Tuesday Sep 22, 2026
Tuesday Sep 22, 2026
Tuesday, 22 September 2026 04:45 - - {{hitsCtrl.values.hits}}
Independence and judgement
The terms independence and judgement are at the very core of the debate on extension of judicial tenure, and so I thought I must use this opportunity to discuss the concept of “independence” and of "judgement" within the context of my profession and perhaps share some ideas if I may, for the benefit of fellow members in public practice, in industry, in positions of governance on boards of directors in the public and private sectors and in regulatory roles.
Objectivity, honesty and integrity
Independence of judgement is a fundamental ingredient of the accounting, auditing and consulting professions. I would add objectivity, honesty and integrity as equally fundamental professional attributes. Taken together, these should ensure that professional judgment is not improperly impaired when undertaking audit, assurance, advisory or regulatory responsibilities.
Self-inflicted impairment of judgement
Judgement may be impaired by deficiencies within a professional's own conduct or competence. This may occur, by default or design, due to neglect in investing high quality professional time in order to learn and understand the complexity of an assignment; through failure to deploy adequate technical expertise or resources; insufficient due care and attention; inadequate due diligence; or a failure to exercise appropriate professional scepticism.
Externally induced impairment of independence.
It is important, however, to distinguish between an impairment of professional judgement and an impairment of independence. Independence may also be impaired through external influence. A professional may be enticed, induced or incentivised by private vested interests, or subjected to political expectations, intimidation or interference.
The consequences
The consequences of what is described in all of the above may well be erroneous or inappropriate conclusions, decisions, advice or opinions that are no longer the product of objective and professionally defensible judgement, potentially causing serious harm to individuals, institutions, investors, clients and where they fall below the required professional standard, may constitute professional negligence and/or professional misconduct.
A professional may be independent yet professionally incompetent; equally, a highly competent professional may cease to be independent if his or her judgement is captured by an improper influence. Professional standards therefore require both competence and independence, supported by objectivity, integrity, due care and professional scepticism
Independence vs. competence
The distinction is important. A professional may be independent yet professionally incompetent; equally, a highly competent professional may cease to be independent if his or her judgement is captured by an improper influence. Professional standards therefore require both competence and independence, supported by objectivity, integrity, due care and professional scepticism.
External interference and regulatory forbearance
Interference arising from political influence or private vested interest can, for example, result in regulatory forbearance—the failure, delay or selective application of regulatory action where the circumstances require otherwise. The consequences can extend well beyond an individual decision, potentially affecting the integrity and reputation of an entire capital market, a banking system or insurance industry to name a few.
Professional responsibility: In the public interest
In the course of regulatory roles as well as in governance functions I have had the privilege to perform, whether at the Securities and Exchange Commission, where I have encountered situations of attempted interference; or instances of real or potential conflicts of interest or external influence in regulatory or statutory bodies, such as the Accounting and Auditing Standards Monitoring Board; the Consumer Affairs Council of the Consumer Affairs Authority, or on Boards of Directors or while Chairing Audit Committees, on my part, I have sought to ensure that decisions were ultimately guided by justice, equity, fairness, based on evidence and the applicable regulatory or governance mandate, rather than by the source or strength of the pressure being brought upon our deliberations.
Some situations required, in effect, swimming against a tide. Yet I also learned that independence does not necessarily mean acting alone. Where possible, I sought to build awareness, encourage honest debate, consult widely and develop consensus among those prepared to approach the issue objectively and in the public interest.
Not freedom from accountability or immunity from scrutiny
Independence does not mean freedom from accountability, nor does it mean immunity from scrutiny. Rather, it means having the professional capacity, ethical foundation and institutional protection to exercise independent judgement while remaining accountable for that judgment. This, I believe, is an inherent expectation of professional responsibility—whether exercised in the private or public sector.
Let us now discuss a very brief overview of approaches to possible economic and sectoral reform, based on, on- site experiences in practical situations. I do so to bring some justification for my writing on justice system reform- a domain outside my profession and to demonstrate my sincerity of purpose therfor.
Legal, regulatory and institutional frameworks: Workflows, bottlenecks, inadequacies and redundancies
During the course of decades of professional engagements in institutional reform, I had the opportunity to review functions, processes and documentation flows, identify strengths and weaknesses in systems, procedures and controls, bottlenecks and redundancies, while also reviewing the adequacy, effectiveness and coverage of the corresponding, enabling legal, statutory and regulatory framework. Based on these diagnostic assessments, recommendations for re-engineering processes, restructuring institutions, improving the legal and regulatory framework, strengthening institutional technical capacity, and introducing technology, were provided. Here is just one specific example.
The debate about judicial tenure has understandably focused on judicial independence, constitutional safeguards and the question of whether serving judges should have their tenure extended. Those are legitimate and important questions. But there is another question which should not be lost in the debate: what is the cost to society when justice is delayed for years
ADB's GICRA: Governance, Institutional, Corruption Risk Assessments
On the invitation of the Asian Development Bank, I team led assignments in two post-Soviet nations- Armenia and Azerbaijan, where I had the privilege of recommending Technical Assistance Programs funded by the ADB, towards legal, institutional, technical training and capacity building reforms, in the areas of Public Financial Management, Public Procurement and Anti-Corruption.
Risk managing intellectual capital outflows
Introducing technology as an enabler at every relevant step is a key consideration. Yet, institutional systems and procedural re-design supported by automation, digitalisation and technological upgrades, can achieve little if the institutions are not equipped with the right human capital resources and capabilities. Managing the risk of losing experienced human resources through retirement, migration or departure from public service before their knowledge and experience has been leveraged to the optimum, and succession planning has been executed, is essential.
These are feeders and providers of the material, the substance, the evidence, which forms the basis for final interpretation and judgement, which in turn requires maturity and experience in determining the adequacy, completeness and presentation of such evidence. It is in that current Sri Lankan context that I view the recent retirements of judges, or the delays if any in filling of vacancies, that might have been avoided.
The Justice system value chain
Space was not available for a proper discussion of the main components of this value chain, in my first article on 15 September (https://www.ft.lk/columns/Beyond-judicial-tenure-Retaining-experience-while-reforming-the-justice-system/4-797234) leading to my having to split the article into two parts, retaining only my reference to the Office of Attorney General. In this sequel, I am now re-introducing in full, the balance text on components of the justice system value chain, which will be of particular benefit to those who function outside the justice system or value chain.
Criminal matters - The Police
In criminal matters, the process may begin with a complaint to the Police. However this has to proceed through investigation, crime-scene management, gathering and preservation of evidence, forensic and medical examination, prosecutorial assessment, indictment, trial, judgment, appeal and enforcement. Modern investigative methods, professional investigators and proper systems for preserving physical and digital evidence are consequently as important as judicial capacity.
The Government Analyst’s Department
The Government Analyst’s Department is another critical link and requires adequate resources, regional capacity and modern laboratories. Its work includes ballistics — the examination of firearms, bullets and related evidence; serology — the examination of blood and other biological material; and toxicology — the detection and analysis of drugs, poisons, alcohol and other substances. Delays here can hold up an entire prosecution.
The Judicial Medical Service
The Judicial Medical Service, prosecutors and the Attorney General’s Department are equally important. Forensic and medical expertise is an essential part of the justice chain. A stronger prosecution function should enable cases to be assessed earlier, weak cases to be filtered out or investigated further, and properly prepared cases to reach court without avoidable delay.
Civil matters
In civil matters, the process generally involves pleadings, identification of issues, discovery and production of documents, presentation of evidence and, depending on the proceedings and directions of the court, written submissions or arguments, followed by judgment and, where necessary, appeal and enforcement. Delays at any of these stages can ultimately appear in the statistics as a “judicial backlog”.
Cost to society
The debate about judicial tenure has understandably focused on judicial independence, constitutional safeguards and the question of whether serving judges should have their tenure extended. Those are legitimate and important questions. But there is another question which should not be lost in the debate: what is the cost to society when justice is delayed for years.
Implications of delayed justice - Evidence gathering, disappearing witnesses, fading memories
When allegations of corruption and misuse of public resources remain unresolved for years, evidence may become harder to obtain, witnesses disappear or memories fade, suspects remain under suspicion, victims wait for closure, public confidence suffers, and successive governments inherit unresolved cases.
Successive Government's bear responsibility for reforms that were not pursued with sufficient continuity, much like the State Owned Enterprise or Banking Sector reforms. Have we failed as Accountants, Bankers and Economists? Have the technical and professional groups that form the justice-delivery system failed? This is not about assigning blame, but it is about recognising that a problem accumulated over decades will require collective responsibility for its solution. I remain optimistic
An allegation must be investigated. An investigation is not a conviction. A prosecution must be fairly tested. And a judgment must ultimately determine the matter according to law.
Why should any citizen — whether a politician, public official, businessperson or an ordinary citizen — have to wait for years before an allegation, dispute or criminal charge reaches a fair and final conclusion?
Reminiscences about late 2014 and the Good Governance regime of 2015
I thought I must recall the many pre-election speeches during the latter part of 2014, of the Good Governance Government that took office in 2015. Several new investigative initiatives, new institutions and legal reform- for example, the Judicature (Amendment) Act No 9 of 2018 -were introduced. I held a few key positions in that Government. Let me share an example from one.
Financial and economic offences and the 6th schedule
As Chairman of the Securities and Exchange Commission, I recall discussing with a then Attorney General, the provisions in the Judicature (Amendment) Act No 9 of 2018, in relation to financial and economic offences specified in the Sixth Schedule to this Amendment Act, and in particular the reference in that schedule of "Any act constituting an offence under the Securities and Exchange Commission of Sri Lanka Act 36, of 1987."
These provisions might have enabled us at the Securities and Exchange Commission to expedite litigation and enforcement on account of capital market offences, based upon a referral by the Attorney General to the Chief Justice, that a matter indeed had serious financial and economic consequences. It would be useful to inventorise how many cases of financial and economic offences were investigated, prosecuted and taken to conclusion over the last 8 years.
Beyond the court room: Alternative dispute resolution – does it always deliver?
Not every dispute needs a full judicial trial. Mediation, arbitration and other forms of alternative dispute resolution should be used where ever appropriate, allowing scarce judicial time to be concentrated on matters genuinely requiring adjudication. But here too, the mechanism itself must work efficiently. As for mediation and arbitration, I hope the new initiatives, inter alia, the Recognition and Enforcement of International Settlement Agreements Resulting from Mediation Act No. 5 of 2024 and more recently, the Mediation (Civil and Commercial Disputes) Act No. 13 of 2026, have begun to reap rewards. A more detailed assessment of the adequacy and effectiveness of the legal and institutional infrastructure of our arbitration and mediation system, requires more space and is thus reserved for a future article.
The National Competitiveness Council and Legal Infrastructure: One of the 8 factors of Competitiveness
Just over 25 years ago, at the invitation of USAID, I served on a National Steering Committee, in an honorary capacity, to develop a White Paper on the establishment of a National Competitiveness Council (NCC) for Sri Lanka. With guidance from Howard Rosen, President Bill Clinton’s advisor on national competitiveness, we designed the institution, processes, clusters and performed comparative analyses of Competitiveness Councils in other jurisdictions. A lawyer in our 15 member committee drafted the legislation which was even vetted by the Legal Draftmsan. One among many learning outcomes of relevance for this article, was that of 8 broad factors of Competitiveness, Legal Infrastructure was one and that alone had about 6-8 sub factors, which included the time required to settle commercial disputes, whether through the courts or arbitration.
A more detailed discussion on our efforts at establishing a National Competitiveness Council, and the policy advocacy I engaged in, through the new Secretary to the Treasury in early 2002; then through a presentation at the Annual Economic Summit of the Ceylon Chamber of Commerce in 2002, and through my subsequent efforts in writing to the then Finance Minister and Prime Minister, when the Government changed again in 2015, are also reserved for a future article. This is yet another one of hundreds of worthy initiatives which require bipartisan consensus.
Collective culpability and responsibility
Successive Government's bear responsibility for reforms that were not pursued with sufficient continuity, much like the State Owned Enterprise or Banking Sector reforms. Have we failed as Accountants, Bankers and Economists? Have the technical and professional groups that form the justice-delivery system failed? This is not about assigning blame, but it is about recognising that a problem accumulated over decades will require collective responsibility for its solution. I remain optimistic.
Post Script - 19 September 2026 Technological upgrades 'Beyond the Courtroom'
As reported in the Daily FT on 19 September 2026 (https://www.ft.lk/news/UNDP-supports-Govt-Analyst-Department-DNA-Laboratory-in-procuring-critical-equipment/56-797449), here is a practical example of modernisation of processes in the Government Analyst’s Department:-
On 15 September 2026, UNDP handed over 17 pieces of critical equipment to strengthen the DNA laboratory of Sri Lanka’s Government Analyst’s Department, including a RT-PCR machine, PCR system and Crime Lite Serology Kit. Importantly, this was not simply a donation of modern technology. UNDP states that the equipment was procured following a comprehensive study of the laboratory’s existing processes, with the objective of strengthening the detection, analysis and profiling of biological evidence and improving the integrated forensic workflow for Sexual and Gender-Based Violence and other criminal investigations.
The equipment includes technology to help locate biological evidence that may not be visible to the naked eye, and sophisticated PCR-based systems that enable very small quantities of genetic material to be detected, analysed and amplified sufficiently for DNA profiling. In simple terms, the technology strengthens the laboratory's ability to move from finding the evidence, to analysing it, to producing reliable DNA profiles that can assist investigators, prosecutors and ultimately the courts. The stated objective is ultimately to help clear the existing forensic backlog and accelerate the dispensation of justice.
This is only one small example of an essential process level improvement, but the kind of intervention that a broader Justice System Reform program should incorporate.
