By Jehan Perera –

Sri Lanka is witnessing the dismantling of the culture of impunity that dominated public life for decades. This is happening through the courts, police investigations and legal process. It is not an easy task and requires strong leadership as it is generating strong resistance. The ongoing revelations about the nexus between politicians, including those at the highest levels, and criminal networks show that the government’s electoral mandate with regard to corruption and crime is now being translated into action through the legal system. The vote of the people at the last national elections was for a corruption free country and an end to the climate of impunity that had prevailed for decades. They voted for a system change that would replace impunity with accountability under the rule of law. They expected those who had looted the country and brought it to the point of bankruptcy to be held accountable through the due process of law.

The cases that are being investigated by the police, in tandem with the Attorney General’s Department, and adjudicated by the judiciary are based on hard evidence. Much of the evidence that is now receiving publicity had been available several years ago and had even entered the legal process. In the past those cases failed to reach fruition. Investigations lost momentum, prosecutions failed to marshal the available evidence and many cases were dismissed, some on technical grounds. Between 2019 and 2024, a total of 102 cases were withdrawn from the courts by the government authorities. The public knew, or strongly believed, that corruption and serious crimes had taken place. The inability to establish wrongdoing before a court of law and hold those responsible accountable created a climate in which political power appeared to provide protection from legal accountability.

A countrywide study titled Factors Guiding Voter Preference in Elections in Sri Lanka was commissioned by the National Peace Council prior to the 2024 elections under the European Union funded project Active Citizens for Elections and Democracy and conducted by researchers Dr Mahesh Senanayake and Ms Crishni Silva of the University of Colombo. It found overwhelming public support for accountability and good governance. While 93 percent of respondents identified resolving the economic crisis as their foremost electoral concern, an equally striking 83 percent said they prioritised candidates committed to fighting corruption. The mandate given to the government can, therefore, be interpreted to mean to restore integrity to public life and end the long standing culture of impunity.

Different Approach

Today, it can be seen that the police, the Commission to Investigate Allegations of Bribery or Corruption, the Attorney General’s Department and the judiciary are approaching matters of impunity in respect of corruption and crime in a manner that is markedly different from the past. Several persons who formerly occupied high office have now been subjected to due legal process and, in a number of cases, convicted after judicial scrutiny at different levels of the court system. This is an important difference from earlier years when cases involving politically prominent persons frequently failed to proceed or collapsed before reaching their conclusion. The strength of the present accountability process lies not only in the convictions that have been secured but also in the growing public confidence that no one is above the law. It is in this context that reports of a government proposal to extend by two years the retirement age of judges of the Supreme Court and the Court of Appeal have generated support from those who wish to see the present accountability process continue and opposition from those who see it as an attempt to influence the judiciary.

Many countries have increased judicial retirement ages in recognition of longer life expectancy and the value of retaining experienced judges. This has not only been limited to the judiciary but also the academia and the public service. However, the controversy in Sri Lanka is due to the context and as the proposal for an extension of the period of service of judges of the superior courts comes at a time when the courts are hearing politically significant corruption and criminal cases. The Bar Association of Sri Lanka has taken the lead in questioning the proposed constitutional amendment. The BASL has stated that it “notes with grave concern” reports that the government is considering increasing the retirement age of judges of the Supreme Court and the Court of Appeal. It has warned that extending the tenure of sitting judges at this point of time is likely to be viewed by the public as an attempt to interfere with the independence of the judiciary.

The main issue raised by the BASL is therefore one of preserving public confidence in the administration of justice. A discussion organised by the BASL also highlighted that this issue has implications beyond Sri Lanka. Representatives of the Commonwealth Lawyers Association and LAWASIA acknowledged that many countries have increased the retirement age of judges in recognition of greater life expectancy and the value of retaining experienced judges. Their concern was not with increasing the retirement age itself but with changing the tenure of sitting judges while politically significant corruption cases are before the courts. In such circumstances, even well intentioned reform could create a public perception that the judiciary is being influenced to take forward the government’s mandate in a partisan manner.

Maintain Confidence

The challenge before the government is to preserve two equally important objectives. The first is to continue implementing the people’s mandate to hold the corrupt and those responsible for grave crimes accountable before the law. The second is to ensure that nothing is done which could diminish public confidence in the independence and impartiality of the judiciary that is entrusted with carrying out that responsibility. The strength of the present accountability process lies in the confidence it has generated among the public that investigations, prosecutions and judicial decisions are being made according to law as in the convictions that have been secured. Sri Lanka has come a long way from the days when politically sensitive cases rarely reached a successful conclusion. It would be unfortunate if doubts regarding the independence of the judiciary were to overshadow what has otherwise been a significant institutional achievement.

In the face of the concerns expressed by the BASL, opposition political parties and international legal organisations, it would be prudent for the government to widen the discussion on the proposed amendment. If there is a compelling case to increase the retirement age of judges of the superior courts, that case should be placed before the public and parliament and debated openly. Such a constitutional amendment should not rest solely on the government’s parliamentary majority, even if it has the numbers to secure its passage. Simply utilizing the numbers that the government on its own to make changes to the constitution will not increase its legitimacy or credibility. Those values will be strengthened if they were preceded by public consultation and supported across party lines in Parliament. Bipartisan political support can be expected from those in the opposition, of whom there are many, who have shown an inclination to practice responsible politics in the national interest.

The people voted not only to change a government but to change a system. They expected those who abused public trust to be held accountable through institutions that commanded public confidence. That expectation is beginning to be fulfilled. It should not be placed at risk by constitutional change that lacks broad public acceptance. If the government believes there is a compelling case to extend the retirement age of the judges of the superior courts, it should first make that case to the people and seek bipartisan support in Parliament with those in the opposition who are also sincere about anti-corruption and good governance. The challenge is to protect the independence of the judiciary while ensuring that no one is above the law. Overcoming this challenge is the surest way to make Sri Lanka’s transition from a culture of impunity to one of accountability a lasting one.