From JR and Neville Samarakoon to Chandrika and Sarath Silva, Mahinda and Shirani – politics has wandered too close to the bench before. With 22A now before the court, perhaps everyone should remember the lessons.
Sri Lanka’s Supreme Court is older than independent Sri Lanka itself. Established by Royal Charter in 1801, it is one of the oldest Supreme Courts in the Commonwealth and carries more than two centuries of judicial history. That history deserves more than ceremonial respect; it demands political restraint.
Unfortunately, successive governments of different political colours have not always demonstrated it. This is not an accusation directed at one President, one party or one period. The historical record suggests instead a recurring Sri Lankan problem: political power has periodically wandered too close to the judiciary, and whenever it does, public confidence in the institution risks paying part of the price.
President J.R. Jayewardene broke with established expectations when he appointed Neville Samarakoon Chief Justice in 1977 from the private Bar rather than elevating a member of the existing Supreme Court. Samarakoon had been personally associated with Jayewardene, making the appointment particularly controversial at the time.
History, however, produced an interesting result. The supposed outsider did not become an obedient Chief Justice and instead demonstrated considerable independence, eventually becoming openly critical of the very Government whose President had appointed him. There was an important lesson in that episode: judicial independence ultimately depends upon the person wearing the robes refusing to remember who helped put them on.
Two decades later came another appointment which generated profound controversy. President Chandrika Bandaranaike Kumaratunga appointed then Attorney-General Sarath N. Silva as Chief Justice in 1999, an appointment which attracted criticism both domestically and internationally and raised questions about the bypassing of senior members of the judiciary.
Whatever one’s assessment of Sarath Silva’s subsequent judgments – and history will continue debating them – the more damaging question was whether the public believed politics had entered the appointment process. Courts survive not merely upon the legal authority conferred upon them by a Constitution, but upon public confidence that the men and women exercising that authority are independent of those who govern.
Then came the impeachment of Chief Justice Shirani Bandaranayake under President Mahinda Rajapaksa. If earlier controversies had chipped away at confidence, her removal in January 2013 took the confrontation between political power and judicial independence to another level, particularly because the process continued amid judicial findings concerning its legality.
Former Attorney-General Mohan Peiris subsequently assumed office as Chief Justice. The Bar protested, international criticism followed and Sri Lanka found itself defending not merely a political decision but the perceived independence of its highest court.
Then politics changed. Maithripala Sirisena became President in January 2015 and Bandaranayake was restored as Chief Justice on the basis that her removal had been invalid. She returned to Hulftsdorp and retired the following day, restoring her status and entitlements as a former Chief Justice.
Perhaps an injustice was thereby corrected, but consider what the entire episode looked like institutionally. One political dispensation removed a Chief Justice and another restored her, leaving the Supreme Court caught between two exercises of political power. Whatever the legal arguments surrounding those events, that is precisely the sort of position in which the country’s highest court should never again find itself.
Which brings us, rather uncomfortably, to 2026. The Government proposes increasing the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65, arguing that the measure forms part of a wider effort to address Sri Lanka’s enormous backlog of cases.
That argument deserves to be heard. Indeed, the proposition that judicial retirement ages fixed decades ago should never be reconsidered would itself be difficult to defend: societies change, life expectancy changes, working lives change and the law cannot be expected to remain permanently frozen in time.
The critical questions are how such a change should constitutionally be made and, importantly, whether and how it should apply to judges already holding office. Those questions are now before the Supreme Court after petitions were filed challenging the proposed 22nd Amendment, with petitioners contending that aspects of the measure affect judicial independence and require approval by the people at a referendum. The Government takes a different view, and that disagreement is precisely why Sri Lanka has a Supreme Court.
It is against that background that recent remarks attributed to Justice Minister Harshana Nanayakkara deserve particular scrutiny. The Minister has reportedly indicated that the Government intends to proceed with the 22nd Amendment and the related Judicature Amendment despite the obstacles confronting them.
The Justice Minister is perfectly entitled to defend Government policy, argue that judges should serve longer and explain why the Government believes its proposals are constitutional. The Attorney-General is equally entitled to defend the legislation vigorously when the constitutional challenges are heard.
But once citizens have invoked the jurisdiction of the country’s highest court and that Court must determine the constitutional questions raised, there surely comes a moment when discretion becomes the better part of political valour. A Justice Minister should be especially careful not to create even the appearance of pronouncing the destination while the Court is still being asked to determine the route.
Nobody reasonably suggests that the Justice Minister can dictate what the Supreme Court will decide; plainly he cannot. Nor does the filing of a constitutional challenge require a Government automatically to abandon legislation. The issue is considerably subtler: justice must not merely be independent, but the circumstances surrounding its administration must make that independence unmistakable.
If the Minister whose very portfolio is Justice appears to tell the country that Government will proceed regardless of the obstacles while the Supreme Court is preparing to adjudicate upon objections to that proposal, the question is not simply whether he is legally entitled to say it. The question is whether he ought to say it at all. At the very least such comments are unnecessary; at worst they risk creating precisely the perception every responsible Government should be trying to avoid.
There is a wonderfully understated expression inherited from the British: it simply isn’t cricket. The Executive proposes policy, Parliament legislates, citizens are entitled to challenge legislation, the Attorney-General argues the State’s position and the Supreme Court determines what the Constitution permits. The constitutional arrangement works best when everyone respects those boundaries.
Sri Lanka has travelled close to this territory too many times. JR Jayewardene and Neville Samarakoon should teach us something; Chandrika Kumaratunga and the appointment of Sarath Silva should teach us something; Mahinda Rajapaksa and the removal of Shirani Bandaranayake should certainly teach us something. Her extraordinary restoration under the succeeding administration should teach us something too.
The lesson is not that every controversial judicial appointment or every attempt at judicial reform is necessarily unlawful. It is more fundamental than that: politics should be kept as far away from the administration of justice as the Constitution permits, because even the appearance of political influence can damage an institution whose authority depends enormously upon public trust.
Governments, Presidents and Chief Justices inevitably come and go, but the Supreme Court must remain. Its authority ultimately rests neither upon physical force nor electoral majorities, but upon something considerably more fragile – the people’s belief that when the judges take their seats, nobody else is sitting on the Bench with them.
After 225 years, that is an inheritance Sri Lanka should be adding to, not spending.
be that as it may
