in constitutional safeguards.

Legitimate objectives do not settle constitutional questions

The government has stated that its objectives include strengthening the administration of justice, addressing delays, retaining judicial experience and increasing institutional capacity.

Those objectives deserve serious consideration. Sri Lanka needs judicial reform. Citizens waiting years for their cases to be concluded experience the justice system very differently from those discussing it in Parliament, courtrooms or universities.

A government is therefore entitled to propose reforms designed to improve judicial efficiency.

But legitimate objectives do not automatically resolve constitutional objections. The relevant question is whether the means chosen are compatible with the constitutional structure and whether sufficient safeguards exist against unintended institutional consequences.

That is precisely why constitutional scrutiny matters.

The concerns of the Bar Association of Sri Lanka (BASL) should likewise be examined without political labelling. Opposition to the proposed changes should not automatically be characterised as opposition to judicial reform or an attempt to obstruct the government. At the same time, invoking judicial independence does not place any argument beyond scrutiny.

The appropriate questions are straightforward:

Does extending judicial tenure strengthen the administration of justice?

What risks, if any, could it create for judicial independence?

Are adequate institutional safeguards in place?

Does the proposal operate prospectively, or does it affect judges already serving?

Could the same objectives be achieved by filling vacancies, increasing judicial capacity, improving court administration and strengthening case management?

These questions can be examined rationally without attributing improper motives to either side.

Judicial vacancies and institutional confidence

Recent concerns raised by the BASL regarding judicial vacancies add another dimension to the debate. The BASL has argued that vacancies in the Supreme Court contributed to the retirement of a senior Court of Appeal judge without promotion to the Supreme Court, despite vacancies having existed. It has also raised concerns regarding forthcoming judicial retirements and the need for timely consideration of appointments.

Such matters should not be treated as evidence of the motives behind the proposed amendment. They do, however, illustrate a broader principle.

Judicial independence is shaped not only by the retirement age written into the Constitution. It is also influenced by how vacancies are filled, how promotions are determined, how seniority and merit are assessed, and whether judicial officers and the public believe that institutional decisions are made according to transparent and defensible criteria.

The government has an opportunity to address these concerns constructively.

Prompt appointments based on publicly defensible principles would strengthen confidence in the judiciary irrespective of the eventual outcome of the constitutional debate.

Seniority, merit and transparent criteria

The controversy also exposes a longstanding question concerning judicial appointments.

Seniority has traditionally carried considerable weight in judicial advancement. Yet seniority alone need not be the sole measure of merit. Conversely, replacing established practices with undefined assessments of “merit” could create another institutional problem.

If governments or appointing authorities can determine which judges are sufficiently meritorious without clear and objective criteria, uncertainty itself may become a source of institutional anxiety.

Sri Lanka would therefore benefit from clearer, objective and defensible standards governing judicial appointments and promotions.

Such standards would protect judges as well as appointing authorities. They would reduce opportunities for favouritism, strengthen institutional confidence and make it harder for political actors to portray every appointment as politically motivated.

Institutional rules are stronger safeguards than assurances of good intentions.

The State is larger than any government

One principle deserves particular emphasis: a government is not the State.

Governments are temporary. The constitutional State is continuing. Political parties change, parliamentary majorities change and political priorities change. The judiciary, however, must continue to function independently of whoever occupies the government benches.

The judiciary is neither a government institution in the political sense nor an Opposition institution. It is an institution of the State whose legitimacy depends upon its independence from both.

For that reason, governments should exercise particular caution when proposing constitutional changes affecting the judiciary, even where the policy objectives are legitimate.

The stronger a government is politically, the greater its responsibility to demonstrate institutional restraint.

That is not political weakness. It is constitutional maturity.

Public confidence is a constitutional asset

The most consequential issue may ultimately be neither retirement age nor judicial capacity, but public confidence.

Courts do not possess political power in the conventional sense. Their authority rests substantially on the acceptance of their decisions as legitimate.

Citizens will sometimes disagree with judicial decisions. But where the judiciary is perceived as independent, even unpopular decisions can command respect. If judicial institutions are perceived as being shaped by political convenience, even legally sound decisions may become vulnerable to suspicion.

Constitutional reform affecting judicial tenure must therefore be evaluated not only by its immediate administrative benefits but also by its effect on institutional credibility.

A reform that produces short-term efficiency while weakening confidence in judicial independence could impose a greater long-term cost. Conversely, reform that improves efficiency while preserving independence can strengthen both justice and public trust.

The challenge is not to choose between judicial efficiency and judicial independence. It is to achieve both.

If a referendum arises …

If the constitutional process ultimately requires approval by the people at a referendum, the debate should rise above the conventional government versus Opposition contest.

The electorate should be given a clear constitutional question and sufficient information to assess it.

Citizens should understand what problem the amendment seeks to address, why the proposed mechanism is considered necessary, what institutional risks have been identified, what safeguards exist and whether alternative measures could achieve the same objectives.

A constitutional referendum deserves a higher standard of public discussion than an ordinary election campaign.

The people would not merely be choosing a political side. They would be deciding the institutional framework within which political power and judicial authority operate.

Beyond who wins

The most important question arising from the proposed Twenty-Second Amendment is therefore not simply whether the government succeeds or whether the Opposition and BASL prevail.

Nor is it ultimately whether judicial retirement ages become 67 and 65 or remain unchanged.

Those are immediate constitutional questions. The deeper issue is what Sri Lanka learns from the controversy.

If the government seeks to modernise and strengthen the justice system, that objective deserves serious consideration. If the BASL and others warn that particular reforms may affect judicial independence, those concerns deserve equally serious examination.

Neither side strengthens the country by assuming that the other is acting in bad faith.

The constitutional system is strongest when legitimate disagreements are resolved through institutions rather than political pressure.

Whatever the eventual constitutional outcome, Sri Lanka will still face the underlying challenges of judicial vacancies, case delays, institutional capacity, judicial appointments and public confidence. Those problems will not disappear with a judicial determination, nor should the national conversation end there.

Sri Lanka should instead seek a broader consensus around a fundamental proposition:

Judicial reform and judicial independence are not competing objectives.

The real challenge is to pursue reform in a manner that strengthens the judiciary without placing its independence under suspicion.

That requires sound legislation, transparent appointments, adequate resources, efficient court administration, responsible political conduct and safeguards capable of surviving changes of government.

The present controversy will eventually pass. Political arguments surrounding it will fade.

But constitutional arrangements can endure for decades.

That is why Sri Lanka must look beyond the immediate political contest.

The ultimate test is not who wins today’s constitutional argument. It is whether, when the political moment has passed, Sri Lanka has a judiciary that is more efficient, more accessible and more trusted—while remaining sufficiently independent to hold every government, including future governments, within the boundaries of the Constitution.

Features

Farewell to a Fashion Icon

Published

22 hours ago

2026/09/3

Sahan Weerasooriya

Chula was very fond of The Island newspaper and kept in touch with us on a regular basis (L) / Chula: Sent us this photo for Glam Scene, just a couple of weeks ago (R)

Sri Lanka’s fashion world lost one of its brightest stars Monday morning – veteran model, actress, and elite pageant trainer Chulpadmendra “Chula” Kumarapathirana.

Her sudden demise has certainly come as a shock to many.

Chula had just completed a major event on Sunday (30th August), and was no more in the land of the living the following day (31st August).

Born in Colombo, she was an old girl of Buddhist Ladies’ College and later studied at the National Institute of Business Management, and has many awesome achievements to her credit.

In 2006, she won the “Miss Tourism Model of the World Press Award” in Tanzania.

She entered the entertainment industry, as an actress, and gained popularity through the teledrama “Wahinna Muthu Wessak.”

Chulpadmendra has been on TV, and many Sri Lankan hip-hop music videos, including “Hanthane” and “Heena Hirimal”, and has had several other minor acting jobs since then.

She hosted the Derana Miss Sri Lanka for Miss World 2008 and even participated in the reality TV show Sirasa Dancing Star.

For over 25 years Chula was active in local and international fashion and founded the Chulpadmendra Catwalk Studio to train young newcomers

She trained hundreds of models for runway, photoshoots, auditions, and international pageants.

She was known as a fierce mentor who believed in “not just learning to walk, but learning to command the runway”.

Many young models called graduating from her studio their “happiest moment.”

Chulpadmendra “Chula” Kumarapathirana: Many young models called graduating
from her studio their “happiest moment.” (L)/ Won the “Miss Tourism Model of the World Press Award” in Tanzania (R)

Chula was very fond of The Island newspaper and kept in touch with us on a regular basis.

Her last message to The Island was a ‘thank you’ note for the article ‘New benchmark in pageant industry’:

“Thank you, Ivan, for writing such a beautiful article about me. Your unwavering support, encouragement, and belief in me throughout my career mean more than words can express. I am truly grateful for your kindness and generosity.

“My heartfelt thanks also go to The Island newspaper for featuring the article. It is a great honour, and I sincerely appreciate the recognition and support.

“Thank you once again.”

In fact, just a couple weeks ago, she sent a photo of herself for our Glam Scene and that picture I publish today, as part of this story.

May she rest in peace. Our deepest condolences to her family, students, and all who loved her.