By M. M. Janapriya –

I was introduced to the bits and bobs of Sri Lanka’s legal system at a very tender age when other children were just learning to hold a cricket bat or throw a ball at the batsman. My father was a constant litigant (cf. constant gardener) who had unstinted faith in, and undwindling respect for, the legal system. He had earned a good living in the Mediterranean Las Palmas island in the 1920s and 30s, and as a result owned quite a few extents of land and houses, once I counted up to sixteen. “More land, more trouble; less land, less trouble; no land, no trouble,” they say. Giving life to this statement, my father’s favourite pastime was attending courts.

Unlike my father, my mother was an English-educated schoolteacher with strong family connections to higher social echelons. She hobnobbed with rich, famous, welleducated Colombo relatives and served as a bridge between them and the more modest local family. She must have known a bit of internal politics to be cynical of my father’s boundless faith, especially in the face of losing many a case.

My father went looking for justice for most of his 102 year life. Occasionally he was triumphant, and those moments brought him boundless joy. He lost a two-acre land he had purchased 26 years earlier to thugs who plundered it off him, after a 62year historic legal battle. Yet till his dying day he never doubted the integrity of the judiciary or the unadulterated nature of the legal system. Was he right, or was he yet another gullible litigant?

The following analysis may hold some answers.   

The Big Question

Every constitution promises an independent judiciary. But if the people who run it admit to political calculations, is independence science, a fact- or fiction, an ideal we tell ourselves?

A Classic Story from England

This refers to British Prime Minister Boris Johnson proroguing Parliament in 2019 to avoid scrutiny of his Brexit deal. I watched this unfold live on British TV. Johnson could not wait until Queen Elizabeth II completed her holiday in Scotland. He drove to Balmoral Castle to brief the Queen on his reasons for proroguing. The story went that he lied to her too.

Lower courts, the Outer House of the Court of Session, the Inner House, Scottish courts, and the Divisional Court maintained that the government’s action was not judiciable. (Weighing in favour of Boris Johnson.)

Gina Miller, Human Rights activist, took it higher.

In September 2019, 11 UK Supreme Court justices unanimously ruled Boris Johnson’s prorogation unlawful. Within 24 hours, Parliament reconvened.

That was science. The law constrained power. It showed that with strong institutions, judges can and do stand up to the executive.

Even so, how did the lower courts get it so terribly wrong? Were they in fiction mode?

But BASL says the judiciary is independent and must remain so. They are honourable people, and they know it well.

The US Story, Bush v Gore (2000)

Bush Junior, eldest son of the powerful Bush family, and Al Gore, Democrat Vice President under Bill Clinton, ran for the most powerful position in the world in 2000. Gore won the popular vote; Florida’s results were awaited.

The US Supreme Court stalled the statewide recount ordered by the Florida Supreme Court (due to the staggering number of number of undervotes) and awarded victory to Bush by 537 votes. Jeb Bush, the candidate’s younger brother, was Governor of Florida, well known for a swelling felon register disproportionately affecting Black voters. Only 20% of Florida’s population was Black, but over 50% of its prison population was.

Scientific analysis by the local Supreme Court was annulled arbitrarily and the recount stalled. Why? The only possible result would clearly have been against Bush.

Judicial independence sneaks into the fiction area.

But BASL says the judiciary is independent and must remain so. They are honourable people, and they know all about it.

Poland’s Judicial Reforms (2017)

The Law and Justice Party, an extreme rightwing party, came to power in 2015 promising to clean up the judicial system. Their reforms left the legal system almost in ruins, with even appointments to the Constitutional Council becoming political. Ten years on, the country is still struggling to shake politics off the legal system.

But BASL says the judiciary is independent and must remain so. They are honourable people, and they know all about it.

India’s NJAC Debate

A mysterious fire erupted in the official residence of a High Court judge in Delhi in March 2025. During firefighting, a hoard of partially burnt currency notes was found in a storeroom. This led to the judge’s transfer and renewed discussion about the need for an independent judicial appointments commission. India is a country where corruption is rampant, notwithstanding its status as the world’s fifthlargest economy.

There had been an attempt in 2014 to introduce constitutional amendments establishing a wellrepresented National Judicial Appointments Commission (NJAC) to make appointments transparent and independent. Ironically, the staunchest opposition came from the legal profession itself,  mainly the judiciary.

The Supreme Court of India struck down the NJAC in Supreme Court AdvocatesonRecord Association v. Union of India. A fivejudge bench delivered a 4:1 verdict declaring both the 99th Amendment and the NJAC Act unconstitutional.

How can judges who have already shown disapproval of the Commission sit and adjudicate on it? Running with the hare and hunting with the hound? Science or fiction? Science has long left through the front door.

But BASL says the judiciary is independent and must remain so. They are honourable people, and they know all about it.

Pakistan’s Position

The 27th Amendment to Pakistan’s Constitution gives the executive and legislature an edge over the judiciary, undermining the balance of power in a constitutional democracy. It also undermines the 18th Amendment (2010), which aimed to depoliticise the judiciary by establishing the Judicial Commission of Pakistan (JCP). The 27th Amendment makes it redundant.

Rest of the Developed World’s Position

In Australia, New Zealand, the UK, and most of Western Europe, judges are appointed by the Executive which is drawn from Parliament. Independence is not about who signs the warrant. It is about whether that judge, once appointed, can rule against the same government without fear of being sacked tomorrow.

Let us state the obvious: initial appointment is a government decision in every democracy. The Prime Minister and Cabinet recommend the name. The difference between systems is not who pulls the trigger on day one, but whether the government can pull the trigger again on day 1000 to remove that judge. In Australia, NZ, and Western Europe, it cannot.

Even with these safeguards, there have been decisions that seemed to favour the government that appointed the judges. Three examples from Australia:

Cole v Whitfield (1988) Upheld federal trade laws. Critics said it gave too much power to the Commonwealth over the States; a governmentfriendly outcome.

AlKateb v Godwin (2004) A 4:3 decision upholding indefinite immigration detention. The government won. Later laws changed it. The dissent called it out strongly.

Plaintiff S157/2002 v Commonwealth (2003) Government won on limiting judicial review of migration decisions. Parliament later wound parts of it back.

All of these show that no democracy has a 100% firewalled judiciary. Appointment, promotion, and postretirement roles always create pressure points.

But BASL says the judiciary is independent and must remain so. They are honourable people, and they kn ow all about it.

Sri Lanka Setting

I am not going to dig deep in our own backyard. However, those of us old enough, with good memory, will recall events showing that we qualify to join the world bandwagon of quasitotal judicial independence.

Anyone wanting detail could read An Unfinished Struggle for Independence of the Judiciary by Victor Ivan (2002). The book carried scathing accusations against some sitting judges, often with documents to substantiate them. The sitting Chief Justice was indicted heavily but never sued for defamation. Instead, he filed contempt of court action. The case dragged on for years and died a natural death. Ivan was never sentenced; none of the allegations were inquired into. Ivan died recently of natural causes and so, it seems, did all the damning indictments.

There was no public discourse which certainly would have been the case in fivestar democracies.

This is a good opportunity to reactivate debate in Sri Lanka on whether the commonlaw offence of contempt of court, the legal thumbscrew encompassing a gamut of vague offences, should be abolished. England did it in 2013. Why shouldn’t we?

But BASL says the judiciary is independent and must remain so. They are honourable people, and they know all about it.

My View on the Current Saga

Sri Lanka is slowly but surely extricating herself from the rubble of a collapsed economy, neartotal anarchy, and a situation where even schoolbags were searched for drugs. A judicial system that was virtually on its knees under the autocratic Rajapaksa regime has now received a free hand and is doing good work.

People who previously managed national coffers as if they owned them are now being netted one by one. The Easter Sunday bombings that killed over 250 innocent people, once swept under the carpet are now being properly investigated, and the culprits will soon be brought to justice. We, the nation, seem to be playing a winning game. In such a situation, one does not need to change horses en route because stability matters more than theoretical purity.

If the Constitution provides room and reason, extending the retirement age of sitting judges should not be a problem  for me, not for anyone else either and most certainly not for the Bar Association of Sri Lanka. It simply allows the present momentum to reach its nature set destination.