The 22nd Amendment to Constitution: Pandora’s box or a horn of plenty

Introduction

Sri Lanka’s legal system is currently mired in unprecedented controversy with the introduction of new reforms under the 22nd Amendment to the constitution by the Anura Kumara Government. The 22nd Amendment was aimed principally to improve the efficiency of the legal system and the judiciary in Sri Lanka to deliver better justice for the deeply affected population in the country. Sri Lanka has more than 1.1 million court cases pending and inevitably massive changes to the judicial system are necessary to clear this backlog. The judicial system succumbed to the unnecessary interference by politicians to further their own goals and became almost dysfunctional.  

Judicial independence is a principal feature of democracies where the judiciary operates without undue influence from Governments, corporations, or other interest groups. Such a judiciary can guarantee fair, unbiased decisions, upholding justice for all citizens. Judicial independence is often measured on a scale out of 100, and in 2025 Sri Lanka's score was 61, a poor case of judicial independence. Low judicial independence in Sri Lanka indicates systemic corruption, authoritarian governance, or poor implementation of the rule of law. A higher score reflects greater autonomy and impartiality. The two top performing countries are Australia and Zurich (Switzerland) where the scores were 100. Many countries such as Namibia, Papua New Guinea, Kenya and Romania had higher scores than Sri Lanka, shameful for our country. This sordid history requires in depth analysis before the implications of the 22nd Amendment are disentangled.   

Governance and the legal system in Sri Lanka

Sri Lanka’s judicial system and the police became corrupt because rapacious politicians and higher-level bureaucrats (who are often the henchman of the politicians) manipulated the system at will for personal self-aggrandisement and retention of political power over the

last 50 years. In 1982, the then president J.R Jayewardene used a referendum to ask people whether they desire an election at the due time, a most egregious abuse and misuse of power and constitutional authority. Since then, or even before, the system was nibbled away piece by piece until the essential elements of democracy were dismantled. By the 1980s, the long arm of the law was in a permanent sling.  

Gruesome history of politics in Sri Lanka

The politicians are masters in accumulating filthy lucre from lucrative multimillion dollar contracts and they escaped with impunity. Corruption at the top was unbelievable. Sri Lanka lost an enormous number of financial resources. Filthy lucre is more than money and reflects greed, corruption, and the prioritisation of money. It symbolises the moral cost of greed and the ethical compromises made in the pursuit of wealth leading to moral decay which aptly describes decadent Sri Lanka, especially under the regimes during the 1970-2024 period.   

Incidents of corruption and misbehaviour by Sri Lankan politicians are legion. More than Rs. 8 billion were received from the diaspora for the 2004 Tsunami. This was under the “Helping Hambantota” initiative. Mahinda Rajapakse and his coterie of sycophants used these funds for their own gains. In fact, the then Chief Justice Sarath de Silva admitted publicly that he saved Mahinda Rajapaksa who should have been sent to jail for many of his misdemeanours and he did not. This is a nation where the President and the Chief Justice were both corrupt. Every member of the Rajapakse family has court cases and red notices have been issued against Basil Rajapakse. He is in self-imposed exile in the USA awaiting deportation. Former Justice minister Wijedasa Rajapaksa’s son is now indicted for accepting a bribe from a master drug dealer in the country. Ranil Wickramasinghe is being charged for misuse of public funds to travel for his wife’s graduation in Britain. Six former ministers are now languishing in jail for various crimes. The former health minister of Sri Lanka Keheliya Rambukwella and a few others are charged for many deaths caused due to importation of substandard drugs. Ali Sabry smuggled 3.5 kgs of gold from Dubai. He was fined Rs. 7.5 million and the next day he was in the parliament voting on important legislation 

The house of Anoja Weerasinghe, a well-known actress was burnt by the Chandrika Government. The acclaimed songstress of Mother Lanka, the late Dr. Nanda Malini had to escape to India along with Prof Ariyaratne to escape threats to her life from the then Premadasa Government. She sang most evocative songs which had an enormous appeal and inspired millions against the excesses of the Government. Sadly, she passed away recently and the enormous outpourings of grief shown by the Government and the public is testament to the enormous legacy she left for future generations.  I jot down below a song enjoyed by millions. The above song is self - explanatory and shows the cruel nature of our society at one time. 

“Yadamin Bandi Vilangula, Mage Putha Ragenayanna

Idikatu Ana Angili Thala, Dethis Vadaya Pamunuvanna

Aluth Lovak Gana Hitima, Danduvam Dena Varadanam

Kumata Erata Adhikaranaya, Nithiya and Vinisuran”     

Murders most foul: Sri Lankan style

Many gruesome murders were committed during the last fifty years at the behest of powerful politicians. Black July 1983, was masterminded by Cyril Matthew, who was a Minister of the Government, but no one was ever charged. These misdemeanours were tacitly accepted by the Government of President Jayawardena. However, the authoritarian regimes were challenged in 1971 and 1988, by disgruntled youths. But the result was the murder of thousands of innocent youths by the police and other paramilitary groups. Some of the decapitated bodies were strewn along major road networks for everyone to see in order to inculcate fear in the minds of the people. I saw from my own eyes the fourteen people (do not know who they are) who were killed within the Peradeniya University in 1988 by paramilitary groups. Many of the people never stepped out of their houses after 5 p.m. for fear of white vans and armed militants. 

The Batalanda murders where many young activists opposed to Government policies were subjected to torture and some murdered. The murder of Thajudeen, and journalist Ekneligoda, and Lasantha Wickeramatunga include excesses where powerful political families are suspected. The police worked in unison with politicians and also shared the spoils. Once I saw on Sri Lanka TV, Police Minister Tiran Alles, giving instructions to the then IGP Pujitha Jayasundara not to arrest a powerful individual from Ratnapura. The IGP meekly submitted and said on TV, yes sir I will not arrest him. This reminds me of the British comedy, “Yes Minister”. Tiran Alles is now in political wilderness and Pujitha Jayasundera is languishing behind bars awaiting the death sentence passed last week over bureaucratic malfeasance related to the Easter attack in 2019. The Easter attack is the most gruesome crime committed in Sri Lanka  and some political leaders are suspected.     

Aragalaya 2022

The year 2022, is a memorable year for Sri Lanka where youths initiated a peaceful protest against the Government.  The Sri Lankan population now has reached political puberty and cannot be (daily ft) easily swayed by false political propaganda. They are educated and politically savvy and are motivated not by selfless behaviour but the greater good of society. There is strong unity among them and this was the main ingredient they displayed in the revolution of 2024. This strong politically savvy young generation was at the forefront of the birth of a new nation. 

The main objective of the protesters was to topple the corrupt Government of Gotabaya Rajapakse. This unity of purpose has helped them to fight a revolution in 2022 and expel a corrupt Government. This is unprecedented in Sri Lanka and no longer will they allow these capricious politicians to trample their independence by the hob nailed boots of the tri-forces and the Government. There is nothing to learn from their previous political masters who simply plundered the wealth of the nation, destroying natural resources such as forests and sharing the spoils from lucrative multi-million-dollar contracts.  

Aftermath of “Aragalaya”: Emergence of Real Democracy and People's Government, 2024 

Anura Kumara (AKD) Dissanayake was at helm of this struggle, who fought for nearly 24 years within the Parliament is now destined to be the new President of the country. He had the necessary charisma and leadership in the rebuilding of an impoverished nation and on 21 September 2024, he won the presidency with a significant majority. This was unexpected and the ruling political parties were flabbergasted while the ordinary people celebrated the victory. The arduous task of Governing the corrupt nation has begun with an iron fist. The AKD Government had only a short history of close to two years. The Government began to clear the Augean stables systematically arresting and charging many corrupt individuals without any fear of favour.  Of the many changes to the Governmental procedure, the most recent change is the enactment of the 22nd Amendment to the constitutions which has generated vicious debate between the Government and the opposition and BASL. The main elements of the proposal are listed below.      

The 22nd Amendment to the Constitution: A debate misconceived

There are several elements in the 22nd Amendment. These different elements are all equally important and I will argue later why. These different elements of the 22nd Amendment proposed are briefly listed below.

n Extend the retirement age of Supreme Court judges from 65 to 67 years and Court of Appeal judges from 63 to 65 years. The Chief Justice would retire upon reaching 67. raises the High Court judges’ *Retirement age from 61 to 63, with other judges and magistrates set at 62 years .

n Increase the maximum number of Court of Appeal judges from 19 to 24 and 

n Restructure Constitutional Council which includes the Prime Minister, Speaker, Leader of the Opposition, and members appointed by the President based on nominations from Parliament, professional bodies, and universities. The Council will recommend appointments to the Election Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission, and others. 

It also prohibits individuals with dual citizenship from contesting elections and allows the President to dissolve Parliament after two and a half years of its election. 

They propose to expand the court system to rural areas and increase the number of judges and expansion of the prison facilities for prisoners. These are all salutary features in the proposal.  

The Amendment is expected to strengthen judicial independence and reduce the case backlogs. Maintain checks and balance by reinstating independent commissions to ensure checks and balances and enhance parliamentary oversight and accountability of key state institutions

They focus on allowing some prisoners to spend part of the sentence in the Community Based Correctional Facility. This measure would further reduce overcrowding in prisons.

Why I challenge the Opposition and the BASL

(a) Lack of credibility of the Opposition  

Despite many salutary changes contained in the 22nd Amendment to ensure an independent judiciary, the opposition and BASL were intensely opposed only to the extension of the tenure of judges. They were the most vociferous critics of this issue. Why have they teased out one element from the set of proposals for debate is not clear. Their view is that the extension of the retirement age of judges is a threat to the independence of the Judiciary. We cannot accept this view because the opposition and the BASL lost their credibility long ago. Many opposition  members face corruption allegations and some have already been charged in courts for a variety of sins including murder. Some of them have visited the courts more than once and some are on bail. This group of parliamentarians disenfranchised the then Chief Justice Dr Shiranee Bandaranayake. How can this group safeguard the independence and soul of the Judiciary?   

The BASL has lost its credibility too. It is extremely political and the President of the BASL Rajiv Amarasuriya, is a close ally of several top politicians such as Ranil Wickremasinghe and Prof G.L. Peiris. Already we have seen some objections to the President of BASL appearing and some have asked for his resignation. They may grow louder as reality dawns upon them. The coalition is facing headwinds and their hysterical dislike towards the extension of tenure may flounder on the rocks of acrimony. We saw the acerbic innuendo of MP Rohini Kaviratne attacking the Chief Justice Surasena in the Parliament. Clearly, there must be new legislation to define the red lines which cannot be crossed by these cowards of the castle. The sad irony however, is that those who are affected by the reforms namely the Sri Lankan public who face many court cases have shown no visible resistance to these reforms

(b)The lack of rigour in analysis in the debate

The BASL and the opposition have failed to see the Amendment with any analytical rigour. Erudite scholars and the so-called legal luminaries such as Prof. G.L. Peries must be able to analyse these issues critically to provide good insights to the Government but he miserably failed. In his octogenarian years, dithering in dotage, he has lost his sharp ability to provide robust arguments impartially to support the amendment that would shape our future. I saw that in a recent interview, Prof. Peries argued that the full bench must hear the cases against the 22nd Amendment. Why?, Obviously they are all senior judges and he is confident that they will deliver impartial judgment. Here he values seniority but at the same time he contradicts himself by arguing against the extension of the tenure of judges. I also saw him asking for a referendum for the implementation of the 22nd Amendment. The Government will win this referendum with a handsome majority. The opposition will fall from the frying pan into the fire. All these people have become poignant day dreaming charlatans.       

(c) Multidisciplinary nature of modern day development issues  

In the modern world, development issues are highly complex and multidisciplinary approaches are needed to evaluate economic policies to circumnavigate these complexities. But the analytical minds of the opposition and the BASL are weak, and they view complex multidimensional issues through a unidimensional lens. The dimensions include law, society, community issues, economics, sociology, ethics and morality. The 22nd Amendment contains  issues related to all these fields. President Anura Kumara Dissanayake has a razor-sharp mind and he has understood the need for a multidisciplinary approach to the amendment. The opposition has sacrificed rigour in analysis before the altar of political expediency.  

(d) Complementary nature of the different elements of the 22nd Amendment  

In economic jargon, we say that complementary goods have a close relationship to each other. That is to say that one good is reliant on the other to add value. Now I like to use this argument for the different elements proposed in the 22nd Amendment. All of the different elements add value to each other. One element in isolation will not yield optimal results. Take for example the extension of the tenure of a judge. This may have good outcomes but if it is done along with other elements such as increasing the number of prisons, introducing community policing etc. the overall result will be better. Thus, teasing out only the tenure issue and arguing against it without understanding the complementary nature of the other elements is inadequate. It may result in erroneous conclusions. The opposition and the RBSL need to understand the holistic approach to complex legal issues. 

(e ) Technology, developmental priorities and experience 

Development of a nation comes in waves mostly related to the development of innovative technologies. The industrial revolution was based on the development of the steam engine. The communications technologies are at the heart of the communications revolution that led to rapid economic growth.  

New technology such as Artificial Intelligence (AI) can help Sri Lanka along with the new legal reforms proposed (22nd Amendment to the Constitution) to cross barriers in many fields and enter into a new era. AI can improve efficiency, access to justice and manage ever increasing caseloads. This adoption process is most effectively done with senior judges with significant skills and experience. The opposition's arguments are empty because they are not developmental. President Anura Kumara Dissanayake is pursuing digitalisation of the legal system. Extending the tenure of experienced judicial leaders can speed up the adoption of AI and deliver quick justice to the ordinary people. This creates efficiencies and also minimises economic costs because new judges cannot be appointed in a hurry.  

AI is already transforming justice systems across Asia and the Pacific region. Singapore uses pioneering smart courts now but Sri Lanka is far behind yet. Stronger governance, safeguards and regional cooperation, and public trust are essential to ensure that AI advances access to justice, human rights and public trust. The role of the senior judge is indispensable in this revolution. 

I learnt that the current Chief Justice Surasena has displayed keen leadership and interest in digitalisation of the court system, Skills and experience of senior judges are very relevant here. The effectiveness of anti-corruption laws depends on strong enforcement mechanisms, judicial independence and institutional integrity. The opposition cannot deny Sri Lanka these future opportunities, when the country is crying for significant changes to the judiciary. Sri Lanka is a signatory to the sustainable development goals (SDGs) of the United Nations. Goal 16 (SDG 16) aims at “promoting peaceful and inclusive societies for sustainable development (SD), providing accessible justice for all and building effective accountable and inclusive institutions at all levels. This is a tall order and without new technology, senior judges and broader approach to legal amendments, Sri Lanka is doomed.  

Conclusion

These legal misdemeanours of previous regimes are indelibly etched in the minds of the Sri Lankan public. The public can no longer be duped by gullible politicians. The ulterior motive of the opposition and the BASL is to precipitate a political crisis in the country and fish in troubled waters.   

Unfortunately, the opposition cannot convince the public and the Government to create a political crisis. The Sri Lankan population now has reached political puberty and cannot be easily swayed by false political propaganda. Yet our politicians vociferously espouse their capabilities to resurrect the country’s health. But our young generation is politically mature and has unique experiences in fighting a revolution in 2022 and managing to expel a corrupt Government, which was unprecedented in Sri Lanka. The opposition is preaching their sermons to an empty house. 

The Opposition must learn from “Aragalaya”. In the meeting of the President with the BASL, the arguments of the legal fraternity were smashed into smithereens. The desperation of the opposition is clear. We saw Mahinda, Gotabaya and Namal visiting the Seenigama Devale last week to pray seeking divine intercedence to save them from pending court cases. Those who oppose these reforms to the judicial system are struggling in the grip of quicksand; the more they argue, the more they sink.  

(The author is a Former Professor of Economics, Monash University, Malaysia)