By Firdous MHM –

Series: Rule by Law in Constitutional Clothing: Judicial Independence, the 1978 Preamble and the 22nd Amendment Debate in Sri Lanka

Previously: Part 1 argued that both sides of the debate over the Twenty-Second Amendment, which extended the retirement ages of Sri Lanka’s superior court judges by two years, argued tactically. Each tracked the expected outcome of particular litigation rather than a principled account of the rule of law. This part turns to the most sophisticated defence of judicial independence offered in that debate.

Welikala’s preambular thesis

Welikala’s presentation at the CPA Seminar is the most theoretically developed defence of judicial independence in the debate. Fairness requires that his argument be set out in its strongest form before it is examined critically.

His central claim is that judicial independence is not one principle among many but an “inceptional value” of Sri Lankan constitutional modernity. It appears, he argues, at each moment of constitutional transition: the imperial, the dominion, the republican and the present order. Four propositions support the claim.

Continuity. Judicial independence descends from the seventeenth-century English cases, Prohibitions del Roy, Dr Bonham’s Case, Proclamations and Bushell’s Case, and Entick v Carrington (1765). It entered Sri Lanka through the Charter of Justice of 1801. The Supreme Court is “the oldest continuously functioning branch of the Sri Lankan state”, enduring through the ruptures of 1948, 1972 and 1978.

Restoration in 1978. The 1972 Constitution weakened constitutional supremacy, rights protection and judicial independence. The 1978 Constitution, he argues, sought to restore all three.

The Preamble as the “soul of the law”. Drawing on Plato, Coke and Blackstone, Welikala treats preambles as the “justificatory grammar” of a constitutional order. The 1978 Preamble is unusual in expressly naming “the independence of the judiciary” as part of the “intangible heritage” of the people. In Liav Orgad’s typology it belongs to the Commonwealth family of interpretive preambles, guiding the reading of the operative text without overriding it.

Sovereignty. Articles 3 and 4 locate judicial power in the sovereign people, exercised through the courts. Judicial independence therefore protects “not judges as individuals but the sovereignty of the people”.

From these propositions Welikala concludes that the Twenty-Second Amendment, which he characterises as “constitutional adventurism”, threatens a foundational value of the Republic. He warns that accountability pursued by weakening institutions loses its legitimacy.

The warning is sound, and parts of the argument are valuable. The difficulty lies in the premise that the 1978 Constitution, read through its Preamble, is a rule-of-law constitution whose commitment to judicial independence is being betrayed. The rest of this part argues that the premise does not hold.

Rule by law in constitutional clothing

The argument here is that the 1978 Preamble does not anchor a rule-of-law order. Read with the operative text, it supplies a rule-centric narrative of legality that legitimates concentrated power while placing the judiciary in a dependent position.

Rule of law and rule by law

The distinction is well established. Rule of law in its substantive sense requires that public power be constrained by law, that law be applied by independent courts accessible to all, and that law respect fundamental rights (Bingham 2010). Rule by law uses law as an instrument of government: power is exercised through legal forms, but the forms impose no effective limit on the power (Tamanaha 2004). Even Raz’s formal conception, which deliberately excludes substantive rights, requires access to courts and judicial review of official action (Raz 1977).

A constitution may use the full vocabulary of the first while instituting the second. Comparative scholarship has described this as the “sham constitution” (Law and Versteeg 2013), “abusive constitutionalism” (Landau 2013) and “autocratic legalism” (Scheppele 2018). The question is not what the Preamble says but what work it does.

The Preamble’s own source of authority

Welikala reads the Preamble as expressing the will of the sovereign people. Its text, however, tells a narrower story. It grounds the Constitution in the mandate given at the general election of 21 July 1977, by which the people are said to have entrusted and empowered their elected representatives to draft, adopt and operate a new republican constitution.

There was no separately elected constituent assembly: the existing National State Assembly elected under the 1972 Constitution enacted the new Constitution, and the text was not submitted to a referendum. The executive presidency had already been introduced through the Second Amendment to the 1972 Constitution, certified in October 1977 but brought into operation on 4 February 1978. J. R. Jayewardene assumed the presidency that day, approximately seven months before the 1978 Constitution came into operation on 7 September. The Preamble therefore constructs a chain of constituent authority running from the people’s electoral mandate through their elected representatives, effectively treating the overwhelming parliamentary victory of 1977 as the authorization for the constituent transformation.

Edrisinha made the general point at the same Seminar: Sri Lankan governments have “got so used to drafting and adopting constitutions that suit their interest”, in 1972, in 1978 and now. The Preamble is not an exception to that pattern. It is the pattern’s founding document.

Declared values without remedial force

Welikala himself accepts that, in the Commonwealth interpretive tradition, a preamble may guide the interpretation of a constitution but cannot override its operative provisions where the two directly conflict. That concession is decisive for the present argument. It means that wherever the operative text restricts rights or excludes judicial review, the Preamble must give way, however emphatic its language.

The 1978 Constitution contains several such restrictions, and each is central rather than incidental:

Article 16(1) preserves all existing written and unwritten law, even where it is inconsistent with the fundamental rights chapter.

Article 80(3) prohibits any court from questioning the validity of legislation once enacted.

Article 29 declares the Directive Principles of State Policy unenforceable in any court.

Article 35 confers immunity from suit on the President, an immunity later narrowed but never abolished.

The result is a document whose Preamble promises “FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY”, while its operative body withholds the remedies needed to make those promises enforceable. Such a document resembles what Law and Versteeg term a “sham constitution” more closely than the constitutional creed Welikala describes.

In this setting the Preamble’s principal function is legitimation rather than limitation. It enables the constitutional order to claim the moral authority of fundamental rights and judicial independence, while the operative provisions ensure that neither can be effectively invoked against the executive or the legislature. The result is rule by law, presented in the language of the rule of law.

The founding contradiction

The 1978 Constitution’s treatment of the judiciary at its birth contradicts its Preamble. Jayawickrama recounted at the same Seminar how the transitional provisions were used to select eleven judges for the new superior courts “without regard to seniority, experience or age”, excluding eight. Colvin R. de Silva called this the “witches’ cauldron”. The same document that names judicial independence as an intangible heritage began by reconstituting the bench at the executive’s discretion.

The subsequent record is consistent with that beginning. Jayawickrama’s own list of Chief Justices installed by executive choice in 1977, 1988, 1999 and 2013 illustrates it. So do the impeachment of Chief Justice Shirani Bandaranayake in 2013 by a parliamentary select committee, the removal of term limits and of the Constitutional Council by the Eighteenth Amendment in 2010, and the re-concentration of executive power by the Twentieth Amendment in 2020. None of these was prevented by the Preamble, and none could have been, because the Preamble has no operative force against the text.

Continuity of what?

Welikala’s continuity thesis traces judicial independence from the Charter of Justice of 1801. But the colonial Supreme Court was an institution of imperial rule. For much of the colonial period its judges held office at the pleasure of the Crown, and the court applied law made by an unelected colonial executive. Jayawickrama notes that the extension power in the 1947 Constitution was likely inserted to protect colonial judicial officers.

Institutional continuity is not the same as continuity of independence. What has endured since 1801 may as plausibly be a court that is formally separate but functionally aligned with the governing authority of the day. That reading fits the post-1978 record better than the narrative of an inceptional value betrayed only by occasional “adventurism”.

The text of Article 4(c)

Welikala treats Article 4(c) as a vestige of the “High Court of Parliament” in which judicial power has been re-rooted in popular sovereignty. The text supports a less benign reading. It provides that the judicial power of the people shall be exercised by Parliament through courts and other tribunals, except in matters of parliamentary privilege, which Parliament exercises directly.

On its face, judicial power is Parliament’s power, exercised through the courts as its channel. Read with Article 80(3), which places Parliament’s enactments beyond judicial question, the structure is hierarchical, not co-ordinate. The judiciary is positioned as Parliament’s instrument for adjudication, not as a check upon it.

Sovereignty cuts both ways

Welikala’s strongest move is to say that judicial independence protects the sovereignty of the people. Accepted fully, that argument indicts the 1978 order rather than defending it. If the people’s sovereignty includes an independent judiciary, it must include a judiciary able to review the laws made in their name and to enforce their basic needs.

The 1978 Constitution withholds both. Article 80(3) bars review of enacted legislation, and Article 29 excludes socio-economic needs from judicial enforcement. Yet Welikala invokes popular sovereignty only to defend judicial tenure against a two-year extension. He does not turn it against the provisions that deny the sovereign people effective access to judicial power. The principle is thus applied selectively, and in this respect it mirrors the Supreme Court’s own reasoning. In its special determination In re Inland Revenue (Amendment) Bill (SC SD 64–71/2022), the Court held that any constitutional amendment to the retirement age or period of office of incumbent judges, whether direct or indirect, impinges on judicial independence and violates Article 3, and therefore requires approval at a referendum (as quoted in the CPA petition, SC SD 50/2026). The Court read popular sovereignty expansively where judicial tenure was at stake. It has not applied Article 3 with comparable vigour to widen citizens’ access to the courts, for example by requiring reasons when leave to proceed is refused under Article 126.

A narrative authored by lawyers

Both of Sri Lanka’s republican constitutions were designed by lawyer-politicians acting through the governing parliamentary majority rather than through an independent constituent body. The 1972 Constitution was drafted under the direction of Colvin R. de Silva, Minister of Constitutional Affairs and a leading advocate, and adopted by a Constituent Assembly composed of the sitting members of the House of Representatives. The 1978 Constitution was the project of J. R. Jayewardene, also a lawyer by training. It was prepared by a parliamentary Select Committee in which his United National Party held a commanding majority, and it was promulgated on 7 September 1978, after he had already assumed the executive presidency created by the Second Amendment to the 1972 Constitution.

Whatever the intentions of individual framers, the design effect is consistent. The constitutional narrative, articulated in the Preamble and sustained since by the legal profession’s dominance of public constitutional interpretation, secures the standing of the bench and the Bar. The operative text, meanwhile, secures the supremacy of the executive and the finality of legislation.

This helps explain a feature of the 2026 debate that is otherwise puzzling: the scale and focus of the legal profession’s mobilisation. Over four months the BASL wrote to the President (25 May), convened a public forum with international speakers (4 July), passed seven resolutions unanimously at a special general meeting (29 July), met the President (12 August) and challenged the Bill in the Supreme Court. The Judicial Service Association, regional Bar associations and the nineteen signatories of the Lawyers’ Collective added their own statements.

Yet none of these interventions, so far as the published record examined here shows, demanded reasons for refusals of leave to proceed, the repeal of Article 80(3), or the justiciability of socio-economic rights. The profession mobilised over two years of judicial tenure, a matter affecting judges and the Bar directly. It did not mobilise over the structural barriers that fall most heavily on litigants.

What survives of the thesis

This critique does not render the Preamble meaningless. Its commitments to fundamental rights and judicial independence remain available as interpretive resources to any court willing to invoke them, and Part 3 of this series argues that the Supreme Court should do so. Welikala is also right that institutions built over generations can be dismantled far more quickly than they can be restored.

The objection is narrower and more fundamental. It is directed at two linked claims: that the 1978 order embodies the rule of law, and that the Twenty-Second Amendment represents a departure from it. On the analysis above, the Amendment is better understood as continuous with that order. It is the latest exercise of a power to reshape the judiciary that the executive and the legislature have held, and repeatedly used, since 1978.

Next in this series — Part 3: What a Retirement Age Cannot Fix. If the 1978 order is one of rule by law, how exactly does the operative Constitution allocate power, and what part has the judiciary played in its own subordination? Part 3 maps the four structural deficits that no change in retirement age touches and sets out a reform agenda.

Sources for Part 2

Bingham, T. (2010) The Rule of Law. London: Allen Lane.

Landau, D. (2013) ‘Abusive Constitutionalism’, UC Davis Law Review 47: 189.

Law, D. S. and Versteeg, M. (2013) ‘Sham Constitutions’, California Law Review 101: 863.

Orgad, L. (2010) ‘The Preamble in Constitutional Interpretation’, International Journal of Constitutional Law 8: 714.

Raz, J. (1977) ‘The Rule of Law and its Virtue’, Law Quarterly Review 93: 195.

Scheppele, K. L. (2018) ‘Autocratic Legalism’, University of Chicago Law Review 85: 545.

Tamanaha, B. Z. (2004) On the Rule of Law: History, Politics, Theory. Cambridge: Cambridge University Press.

In re Inland Revenue (Amendment) Bill, SC SD 64–71/2022

Centre for Policy Alternatives and Saravanamuttu v Attorney General, SC SD 50/2026

Constitution of the Democratic Socialist Republic of Sri Lanka (1978), Preamble and Articles 3, 4, 16, 29, 35, 80 and 126

Edrisinha, R. CPA Seminar on Judicial Independence (video)

Jayawickrama, N. CPA Seminar on Judicial Independence (video)

Welikala, A. CPA Seminar on Judicial Independence (video)