Connect with us

Opinion

Sri Lankan democracy enters new phase of forced retreat

Published

on

Text of the speech delivered by
Prof. Jayadeva Uyangoda
at the launch of the book,

Democracy and Democratization in Sri Lanka: Paths, Trends and imaginations, September 09, 2023, at Kamatha Cultural Center Auditorium, BMICH. Prof. Uyangoda is the Editor of this two-volume publication.

I have no doubt at all that the Chairperson of the BCIS, the Board of Academic Affairs, the BCIS management, the chapter contributors, and the BCIS staff are delighted to see the two volumes of Democracy and Democratization in Sri Lanka: Paths, Trends and imaginations in print. This, as far as I know, is the first major academic publication undertaken by the BCIS. It is Madam Chandrika Kumaratunga’s vision, initiative, guidance and unwavering support that has made this notable achievement possible.

It is she who proposed this research project’s thematic focus. She trusted the Academic Board and the research team and gave them a free hand to develop and work on it. At the same time, I apologize to her on behalf of the team for giving her a few anxious moments.

There were some delays caused partly by the general crisis triggered by the Covid-19 pandemic. Besides, the missed deadlines set during normal times were unavoidable in a project of research and publication of this magnitude, carried out in a time of exceptional crises in our society, politics and the everyday life. For me as the lead researcher and the Editor, seeing these two volumes in print is a worthy reward for two and half years of hard labour.

Context

We at the BCIS began to conceptualize and plan this publication on the experience of democracy in our country, at a time when the Sri Lankan people were on the verge of losing their democratic heritage. When the year 2019 began, the threat of a hard authoritarian system replacing a weak and battered democratic order had indeed become alarmingly real.

We at the BCIS Board of Academic Affairs and its Chairperson felt that an analysis of why a promising democracy at the time of independence had failed so abysmally is a theme warranting critical scholarly inquiry and explanation.

Thus, we launched this research and publication project on democracy and democratization in Sri Lanka in mid -2020. As I have already mentioned, the Covid-19 Pandemic of 2021 came while we had just begun our work. It interfered with our project in a variety of ways, including halting most of the research.

More significantly, the Pandemic had led to a new political process in Sri Lanka. It can be termed as accelerated backsliding of democracy spearheaded by one faction of the ruling elites. It appeared almost like the last stage of Sri Lanka’s democracy.

But, Sri Lanka’s democracy, even in retreat, has shown that it has had some magical capacity for surprises. And that is exactly what we witnessed during the Spring and Summer of 2022. Sri Lankan citizens suddenly woke up demanding more democracy than what the political elites were willing to concede.

During the Aragalaya of 2022, the ordinary people, citizens without wealth or power, rose up demanding substantive democratic reforms. The ordinary citizens in their capacity as demos began to make claims to their ownership of democracy. They also highlighted that Sri Lanka’s democracy in general and representative democracy in particular, were in a deep crisis.

It was indeed an attempt by the people, demos, to re-generate as well as re-invent democracy in Sri Lanka. That is why the citizens’ protest in 2022 diserves to be acknowledged as a significant turning point in the somewhat twisted process of democratization in Sri Lanka.

In brief, the events of 2022 provided new perspectives and critical insights immensely useful to our own work on democracy and democratization in Sri Lanka. It showed us that the ordinary people play a powerful role as an agency for democratization. Their faith in democracy is far greater than that of the elites who exploit democracy for predatory ends. That is the spirit with which these two volumes evolved.

Organisation of the Book

The book has 22 chapters divided into two volumes. They are written by Sri Lankan scholars. The chapters are lined up under six themes which are as follows:

· Democracy in South Asia and Sri Lanka: Historical and Conceptual Contexts.

· Constitutional and Institutional Crises of Democracy in Sri Lanka.

· Democracy in the Social and Ethnic margins

· Alternative Forms of Democratic Thinking and Practice

· Democracy, Discontent and Resistance

· Protests as a Vector of Democratisation.

I want to share with you very briefly what I as the Editor see as unique about this book.

· This is the first book-length scholarly work exclusively devoted to the theme of democracy in Sri Lanka.

· All chapter contributors are Sri Lankan scholars who have been witnesses to the rise, decline and attempts at regeneration of democracy.

· The analysis developed in the chapters do not belong to a specific disciplinary area of the social sciences, such as political science or constitutional law. There is a plurality of approaches from the fields of social sciences and humanities.

· The book does not advocate or campaign for any particular version or variant of democracy. It argues for the plurality of democracy as a political concept and practice. Yet all chapter contributors stand for bringing the normative ethics of equality, freedom, justice and social emancipation back to the theory and practice of democracy.

Key Messages

What are the messages that these two volumes with chapters on diverse themes convey? Let me share with you a few of them that have a direct bearing on how we should view democracy and democratization anew.

· Democracy, as an organizing principle of political and social life, has strongly local social and popular roots in Sri Lanka as it has been the case elsewhere globally: It is a historical fact that modern democracy in Sri Lanka is an aspect of the European colonial legacy: However, people of Sri Lanka from various social classes have appropriated it and made use of it for their own social interests. In this process, there has been a double transformation. While the local society and its politics has been altered by liberal democracy, the local society has also changed the idea of democracy with a substantive, though subtle, critique of liberal democracy.

This has two theoretical implications. Firstly, the Sri Lankan people have not been passive recipients of a Western, European, or colonial, political idea. Secondly, they have played an active, agential role in appropriating and transforming that European idea. This book describes it as a creative process of ‘localizing democracy.’

· Ideas and practices of democracy have preceded the invention of the language of democracy

: Genealogies of the idea and practices of democracy predates its colonial origins in Sri Lanka and South Asia. The impulses and desires for democracy have always been there everywhere and whenever there were organized political power in the form of the state in pre-modern societies too. Historical and literary evidence in ancient and pre-colonial India and Sri Lanka show that the human desire for freedom from domination, independence, autonomy and justice have been integral to the social and political struggles within organized social formations.

It has been so in the processes of state formation in ancient Sri Lanka and South Asia, as elsewhere. This is the primary historical essence of ‘universalism’ of the idea of democracy. In other words, the idea and practices of democracy have been there in many forms in pre-colonial societies long before the language of modern democracy has been invented and the impulses for democracy rigidly formalized and frozen in meaning.

· The ordinary citizens are more faithful custodians of democracy than the elites:

Democratization is not a process confined to the activities of political elites as well as governments, as wrongly assumed in the mainstream democracy studies and assessments. The Sri Lankan case studies in the book show that democratization from below, at the level of the governed and the disempowered citizens, is most important in mapping paths of democratization in Sri Lanka. This thesis is valid to democracy’s liberal variant too.

The book shows that the dispossessed and the ordinary citizens, rather than the elites, have had a greater stake at defending and consolidating democracy. They have done it through the struggles of resistance against the elite-led de-democratization. The elites have domesticated, tamed, abandoned, and even became hostile to the liberal normative content of democracy.

People have also collaborated with backed the political elites in the latter’s projects of de-democratisation. However, in crucial moments of crisis the people, demos, have defended and deepened the idea and the normative content of even liberal democracy in Sri Lanka.

· Elite capture of liberal democracy has made democracy thin

: A lesson I have learned in the course of research for this book is that liberal democracy has the unintended consequence of dividing the population of Sri Lanka into two new classes in its own way: political elites and political non-elites. This has been a general pattern in other societies too.

Sri Lanka’s process of elite-led democratic backsliding has been paralleled with the introduction of representative government early last century. Elites who benefitted from the electoral, representative democracy have appropriated the liberal democracy and used it as an instrument for consolidating their social, economic, political and familial power.

Thus, the conception of democracy associated with Sri Lanka’s ruling elites has been a thin and truncated version of liberal democracy. Its role in democratization has now come to an effective end. Sri Lankan people await a strong democracy in terms of its social roots and normative commitments.

· Popular resistance to deprivations and unjust exercise of power has deepened the normative foundations of democracy in Sri Lanka

: The instrumentalist use of representative and parliamentary democracy by the elites is only one side of the story of democratization in Sri Lanka. In contrast, there is a subaltern story of democratization too.

The Left parties, working class, peasants, the working people, women’s groups, ethnic minorities, and student movements have contributed substantively to deepening the idea, the meaning, normative goals and the social relevance of Sri Lanka’s democracy. Through social practices of demands and direct political action for substantive equality and justice, they have shown how the limits of narrowly conceived and much abused representative democracy could be reformed. Thus, Sri Lanka’s democracy is not the monopolistic possession of the political elites. It is the inheritance of a plurality of non-elite social groups as well.

· Continuing conflict between democratic backsliding and popular demand for more democracy awaits a deep-democratic resolution:

Since independence, Sri Lanka’s democracy has evolved along two contradictory trajectories. The first is the path of democratic backsliding and de-democratization chosen by the elites. The second is the path of demanding and fighting for more democracy by the subordinate and non-elite social classes, trade unions and social movements, the civil society groups, and reformist elites.

The conflict between these two opposing paths is a major facet of the crisis of democratization in Sri Lanka. Its resolution presupposes a project of re-democratisation through radically substantive political and constitutional reforms.

What is Happening to Democracy

Let us briefly reflect on what is happening to democracy in Sri Lanka at present. Sri Lankan democracy seems to have entered a new phase of forced retreat engineered by the new ruling coalition. People of Sri Lanka who have yearend for the revival of democracy find themselves caught up in a new version of what our book calls the ‘de-democratization trap.

’ Its key feature has been the incorporation of ordinary citizens as disempowered voters to a deceitful social contract crafted by the political elites. As the citizen’s protests last year and this year have shown us, that deceitful social contract is now shattered. Citizens want to replace it with a deeply democratic and authentic social contract.

Meanwhile, there seems to be two processes of polarization of the Sri Lankan society into two hostile camps. The first is between the haves and have nots in the economic and social sense. The second is the growing enmity between the majority of the citizens who crave for more democracy and a minority of the elites who thrive on no democracy. The ways in which these polarities and contradictions will play themselves out are sure to shape the nature of politics of Sri Lanka in the months and years to come.

Returning to open democracy, more executive, legislative and judicial accountability, re-democratization of the constitution, the state, the government, and parliament, guaranteeing of economic and social justice to the poor, the working people and the middle classes are essential pre-conditions for resolving these contradictions peacefully with no recourse to violence by any side. That is also a message implicit in our book.

So, students of democracy in Sri Lanka will have a politically exciting time ahead. I and my collaborators sincerely hope that these two volumes will inspire a new interest in democracy studies among the young scholars in Sri Lanka. I am also hopeful that the readers will not fail to notice that the chapters have been written by a team of Sri Lankan scholars who have a deep passion for democracy.

Finally, let me thank a few people whose contribution to the success of this initiative warrants special acknowledgement. I have already referred to the inspiring and non-interventionist leadership provided by Madam Kumaratunga. Of course, it is our team of chapter contributors who have made these two volumes actually possible. They had the patience to tolerate the constant nagging by an impatient Editor and his support staff.

I must also mention the contribution made by our two copy-editors, Madara Rammunthugala and Nicola Perera, for refining the entire text. All reveiwers of the draft chapters also deserve my grateful acknowledgement for their contribution to ensuring the scholarly quality and standards of the publication. Suresh Amuhena designed the cover for us amidst many other commitments. Dr. Minna Taheer and Ms. Isuri Wickramaratna of the BCIS extended to me their assiatance throughout this project.

The BCIS staff Board of Academic Affairs and BMICH Board of Management ensured generous institutional support for the success of this entire intiative. Finally, Mr. Vijitha Yapa and his staff undertook the task of designing, printing and selling the book. All of them are partners of this worthy achievement. There are so many others who deserve my sincere thanks, and they are mentioned by name in the ‘Acknowledgements’ section book.

Finally, I am really happy that we have Professor Pratap Bhanu Mehta, an eminent scholar from India, as our keynote speaker. I will not take any more of your time to allow you to listen to his erudite presentation.



Continue Reading
Advertisement
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Opinion

Sri Lanka cannot afford to remain silent on its demographic crisis

Published

on

I venture to make this appeal because I am increasingly concerned about what appears to be an inexplicable silence surrounding one of the most consequential challenges confronting Sri Lanka, the country’s emerging demographic crisis.

Nearly a year has elapsed since the official release of the latest Census population findings by the Department of Census and Statistics. The demographic signals revealed by the Census deserve far greater public scrutiny than they have received. An ageing population, declining fertility and a contraction of the working-age population are not merely statistical observations. Together, they have profound implications for the future economic, social and institutional sustainability of the country.

Yet, remarkably, the subject has not generated the level of informed public debate one would reasonably expect from a matter of such national importance.

What concerns me even more is the apparent reticence of those who are best placed to enlighten the public, the planners, demographers, academics and scholars attached to our universities and other institutions of national importance. Their silence is difficult to understand when the demographic trajectory of a country can influence virtually every aspect of its future: economic growth, labour-force availability, pension obligations, healthcare expenditure, education planning, family structures and the sustainability of social protection systems.

This is not an issue that can safely be postponed until the consequences become unmistakable. Demographic change is notoriously slow to reverse. By the time its consequences become visible in the form of labour shortages, an excessive dependency burden or an unsustainable ageing population, the policy options available to governments may already have narrowed considerably.

The public therefore has a legitimate right to ask some fundamental questions.

Where is the national demographic strategy? What are the projections for the next 20, 30 and 50 years? How rapidly is the working-age population expected to decline? What will be the implications for economic growth and productivity? How will Sri Lanka finance the needs of an ageing population? What measures are contemplated to address declining fertility? And, perhaps most importantly, has the country begun preparing now for a demographic reality that is already taking shape?

These are not questions that should be confined to academic journals or government reports. They deserve to be debated openly in the national press and explained to the ordinary citizen in language that everyone can understand.

At the same time, I would urge our demographers, economists, planners and scholars to come forward with evidence-based assessments rather than remain silent. If my interpretation of the demographic trends is misplaced, I would welcome a scholarly rebuttal. If the situation is more serious than is generally recognized, the public deserves to know that as well.

Silence is not a demographic policy.

Sri Lanka has already experienced the consequences of failing to anticipate several national crises. We should not allow demographic change, which operates quietly but relentlessly, to become another crisis that we recognise only when it is too late to manage.

The time to discuss Sri Lanka’s demographic future is not when the crisis arrives. The time is now.

Athula Ranasinghe

Continue Reading

Opinion

Sri Lanka must become easier to invest in

Published

on

Prof. Ranjith Bandara,
PhD (Qld.,) Emeritus Professor, University of Colombo

Investment promotion has been Colombo’s default strategy for two decades. The real barrier to foreign capital was never Sri Lanka’s pitch — it is Sri Lanka’s paperwork and administrative complexity.

For more than two decades, investment promotion has been one of Sri Lanka’s key development strategies. Successive governments have introduced investment incentives, established export-processing zones, strengthened promotion agencies, and dispatched delegations to road shows and conferences across the world. The message abroad has remained largely unchanged: Sri Lanka is open for business, and the opportunity is real.

That opportunity is not in question. The island sits strategically alongside some of the world’s busiest shipping lanes in the Indian Ocean. It has a relatively well-educated workforce, established commercial institutions, a strong tourism base, natural resources, and direct access to a South Asian market of well over a billion people. On paper, Sri Lanka should be attracting foreign capital on a much larger scale.

It is not. And the reason is not that the world has failed to hear Sri Lanka’s investment pitch. The problem is that promoting an investment opportunity and delivering the conditions promised to investors are two very different things — and Sri Lanka has historically devoted far more energy to the former than to the latter.

A recovery that still falls short

There has been genuine improvement recently. According to UNCTAD figures, inward FDI rose from roughly US$759 million in 2024 to US$1.04 billion in 2025 — the strongest performance since 2022, when inflows reached US$884 million, before falling back to US$713 million in 2023.

That trajectory is welcome. Yet, in the context of what Sri Lanka needs, it remains modest. Set against a GDP exceeding US$100 billion, US$1 billion in FDI represents roughly 1% of national output — only a fraction of what an economy pursuing serious industrialisation, technological upgrading and export expansion requires.

For comparison, Vietnam, a country against which Sri Lanka is often benchmarked, attracted more than US$20 billion in FDI in 2025 alone. Nobody expects Sri Lanka to match that scale overnight. But the gap is instructive: global capital is mobile, and investors have choices. Sri Lanka is not merely competing against its own past performance. It is competing with India, Vietnam, Indonesia, Bangladesh, Malaysia and Thailand, all pursuing the same global pool of investors.

Moreover, the issue is not only the quantity of investment, but also its quality. A country does not simply need short-term capital inflows; it needs investment that brings technology, managerial expertise, links to global markets, skills development, productivity gains and long-term export capacity. FDI policy should therefore move beyond asking, “How much investment came in?” It should also ask: “How much did that investment contribute to productivity, exports, technology transfer and the quality of employment?”

That leads to the question that should sit at the centre of national economic strategy: why, specifically, should an investor choose Sri Lanka over these alternatives?

Real obstacle is cumulative friction, not a single flaw

Investors do not evaluate countries on rhetoric. They compare them, line by line, on production costs, energy prices, logistics, taxation, regulatory predictability, political stability, labour relations, infrastructure quality, and the speed and reliability of approvals.

Sri Lanka is not catastrophically weak in any single one of these areas. The problem is cumulative. Small inefficiencies and delays across multiple fronts eventually add up to a high overall cost of doing business, even when no single obstacle appears decisive on its own.

This cumulative friction can be particularly damaging to small and medium-sized foreign investors. A large multinational may be able to employ legal advisers, consultants and government-relations teams to navigate a complicated administrative system. A medium-sized investor may be unwilling or unable to bear those additional costs. An unnecessarily difficult administrative environment therefore does more than delay investment — it can reduce both the number and diversity of investors willing to enter the country.

Bureaucracy is a central part of that friction. Investors routinely have to navigate multiple agencies with overlapping mandates and, at times, inconsistent rulings. The deeper problem is not regulation itself, but the absence of clear procedures and predictable timelines.

A guaranteed 60-day approval process is workable, even if it is not ideal. A process that may take one month or may take six is not. Investors can price a known delay into a project. What they struggle to price is uncertainty.

And uncertainty has a real financial cost. Every month that a project waits for approval can mean higher financing costs, delayed machinery orders, missed market opportunities and, ultimately, the possibility that the investor relocates the project to another country. Administrative delay is therefore not merely an inconvenience within government offices; it is a national competitiveness problem.

A genuine single-window system — one application, one digital file, one responsible case manager and fixed statutory deadlines — could do more to improve investor confidence than another round of tax incentives.

But a genuine single window must be more than a single desk at which applications are submitted. All relevant agencies should be digitally connected through the same platform. The investor should be able to see where an application stands, which agency or officer is responsible, what requirements remain outstanding, and when a decision is legally due. The investor should not have to become the coordinator of government agencies.

Policy volatility compounds the problem. Investors can plan around relatively high taxes. They cannot plan around taxes, incentives, import rules and foreign-exchange controls that shift unpredictably with every change in government or fiscal circumstance.

Such instability embeds a “policy-risk premium” into every long-term investment decision. That cost may never appear directly in headline statistics, but Sri Lanka pays it through investments that are delayed, scaled down or never made.

The answer is not to freeze every policy permanently. Economic circumstances change and governments must retain the ability to respond. What matters is that changes are introduced with reasonable notice, clear transitional arrangements and predictable implementation periods. Long-term investors do not require a world in which nothing changes; they require a system in which change itself can be anticipated.

Administrative discretion adds another layer of risk. Where licensing and approval outcomes depend more on relationships than on published, rule-based criteria, investors correctly interpret that as exposure — to delay, arbitrariness or worse.

Digitising approvals, publishing statutory timelines, reducing unnecessary discretionary authority and opening public procurement to transparent competition would reduce this risk directly. The governance benefits of such reforms would extend well beyond the investment climate.

None of this is an argument against labour protection. Strong labour standards are entirely compatible with a competitive investment environment, as many advanced and emerging economies demonstrate. The problem arises when industrial relations become unpredictable or politicised. That is a governance problem that can be addressed, not an unavoidable trade-off between worker welfare and competitiveness.

Nor is low labour cost, on its own, a winning strategy. What investors ultimately price is unit labour cost, which reflects productivity as well as wages. A country that competes purely on cheap labour while tolerating high energy prices, logistics delays and regulatory friction is not really offering investors a cost advantage — it is offering a false economy.

Physical infrastructure, too, is only part of the picture. Reliable electricity and serviced industrial land matter, but so does the institutional architecture around them: efficient customs, functioning courts and arbitration mechanisms, digital government services, reliable certification systems and predictable regulatory enforcement.

Investors are not simply buying land and electricity. They are buying access to a functioning business ecosystem.

From announcements to outcomes

Perhaps, the most consequential shift Sri Lanka needs is in how it measures its own success.

For too long, the metric has been approvals granted, memoranda signed and projects announced — announcements rather than outcomes.

What should matter instead is capital that actually enters the country, factories and businesses that actually commence operations, jobs that genuinely materialise, exports that expand, and investors that remain and reinvest.

The gap between approved investment and realised investment is where much of Sri Lanka’s promise has historically evaporated. Closing that gap requires dedicated project management and systematic follow-through, not another press release.

Every major investment project should therefore have clear post-approval responsibility. If a project is stalled because of land, electricity, a licence, customs, infrastructure or financing, the problem should be identified quickly and escalated to the appropriate authority.

The present logic must be reversed. Rather than forcing the investor to move from ministry to ministry and agency to agency searching for solutions, government should have a system that actively identifies and removes obstacles preventing an approved investment from becoming operational.

The performance of investment-promotion institutions should likewise be measured not by the number of MoUs signed or approvals issued, but by capital actually invested, projects implemented, jobs created, exports generated and reinvestment secured. This would begin to close the institutional gap between investment promotion and investment implementation.

Global competition is only intensifying. The sectors now driving some of the largest FDI flows worldwide — semiconductors, artificial-intelligence infrastructure, renewable energy, advanced manufacturing, pharmaceuticals and critical minerals — are increasingly dominated by economies capable of offering subsidies on a scale Sri Lanka cannot realistically match.

That reality should clarify Sri Lanka’s strategy rather than discourage it. If Sri Lanka cannot out-subsidise its competitors, it must out-execute them.

Speed, certainty and administrative efficiency are not consolation prizes. For a country in Sri Lanka’s position, they may be among the most valuable incentives it can offer. Unlike large cash subsidies or tax concessions, they can be delivered at relatively low fiscal cost once the right systems are established.

The policy choice ahead

Sri Lanka’s renewed international engagement — including recent outreach to markets such as Australia — is a reasonable and necessary part of any investment strategy. No country can attract capital it never asks for.

But promotion without domestic reform is ultimately a roadshow with too little behind it. A conference can bring investors to the table; only institutional efficiency determines whether they sign, build, operate, expand and stay.

The government now faces a straightforward choice, and it is one that should be measured in policy rather than rhetoric: continue treating FDI primarily as a promotional challenge, or commit to a genuine Investment Competitiveness Programme.

Such a programme should include a true digital single window, enforceable approval timelines, a stable multi-year tax framework, reduced administrative discretion in licensing, and a public dashboard that tracks actual investment outcomes rather than signed intentions.

That dashboard would also be an important instrument of public accountability. Information such as the value of approved investment, the value actually realised, average approval times, causes of delay and performance by responsible agency should be publicly available. Such transparency would not only strengthen investor confidence; it would also create accountability across government institutions for the speed and quality of implementation.

Most importantly, FDI reform should not be viewed as providing special privileges to foreign investors. Clear rules, faster approvals, efficient public services, transparency and policy stability are equally important to domestic entrepreneurs.

Making Sri Lanka easier for a foreign investor is therefore, in the final analysis, about building a more efficient economic system for every business operating in Sri Lanka.

The question Sri Lanka’s policymakers should now be asking is no longer, “Have reforms been introduced?” Instead, it is this: “Has investing in Sri Lanka actually become easier?”

Once the answer to that question is in the affirmative, the country may find that it needs far fewer roadshows. Because the most persuasive advertisement for Sri Lanka will not be a delegation travelling abroad. It will be an investor already operating in Sri Lanka telling the next investor: “The system worked.”

Continue Reading

Opinion

Judiciary must not become price of political power: A call for conscience, restraint and public confidence

Published

on

by Shelton Dharmaratne

Sri Lanka is now confronted with an issue that goes far beyond the retirement age of a few judges. At stake is something infinitely more valuable, the confidence of the people in the independence, impartiality and dignity of the judiciary.

An intervention by Emeritus Professor A. N. I. Ekanayaka deserves serious public attention because it identifies a fundamental danger: when the conditions of judicial tenure are altered in circumstances that generate public suspicion, the damage may extend far beyond the immediate legislation.

The government has proposed the 22nd Amendment to the Constitution, under which 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 Bill also proposes increasing the maximum number of Court of Appeal judges from 19 to 24.

There may be perfectly legitimate arguments for increasing judicial retirement ages. Longer life expectancy, accumulated judicial experience, the need for additional judges and the enormous backlog of cases can all be discussed rationally. Indeed, the government has presented judicial capacity and the expansion of the court system as reasons for the proposal.

But that is not the whole question.

The more fundamental question is why now; why in this manner, and why should the public be expected to accept an alteration of the constitutional tenure of sitting superior-court judges without the fullest possible consultation and reassurance?

That question cannot simply be dismissed as political opposition or resistance to reform.

The Bar Association of Sri Lanka has expressed precisely this concern. Its July resolution states that security of tenure is an essential safeguard of judicial independence and questioned the absence of demonstrated compelling necessity, objective evidence and comprehensive consultation. The Commonwealth Lawyers Association similarly warned that constitutional reform should not be undertaken piecemeal or ad hoc and emphasised the importance of public and stakeholder consultation. More recently, the UN Special Rapporteur on the independence of judges and lawyers raised concerns that the proposed change, in its reported form and implications, could affect judicial independence, separation of powers and public confidence in the courts.

These concerns deserve to be heard—not because every criticism of the government must necessarily be correct, but because the judiciary is different from every other institution of the State.

A government can survive criticism. A political party can survive defeat. An administrative department can survive controversy. But a judiciary cannot function effectively if the public begins to believe that judges may owe their continued tenure to the political authority that changes the rules governing their retirement.

Justice must not only be done; it must also be seen to be done.

This is where Professor Ekanayaka’s proposal deserves particular consideration. He does not suggest that judges should determine whether the proposed retirement age is a good or bad policy. Instead, he appeals to those judges who might personally benefit from the proposed extension to voluntarily declare that they will retire according to the existing retirement provisions and will not personally take advantage of the extension.

That would be an extraordinary act of judicial statesmanship.

Such a declaration would immediately separate the individual judge from the political controversy surrounding the legislation. It would tell the country: My loyalty is not to my position. My loyalty is to the institution of justice.

It would also remove much of the suspicion that inevitably arises when a constitutional amendment appears capable of benefiting people already occupying the very offices affected by it.

This is not an accusation against any individual judge. Nor should it be interpreted as suggesting that judges who remain in office under a new law would necessarily act improperly. That conclusion would be unfair and unjustified.

The issue is one of institutional perception.

If the public sees the government changing the constitutional retirement framework while particular judges are approaching retirement, suspicion is almost inevitable. Even a completely independent judge may then find that the credibility of a perfectly lawful judgment is questioned merely because of the circumstances surrounding his or her continued tenure.

That is an intolerable burden to place upon the judiciary.

Sri Lanka’s constitutional history provides ample reason for caution. The country has previously witnessed bitter confrontations between political power and judicial independence. The lesson from such episodes should not be that one political party was uniquely guilty while another is uniquely virtuous. The deeper lesson is that no government, however popular, should ever become so confident of its own righteousness that it regards institutional criticism as an obstacle to be overcome by parliamentary numbers alone.

A two-thirds majority is a constitutional instrument. It is not a substitute for wisdom.

And if the Supreme Court ultimately determines that a referendum is constitutionally required, that constitutional process must be respected without political intimidation, triumphalism or resentment. The question should not be whether the government has sufficient political strength to prevail. The question should be whether the constitutional order has been strengthened or weakened by the manner in which the change is pursued.

This is, therefore, not fundamentally an NPP issue, a JVP issue, an Opposition issue or a government Issue. It is a Sri Lankan issue.

The beneficiaries of the proposed extension should also understand this. If the amendment eventually becomes law, accepting its benefits may be entirely lawful. But legality and legitimacy are not always identical concepts. A judge who voluntarily declines a personal benefit arising from a controversial alteration of tenure would send a message of exceptional moral strength.

The people of Sri Lanka need such reassurance.

The government should, therefore, pause, consult the Judiciary, the Bar, academics and wider civil society, and demonstrate that judicial reform is being undertaken for the enduring benefit of justice rather than for the immediate convenience of government.

And the judges, who may personally benefit, have an equally historic opportunity.

They can rise above the controversy.

They can voluntarily relinquish the personal advantage.

They can demonstrate that the office is greater than the office-holder, the Constitution is greater than the government, and justice is greater than political power.

If they do so, they will not merely be retiring from judicial office; they will be leaving behind something far more important, a renewed measure of public faith in the proposition that, in Sri Lanka, justice remains above politics.

Continue Reading

Trending