{"id":248690,"date":"2026-09-01T09:39:02","date_gmt":"2026-09-01T04:09:02","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=248690"},"modified":"2026-09-01T09:39:02","modified_gmt":"2026-09-01T04:09:02","slug":"the-bar-becomes-the-opposition-the-politics-of-manufactured-alarm","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/the-bar-becomes-the-opposition-the-politics-of-manufactured-alarm\/","title":{"rendered":"The Bar Becomes The Opposition: The Politics Of Manufactured Alarm"},"content":{"rendered":"

By Vishwamithra<\/a> –<\/strong><\/span><\/p>\n

\u201cThe quieter you become, the more you speak to the world.\u201d <\/i><\/i>~ Margaret Hale<\/p>\n

Sri Lanka\u2019s Constitution has been amended so frequently, and sometimes so carelessly, that even the numbering of its amendments has become a source of confusion. That confusion is not merely linguistic or clerical. It illustrates how constitutional reform in this country has too often been reduced to an improvised political exercise\u2014introduced to meet the needs of the moment rather than guided by a coherent vision of democratic government.\"\"<\/p>\n

The reform Bill introduced in 2022 was officially presented and publicly debated as the Twenty-Second Amendment. However, when enacted, it became the Twenty-First Amendment because an earlier proposed amendment had never become law. That 2022 legislation sought to reverse some of the excessive presidential powers restored by the Twentieth Amendment and to revive elements of the institutional framework created by the Nineteenth Amendment. It strengthened the Constitutional Council, restored a measure of independence to public institutions and attempted\u2014however imperfectly\u2014to re-establish a balance between the Executive Presidency, Parliament and the institutions responsible for democratic accountability.<\/p>\n

The measure gazetted by the government of President Anura Kumara Dissanayake in August 2026 is an entirely different constitutional proposal, notwithstanding the confusing recurrence of the title \u201cTwenty-Second Amendment.\u201d It concerns the judiciary rather than the distribution of power between the President and Parliament.<\/p>\n

The new Bill proposes to raise the retirement age of Supreme Court judges from 65 to 67 and that of Court of Appeal judges from 63 to 65. It would also increase the number of Court of Appeal judges from 19 to 24 and limit the tenure of the Chief Justice to six years. These are not matters that should be dismissed without examination. Any alteration affecting judicial tenure, succession or the composition of the superior courts deserves serious scrutiny. But scrutiny is not the same as hysteria; vigilance is not synonymous with obstruction; and constitutional responsibility should never be confused with the manufacture of political suspicion.<\/p>\n

That is precisely where the conduct of the Bar Association of Sri Lanka becomes troubling.<\/p>\n

BASL has every right\u2014and indeed a professional duty\u2014to examine proposed constitutional changes affecting the judiciary. It must defend judicial independence, alert the public to genuine dangers and insist that constitutional reforms be transparent, principled and properly debated. But that responsibility does not confer upon it the right to behave as an unelected opposition party, nor does it excuse the use of insinuation where evidence is required.<\/p>\n

The intensity of BASL\u2019s campaign against this relatively limited amendment appears strikingly disproportionate to its contents. Before the Bill was even gazetted, BASL had written to the President, organised discussions and mobilised opinion against the extension of judicial retirement ages. Its subsequent statement of 12 August continued that opposition. The public was invited to believe that adding two years to judicial tenure might imperil the independence of the entire judiciary. Yet the principle of increasing judicial retirement ages is neither novel nor inherently sinister.<\/p>\n

The United Kingdom raised the judicial retirement age from 70 to 75. Other jurisdictions have made comparable changes to retain experienced judges, respond to longer life expectancy and address shortages in judicial personnel. Even Steven Thiru, President of the Commonwealth Lawyers Association, while supporting BASL\u2019s objections to the Sri Lankan proposal, acknowledged that there was no objection in principle to increasing the mandatory retirement age of judges. The concerns he raised related principally to timing, process and its application to sitting judges\u2014not to the numerical increase itself.<\/p>\n

That distinction is crucial. Yet BASL\u2019s public posture has tended to blur it.<\/p>\n

If the objection is that the amendment would apply to judges already in office, BASL should say so precisely and propose a prospective arrangement under which the new retirement ages would apply only to judges appointed after a specified date. If the concern is that particular judges may benefit, BASL should identify the constitutional principle at stake without recklessly inviting the public to speculate about secret bargains between the Executive and the judiciary. If the problem is inadequate consultation, BASL should demand a structured consultation process and submit alternative language.<\/p>\n

Instead, the Association appears determined to cultivate the impression that the proposal is, by its very nature, an assault on judicial independence. That is too large an accusation to rest upon suspicion alone.<\/p>\n

Judicial independence is indeed threatened when governments remove inconvenient judges, manipulate appointments, disregard court orders or vary judicial tenure to reward loyalty. But extending the retirement age uniformly through a constitutional amendment is not automatically equivalent to any of those abuses. The decisive questions are whether the reform rests upon an objective policy rationale, whether it applies according to a general rule, whether the appointments process remains independent, and whether safeguards prevent benefits from being selectively bestowed or withdrawn.<\/p>\n

BASL cannot merely invoke the sacred phrase \u201cjudicial independence\u201d as though its repetition settles every constitutional dispute. Judicial independence is a constitutional principle, not a rhetorical weapon to be brandished whenever the Association disagrees with the government.<\/p>\n

There is also an uncomfortable question of institutional consistency. Sri Lanka has endured constitutional vandalism of a far more serious order. Presidential power has been expanded and contracted according to the needs of successive incumbents. Independent commissions have been weakened, restored and weakened again. Parliamentarians have crossed the floor with astonishing ease. The Constitution has repeatedly been treated as an instrument of political convenience.<\/p>\n

Against that background, BASL\u2019s extraordinary mobilization over a two-year extension of judicial retirement ages invites legitimate questions about proportion. Where was this degree of urgency during every earlier erosion of constitutional government? Has the Association always spoken with equal clarity, force and persistence when politically powerful actors threatened public institutions? Or has it, like many professional organizations, occasionally discovered its constitutional voice more readily against some governments than against others?<\/p>\n

A professional body claiming national moral authority must be judged not only by what it says, but also by when it chooses to say it and how consistently it applies its principles. Selective outrage is not constitutional guardianship. It is politics conducted beneath the robes of professional respectability.<\/p>\n

BASL should also recognize the democratic limits of its mandate. It represents members of the legal profession; it does not represent the entire electorate. Its expertise entitles it to be heard with respect, but not to claim a veto over constitutional reform. Lawyers possess specialized knowledge of law, but constitutional policy involves questions of public administration, institutional capacity, demographic change, judicial workload and democratic choice. Those questions cannot be monopolized by a professional association, however distinguished its membership may be.<\/p>\n

Expanding the Court of Appeal from 19 to 24 judges, for example, should be evaluated against caseloads, delays, regional accessibility, administrative resources and the quality of appointments. If BASL believes the increase is unnecessary, it should publish the relevant data. How many cases are pending? What is the average time required for disposal? Would five additional judges reduce the backlog? Are there enough courtrooms, research officers and support staff? These are measurable questions.<\/p>\n

A serious Bar Association would lead this discussion with evidence. A politicised one would prefer foreboding.<\/p>\n

None of this absolves the AKD administration. The government has handled the controversy with a lack of political finesse and constitutional prudence. A reform touching the tenure of sitting judges should never have been introduced without extensive consultation, a published policy paper and a convincing explanation of its institutional purpose. The Justice Ministry should have anticipated the inevitable concern that an immediate extension might alter the expected succession within the superior judiciary.<\/p>\n

It apparently did not.<\/p>\n

Justice Minister Harshana Nanayakkara bears substantial responsibility for allowing a manageable reform proposal to become a constitutional confrontation. The ministry should have published statistics on judicial vacancies, caseloads, comparative retirement ages and the expected effect of the proposal. It should have explained why the Chief Justice\u2019s tenure would be limited to six years, why the Court of Appeal required precisely five additional judges, and whether the higher retirement ages would apply to those presently in office.<\/p>\n

Most importantly, it should have engaged the judiciary, BASL, constitutional scholars and civil society before committing itself to particular legislative language. The government\u2019s failure to build a transparent evidential case left a political vacuum. BASL has filled that vacuum with suspicion.<\/p>\n

That may explain the Association\u2019s campaign, but it does not justify its excesses.<\/p>\n

The government must not respond by attacking individual lawyers, questioning their motives without evidence or treating professional criticism as political sabotage. Such behavior would only validate BASL\u2019s warnings and convert an avoidable disagreement into a battle over the rule of law. The correct response is openness: publish the rationale, disclose the consultations, defend the policy clause by clause and amend the Bill where legitimate weaknesses are identified.<\/p>\n

A sensible compromise is readily available. The increase in retirement ages could operate prospectively, or transitional provisions could ensure that it does not appear designed to benefit particular officeholders. The expansion of the Court of Appeal could proceed only after Parliament receives reliable evidence of workload and resource requirements. The proposed six-year limit on the Chief Justice\u2019s tenure should be explained and carefully reconsidered to avoid unintended consequences. Parliament could also subject the entire package to review after a defined period.<\/p>\n

These are practical constitutional solutions. They are preferable both to the government\u2019s present clumsiness and to BASL\u2019s theater of impending catastrophe.<\/p>\n

Sri Lanka needs an independent Bar. It needs lawyers willing to confront governments, defend judges and resist genuine encroachments upon constitutional government. But independence does not mean institutional infallibility. BASL must itself remain accountable to standards of evidence, consistency and restraint.<\/p>\n

When the Bar warns of danger, the country should listen. But when every disagreement is elevated into an existential struggle for judicial independence, warnings lose their moral force. An alarm bell rung constantly\u2014and sometimes for political effect\u2014eventually becomes background noise.<\/p>\n

BASL should return to the disciplined language of law. It should identify the precise constitutional danger, demonstrate it with facts and propose credible safeguards. What it should not do is exploit ambiguity, inflame public suspicion or behave as though professional status gives it an unelected mandate to determine national policy.<\/p>\n

The AKD government must improve both the substance and the presentation of its proposal. The Justice Minister must replace improvisation with statesmanship. But BASL, too, must decide what it wishes to be: a principled guardian of the rule of law or a politically energized pressure group searching for a constitutional crisis.<\/p>\n

Sri Lanka has no shortage of opposition parties. What it desperately needs from its Bar Association is something rarer\u2014consistency, intellectual honesty and constitutional judgment.<\/p>\n","protected":false},"excerpt":{"rendered":"

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