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 showed that the debate over the Twenty-Second Amendment was tactical on both sides. Part 2 argued that the 1978 Constitution, read with its Preamble, is a charter of rule by law rather than rule of law, and that the Amendment is continuous with that order rather than a departure from it. This final part maps how the operative Constitution allocates power, examines the judiciary’s own part in its subordination, and sets out a reform agenda.

The operative Constitution: executive dominance, legislative finality, judicial subordination

The operative provisions of the 1978 Constitution distribute power in a clear order. The executive holds the widest discretion, the legislature’s enactments are final, and the judiciary works within limits set by both. Table 2 maps the principal provisions and their effect.

Table 2. Allocation of power under the operative provisions of the 1978 Constitution

Branch	Provision	What it provides	Effect on the rule of law
Executive	Article 35	Presidential immunity from suit	Head of the executive shielded; rights challenges lie only against the Attorney General
Executive	Article 107(1)	President appoints superior court judges	Appointments depend on the President and a Constitutional Council repeatedly altered by amendment
Legislature	Article 80(3)	No court may question an enacted law	Unconstitutional statutes become unchallengeable
Legislature	Articles 120–121	Review of Bills only, within 14 days	Short window; committee-stage changes can escape review
Legislature	Article 16(1)	Existing law valid despite rights inconsistency	Pre-1978 law immune from rights challenge
Legislature	Article 107(2)–(3)	Judges removed on an address of Parliament	Parliament controls removal, as in 2013
Judiciary	Article 4(c)	Parliament exercises judicial power through courts	Judicial power framed as Parliament’s
Judiciary	Article 126	One-month limit; leave to proceed	Narrow, filtered access to rights jurisdiction
Judiciary	Article 29	Directive Principles unenforceable	Socio-economic needs outside judicial protection

Note: Provisions are grouped by the branch whose position they chiefly secure (executive, legislature) or constrain (judiciary).

The pattern is consistent. Each branch is positioned relative to the others, and the judiciary is positioned last: it cannot review what Parliament enacts and has limited reach over what the executive does. Its members are appointed by the executive and removable by Parliament.

The 2013 impeachment demonstrates how this works in practice. The Supreme Court held that the inquiry into Chief Justice Bandaranayake needed a procedure established by law rather than by Standing Orders. Parliament proceeded regardless, and the Chief Justice was removed. A constitution under which the apex court’s own ruling on its own head could be disregarded is not one in which the judiciary is a co-ordinate branch.

None of these provisions is touched by the Twenty-Second Amendment. A judge retiring at 67 operates under exactly the same constraints as one retiring at 65.

The judiciary’s part in its own subordination

The constitutional text places the judiciary in a subordinate position, but it does not fully explain the courts’ deference. In practice the Supreme Court has often accepted a more limited role than the text compels: refusing leave without reasons, treating policy questions as beyond review, and reading the non-justiciability of the Directive Principles broadly. Its subordination is therefore partly imposed by the Constitution and partly the product of its own interpretive choices.

Unreasoned gatekeeping

Article 126 gives the Supreme Court sole and exclusive jurisdiction over the infringement of fundamental rights by executive or administrative action. An aggrieved person must petition the Court within one month of the alleged infringement. The petition may proceed only if the Court first grants leave to proceed, a decision taken by at least two judges at a preliminary hearing. In practice, leave is commonly refused by a brief order that states no reasons. Because no other court has jurisdiction, and no appeal lies from the Supreme Court, that refusal ends the matter.

The consequence is that a citizen can be denied access to the only forum able to vindicate a fundamental right, without being told why and without any further recourse. That outcome is difficult to reconcile with the rule of law on any of the conceptions discussed in Part 2, each of which requires access to courts and reasoned adjudication. It is also in tension with Sri Lanka’s obligations under the ICCPR: Article 14 guarantees a fair hearing, and Article 2(3) guarantees an effective remedy for violations of protected rights. Nothing in Article 126 or elsewhere in the Constitution prevents the Court from giving reasons when it refuses leave. The practice of unreasoned refusal is therefore the Court’s own choice, not a constitutional requirement.

This is precisely the gatekeeping power that critics of the Amendment feared a retained, government-friendly bench might use against fundamental rights and public interest litigants. Yet the risk does not depend on which judges sit, or on the age at which they retire. It arises from the power itself: any bench, at any retirement age, may refuse leave without explanation. A court committed to the rule of law would constrain that power through its own rules, by requiring short written reasons whenever leave is refused.

Deference and non-justiciability

In public interest litigation the Supreme Court has frequently deferred to the executive. This deference has taken three main forms. First, the Court has characterised challenged decisions as matters of policy and declined to review them. Second, it has refused leave to proceed at the threshold, so that the merits are never examined. Third, it has read Article 29, which makes the Directive Principles unenforceable, as excluding socio-economic claims from its consideration altogether. None of these outcomes is dictated by the constitutional text. Each reflects an interpretive choice about the scope of the Court’s own role.

The Court’s own jurisprudence shows that it can choose otherwise. Three decisions illustrate the point:

Implying rights the text omits. Chapter III contains no express right to life. In Sriyani Silva v Iddamalgoda [2003] 2 Sri LR 63, a case arising from a death in police custody, the Court nonetheless recognised an implied right to life, reading it from Article 13(4).

Giving the Directive Principles interpretive force. In Bulankulama v Secretary, Ministry of Industrial Development [2000] 3 Sri LR 243, the Eppawala case, the Court restrained a proposed agreement for large-scale phosphate mining by a foreign company. It found violations of Articles 12 and 14, and in doing so drew on the Directive Principles concerning the environment and on the public trust doctrine.

Treating executive power as a public trust. In Premachandra v Jayawickrema [1994] 2 Sri LR 90, concerning the appointment of provincial Chief Ministers, the Court held that discretionary powers are held in trust for the public and are subject to judicial review.

Each of these decisions required the Court to look beyond the narrowest reading of the text. They show that the tools needed to protect rights more robustly already exist within Sri Lankan constitutional doctrine. What has varied is the Court’s willingness to use them.

Selective expansiveness

The pattern of deference is not uniform. As noted in Part 2, in its 2022 special determination In re Inland Revenue (Amendment) Bill the Court read Article 3, the provision vesting sovereignty in the people, broadly enough to hold that any change to the tenure of incumbent judges, direct or indirect, requires approval at a referendum. That is an expansive reading. It treats the people’s sovereignty as directly engaged by the conditions under which judges hold office.

The Court has not extended the same reasoning to the citizen’s side of the relationship. It has not held that popular sovereignty requires reasons when leave to proceed is refused, wider access to its fundamental rights jurisdiction, or judicial protection of basic socio-economic needs. The contrast suggests that the Court’s interpretive boldness has been greatest where its own institutional position is at stake, and most restrained where the claims of ordinary litigants are concerned.

The interpretive resources the Court already holds

Without any amendment, the Court could resolve the contradictions identified in Part 2 in favour of the rights-holder. It could:

give reasons whenever leave to proceed is refused;

treat the Directive Principles as binding aids to interpreting Chapter III, as Eppawala began to do;

read equality under Article 12 to reach arbitrary state failure to meet basic socio-economic needs;

read Articles 16(1) and 80(3) narrowly, in light of the Preamble’s declaration of the Constitution as the supreme law and Article 4(d)’s duty on every organ of government to advance fundamental rights;

apply Article 3 to the citizen’s access to judicial power with the vigour it applied in 2022 to judicial tenure.

It is here that the Preamble finds its proper role. Contrary to the implication of Welikala’s thesis, the Preamble cannot by itself transform the 1978 order into a rule-of-law constitution, because it yields wherever the operative text conflicts with it. Its value lies elsewhere: as an interpretive guide for a court prepared to read ambiguous or restrictive provisions in the light of the commitments the Preamble declares. Used in that way, it could narrow the gap between the Constitution’s stated values and its operative effect. Whether the Supreme Court chooses to use it so is a more searching test of judicial independence than any question about the age at which judges retire.

Toward a rule-of-law constitution

A reform agenda grounded in the rule of law would start from the citizen’s position rather than the judge’s. Its first question would be whether a person can reach a court, obtain a reasoned decision, and hold the executive and legislature to the Constitution. Judicial tenure would be one item on that agenda, not its centre. The ten measures below are grouped by the deficit each addresses, and each is designed to operate in the same way whichever party governs.

Reasons for refusing leave (access to the courts). At present the Supreme Court may refuse leave to proceed in a fundamental rights case without giving reasons. Article 126 or the Supreme Court Rules should require short written reasons for every refusal.

Wider access to rights jurisdiction (access to the courts). At present only the Supreme Court can hear fundamental rights applications, and only if filed within one month. Fundamental rights jurisdiction should be extended to the High Courts, and the one-month time bar relaxed for vulnerable applicants.

Post-enactment review (review of legislation). At present Article 80(3) bars any challenge to a law once enacted. It should be repealed so that enacted laws can be challenged, at least for inconsistency with the fundamental rights in Chapter III.

No saving of inconsistent laws (review of legislation). At present Article 16(1) keeps in force all pre-1978 laws even where they violate fundamental rights. It should be repealed, with a fixed transition period for Parliament to bring existing law into line.

Closing the committee-stage gap (review of legislation). At present a Bill can be substantially changed at committee stage after the period for constitutional challenge has closed. Any substantive committee-stage amendment should be referred to the Supreme Court before enactment.

Justiciable socio-economic rights (scope of rights). At present rights to health, education, housing and an adequate standard of living appear only in the unenforceable Directive Principles. They should be added to Chapter III and made enforceable on a reasonableness standard.

Judicial power belonging to the courts (judicial structure). At present Article 4(c) provides that judicial power is exercised by Parliament through the courts. It should be revised so that the courts exercise judicial power in their own right.

Secure and impersonal tenure (judicial structure). At present retirement ages differ between courts and can be changed for sitting judges, and removal is controlled by Parliament. A single retirement age should apply to all judges, prospectively only, and removal should follow an inquiry by a judicial body established by statute.

Transparent appointments (judicial structure). At present superior court vacancies can remain unfilled for months, with no published criteria. Vacancies should be filled within fixed timelines against published criteria, with candidates drawn from the private Bar and academia as well as the judicial service.

A people’s constitution (constitution-making). At present constitutions are drafted and adopted by the governing majority. Any new constitution should be prepared through a process independent of that majority and approved by the people at a referendum, as Edrisinha urges.

Not all of these measures require constitutional amendment. The first can be achieved by the Supreme Court itself, through its own rules and practice, without waiting for Parliament. The sixth can be partly achieved through the interpretive approaches discussed above, by reading Chapter III in the light of the Directive Principles and the Preamble. The remaining measures require amendment, ideally as part of the new constitution the present Government was elected to deliver.

Conclusion

The Twenty-Second Amendment debate was a contest over a bench, not over a constitution. Supporters wanted a trusted court to complete accountability cases. Opponents wanted to prevent what they saw as a reward to particular judges. Both positions were shaped by expected outcomes in particular litigation.

The debate’s most sophisticated contribution, Welikala’s preambular thesis, treated judicial independence as an inceptional value of the 1978 order that the Amendment betrays. This series has argued that the premise is mistaken. Read with its operative text, the 1978 Constitution and its Preamble form a narrative of rule by law. The executive is dominant, legislation is final, and the judiciary is placed below both, while the vocabulary of rights and judicial independence supplies legitimacy.

The rule of law asks a different question from the one the debate asked. It asks whether any citizen can reach a court, receive a reasoned answer, and hold the legislature and the executive to the Constitution. On that test Sri Lanka falls short at a retirement age of 65 and at 67 alike. Judicial independence, if it belongs to the people as Welikala rightly says, must mean an accessible and reasoning court, not only secure tenure for judges. A debate that takes that seriously has yet to begin.

*Firdous MHM is an academic specialising in constitutional law and the relationship between law and the economy, and a Solicitor in Australia. His research focuses on the challenges of constitutional development in developing countries, frameworks for a people-centred constitution, the influence of populism on constitutionalism, and the devolution of power. He holds a Master of Laws (LLM) from the University of Colombo and an MSc in International Management from the University of Liverpool. His research includes a critical analysis of the constitutional and policy framework governing the right of access to higher education in Sri Lanka, and he has written commentary on Sri Lankan constitutional reform in Colombo Telegraph since 2022. The views expressed in this series are the author’s own. Correspondence: mhmfirdous@hotmail.com

Sources for Part 3

Bulankulama v Secretary, Ministry of Industrial Development [2000] 3 Sri LR 243 (the Eppawala case)

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

Pathirathne v Abeywardena, SC FR 35/2024 (12 December 2024)

Premachandra v Jayawickrema [1994] 2 Sri LR 90

Sriyani Silva v Iddamalgoda [2003] 2 Sri LR 63

Constitution of the Democratic Socialist Republic of Sri Lanka (1978), Preamble and Articles 3, 4, 16, 29, 35, 80, 107, 120–121 and 126

International Covenant on Civil and Political Rights (1966), Articles 2(3) and 14

Bangalore Principles of Judicial Conduct (2002)

Commonwealth (Latimer House) Principles on the Three Branches of Government (2003)

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

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