by Rajan Philips ✍️

That warfare is a continuation of politics by other means has been an overused quote in Sri Lanka. In the present context, we might modify it to say that lawfare is also an extension of politics but by mostly the same means. The context for the current lawfare episode has been set up by the Writ Application filed by Retired Major General Suresh Sallay before the Court of Appeal, challenging his arrest and detention under the Prevention of Terrorism Act (PTA). He is a suspect in the renewed investigations of the 2019 Easter bombings, but has not been charged of any violation of the law. The burden of his writ application is that his arrest and detention under the PTA are unlawful and, therefore, he should be released.

A number of intervening writ applications have also ben filed before the Court both in support of and in opposition to Mr. Sallay’s application. The Court of Appeal has fixed a special date, August 4, to hear just the intervening petitions. With the exception of the petition filed Cardinal Malcolm Ranjith opposing Mr. Sallay’s application, all the other petitions I believe are in support of the application. Cardinal Ranjith’s petition is asking for the dismissal of Mr. Sallay’s writ application, for allowing that would “impede the ongoing Criminal Investigation Department (CID) investigations into the 2019 Easter Sunday bomb attacks.”

Those filing in support of Mr. Sallay include prominent figures in the country’s debates over nationalism and constitutionalism. A common theme in their petitions is that while they are not against any ‘lawful investigation’, they are sufficiently concerned to urge the Court to keep in mind – as reported in the newspapers – “the wider constitutional and societal implications arising from attempts to reshape the established narrative of the 2019 Easter Sunday attacks.” The supporting petitions are equally concerned about the space for the emergence of a counter-narrative – again, as reported – “unproven allegations have created a public narrative suggesting a wider conspiracy involving Sinhala Buddhist military and intelligence officers, contrary to the findings of the Supreme Court and the Presidential Commission.”

It is the broader contentions asserted in the petitions supporting Mr. Sallay’s application is what I am calling here as the return to old politics. It is of course not that old for it has been the dominant mode of politics until 2024, and it is raising its head in a substantive way for the first time after the election of the new NPP government. Left to court filings the old politics should wither away under the weight of evidentiary material and legal arguments that alone will ultimately hold sway in any and all court proceedings. But the old politics is having an inadvertent companion in what I see as emerging new politics, and the confluence of the two may create a new challenge for the still fledgling NPP government.

The shape of this new politics is evolving around the government’s controversial proposal to extend the age of retirement of judges by two years – from 63 to 65 for the Court of Appeal Judges and from 65 to 67 for the Supreme Court judges. The proposal that was first mooted for the judges of the two superior courts has since been extended to all judges. A case of the government compounding its own case, so to speak.

Not for the first time, the government would seem have mishandled its own situation by not being forthcoming and pro-actively explaining its intentions and the reasons for seeking to extend the age of retirement for judges. The politics of the matter is being shaped by too little sayings by the government and too much protesting by its critics. There is a veritable piling on about this matter that was never there in the past when government actions targeted the judiciary even more ominously than it would appear to be the case now. While the return of the old politics and the emergence of the new are not manifestly connected now, it is almost natural that they will find ways to be mutually reinforcing.

The politics of Writ Applications

The supporting and opposing petitions in the Suresh Sallay case are symptomatic of the great divide in the political universe, if not much of the country, over the status of investigations and their findings about the Easter attacks. While the supporting petitioners are convinced about the conclusiveness of all the previous investigations, inquiries and litigations, the Catholic Cardinal is speaking for those who are equally convinced of the inconclusiveness and the incompleteness off all the previous investigations and their findings.

Their contention is that what has been established so far is limited to the truth about the organizational planning and executions of the bombings, on the one hand, and the failure on the part of state officials to prevent those attacks in spite of being aware of prior intelligence warnings about the impending attacks. The missing part of the whole truth in this view is the possibility of prior contacts and even collusion between state officials and the perpetrators of the attack.

Those who assert the conclusiveness of all previous investigations conveniently ignore some salient facts. First, of the four presidential inquiries (the first two by President Sirisena and the last two by President Wickremesinghe) only one – the Presidential Commission of Inquiry headed by Janak de Silva produced some results. The other three were washouts. The Parliamentary Select Committee, which was opposed by President Sirisena and was boycotted by the Rajapaksas and the SLPP, produced a useful report and its findings became grounds for fundamental rights applications against state officials accused of negligence.

Second, it is incorrect and unfair to say that the Supreme Court has conclusively ruled on all aspects of the Easter attacks matter. The Court has only ruled on the 12 fundamental rights cases that were brought before it. There are over 90 cases in the lower courts, including 41 High Court cases and the main case in a High Court Trial-at Bar, and all of them have been dragging on for all these years with no end in sight. There might be new indictments and cases arising out of the new investigations under the NPP government.

Third, it is conveniently forgotten that the investigations that had a chaotic start under Maithripala Sirisena were completely stalled after Gotabaya Rajapaksa became President in November 2019. All of this was well known among those who were frustrated about the whole process and the total lack of progress. It was also known among others but they rather chose to remain faithful to “the established narrative of the 2019 Easter Sunday attacks.”

In a recent Court of Appeal hearing into the former President Gotabaya Rajapkas’s Writ Petition for a court order preventing his arrest, the government lawyers vigorously pushed back against what they called the suppression or misrepresentation of material facts by petitioner Rajapaksa pertaining to aspects of the Easter attacks. The upcoming hearing on the intervening writ applications in connection with Mr. Sallay’s main petition, will provide the forum for further contestations over material facts as well as other arguments that may not be quite material to the case.

Pertinent to the ‘old politics’ theme of this article, there will likely be allusions to the so called broader implications for the constitution, the state and of course the Sinhala Buddhist nation. The written submissions, as reported in the media, have already alluded to them. To be sure, and as has been noted by others, most inimitably by Punchi Putha in the 5^th Column of the Sunday Times, there was no great intervening concern in the immediate aftermath of Suresh Sallay’s arrest in February, early this year. The political interest and invocations of Sinhala Buddhist nationalism came fast and furious only when the Easter lawfare gaze turned on Gotabaya Rajapaksa. Now the two are inseparable and there will be overlapping and mutually reinforcing allusions

For the NPP government that seems to have comfortably settled on its own illusory premise of a post-communal/post-racial Sri Lanka, the return of old politics will be another distraction. The NPP is politically too astute to miss the confluence of lawfare and politics in the writ applications for and against investigating the Easter attacks. Its grassroots grounding may prove to be a strong enough bulwark against the new arrival of the old communal politics. A bulwark that the Old Left and the new Liberals could not easily fall back on when they took the fight to communal politics and ethno-nationalist excesses. What should be a bigger concern for the NPP government is the emerging new politics that is formally predicated on the independence of the judiciary but can easily become part of a political pincer against the government.

The Politics of Judicial Retirement

To be sure, the current controversy over the age of retirement of judges is a self-inflicted problem for the government. The first indication is reported to have come from remarks made by President AKD himself to a gathering of the Judicial Officers Association and the High Court Judges Association, in early June. Although the main focus was on giving two year retirement extension to the Court of Appeal and Supreme Court judges, the President is reported to have expressed an intention to similarly extend the age retirement for all judges. While there was no reported response by those attending the meeting, the news about the President’s remarks spread like wildfire within legal circles.

Critics immediately pounced on the initiative as a ruse to extend the tenure of the current Chief Justice Padman Surasena who is due for retirement in December this year, in what would be a very short tenure (July 2025 to December 2026) for a Chief Justice anywhere else but has become the norm for Sri Lankan Chief Justices this century. That is another matter. The government has not formally responded to criticisms and according to the Bar Association of Sri Lanka (BASL), its letters on the matter to the President and the Minister of Justice remain unanswered. While being silent, the government is neither deaf nor blind to what is going on.

It is quite possible that the government feels self-assured by the lack of unanimity within the judicial and legal fraternities. A case in point is the variously reported July 11^th Special General Meeting of the Judicial Services Association. The meeting unanimously voted against the government’s proposal but it was attended by only 65 of its 250 members. The meeting apparently lacked quorum and the Association’s President, Magistrate Pasan Amarasena, had resigned earlier protesting against the impropriety of the meeting itself. There are also mixed reports about the sentiments within the judicial fraternity and the reported reactions to the administrative discipline attributed to the current Chief Justice.

The government is also aware that its Easter lawfare is generally popular in the country. According to reports of a recent CPA survey, slightly over 50% of the people support the NPP government’s handling of the investigation into the Easter attacks, and support rises to nearly 60% among people under 30 years. So, the government may choose to turn a deaf ear to all the learned criticisms and carry on with its proposal by simply passing a constitutional amendment using its thumping parliamentary majority. A referendum is obviously not needed for this, but a Supreme Court ruling to that effect will likely be greeted by some critics as self-serving.

Such a course by the government is not at all beyond reproach. For it turns the old adage – there have been bad judges, there will be bad judges, but there are no bad judges – on its head by making present judges bad judges. And it creates the corrosive environment of disappointment and frustration among junior judges aspiring for promotions. While there are good reasons to extend the age of retirement systemically for the future, benefiting those currently in office is not a welcome formula.

At the same time the government may be handicapped by the limited pool of judicial officers from whom it has to make choices. The delay in filling the current vacancies in the Supreme Court may be the symptom of a more structural problem than political expediency. These are sensitive topics that no politician or government can loosely talk about. Not everyone is a Donald Trump. Only a properly ribboned presidential commission can weigh in on these matters.

In all the verbal brouhaha about retirement ages, hardly anything has been said about how the Supreme Court came to have as many as 16 judges and to have such quickfire turnovers of Chief Justices. In the US and other countries the average tenure of Supreme Court judges, especially Chief Justices, span multiple presidential terms and different presidents. A long span at the bench, as opposed to a rapid turnover is both necessary and conducive for facilitating judicial independence, stability and consistency.

On the other hand, changing Chief Justices every two years is not a recipe for judicial independence or stability. When a President can appoint more than two Chief Justices in one term, which aspiring Chief Justice is going to professionally inert about his promotional prospects? President Dissanayake has been in office for barely two years and he is set make his third Chief Justice appointment come December this year.

The 1978 Constitution (Article 119) prescribed that the Supreme Court shall consist of a Chief Justice and not less than six and not more than ten other judges. The expansion of the Supreme Court to 16 judges, and the Court of Appeal from 12 judges to 19 judges, came through a constitutional amendment but without anyone noticing or opining about. For it was sneaked in during the third reading of the 20^th Amendment in October 2020, when Gotabaya Rajapaksa was President and Ali Sabry was the Minister of Justice.

Mr. Rajapaksa appointed five new Supreme Court judges in a single month, December 2020. In other times and in other places that would have been called packing the court. Of the current bench of 12 Supreme Court judges, seven are Gotabaya Rajapaksa appointees and five are Dissanayake appointees. Four of the latter were appointed in a single month in January 2025. Only the Chief Justice was appointed by a different president, President Sirisena, in January 2019.

As for Chief Justices, there were eight of them between 1948 and 1977, and six from 1977 to 2009. Since 2009, there have been nine more judges including the present Chief Justice, in a span of 17 years, an average of less than two years. The tally for Chief Justice appointments by Executive Presidents since 1977 indicates three by President Jayewardene, two by President Premadasa, one by President Kumaratunga, three by President Mahinda Rajapaksa (one of whom was impeached and removed), four by President Sirisena, none by President Gotabaya Rajapaksa, and two in two years by President Dissanayake.

What is not revealed by these tallies are the affronts that the judiciary and especially the Chief Justices have suffered at different times at the hands of the executive. To wit the summary sacking and rehiring of the entire Supreme Court by President Jayewardene in 1978 and again in 1983, and the singular impeachment of a Chief Justice by President Mahinda Rajapaksa in 2013. Seen against the backdrop of these blatant affronts, the current initiative to extend the retirement age of the Chief Justice and other judges could be seen as an unwelcome award. As for the attendant politics, there was hardly a whimper about the past affronts while there is a chorus of protests about the proposed award.