Anti-Corruption Bill clauses on bail and remand requires Referendum: SC

• Clause bringing media company owners into the asset-declaration net, needs Special Majority
• Clause 7s repeal of asset-declaration duty for household members ordered withdrawn, or passed only by Special Majority
• Clause 17, barring bail above set monetary thresholds except in a High Court, is the only provision requiring both Special Majority and Referendum

Speaker Dr. Jagath Wickramaratne yesterday informed Parliament that the Supreme Court has determined that two clauses of the Anti-Corruption (Amendment) Bill are inconsistent with the Constitution.

The most consequential of them, a provision restricting bail in higher-value corruption cases, require both a Special Majority in Parliament and approval by the People at a Referendum before it can become law.

The most far-reaching finding concerned Clause 17, which the Court held inconsistent with Article 4(c), read with Article 3 of the Constitution, a conclusion it said was further supported by Article 13(2). 

Clause 17 replaces subsection (1) of Section 149. Under the Bill, offences under the Act remain, as at present, cognisable and non-bailable under the Bail Act, No. 30 of 1997. 

But it adds a proviso: where a suspect or accused is alleged to have solicited, accepted or offered a bribe of not less than Rs. 100,000, or to have caused the Government a loss, or gained a benefit, favour or advantage, of not less than Rs. 500,000, with the value confirmed by the Director-General through a certificate, that person “shall not be granted bail except in exceptional circumstances by a High Court.”

In practical terms, for corruption allegations that clear these monetary thresholds, an ordinary Magistrates Court would no longer be able to grant bail at all; only a High Court could do so, and only in exceptional circumstances. 

This shifts the normal presumption that an accused person is granted bail unless the State shows good reason to detain them, placing the burden instead on the accused to persuade a higher court that exceptional circumstances justify their release.

Article 3 vests sovereignty in the People, Article 4(c) concerns the exercise of judicial power through courts and institutions established by law, and Article 13(2) protects the right of an arrested person to be informed of the reason for arrest. 

The Determination held that Clause 17, in its present form, may become law only if it is passed with the Special Majority required under Article 84(2) and is also approved by the People at a Referendum in terms of Article 83.

Announcing the Special Determination in the House, the Speaker said the Bill, which amends the Anti-Corruption Act No. 9 of 2023, had been challenged in the Supreme Court under Article 121(1) of the Constitution. 

The Bill was presented by Prime Minister Dr. Harini Amarasuriya on 19 August, 2026, after being gazetted on 27 July, and drew 15 petitions, including one by Transparency International Sri Lanka (TISL) and its Executive Director Maheshi Herat, filed on 31 August.

The Court found that Clauses 3, 4, 6(4) and 6(5) of the Bill are not inconsistent with the Constitution and may be passed with a Simple Majority in Parliament. 

Clause 3 amends Section 67 to let the Director-General withdraw charges filed in Magistrates Courts, a power currently limited to indictments in the High Court. 

Clause 4 amends Section 70 to shift the decision on whether to spare an accomplice from prosecution, in exchange for a full and true disclosure of the offence, from a Magistrate to the Director-General, and removes wording that had confined this option to bribery cases, extending it to other offences under Part III of the Act. 

Clause 6(4) adds trade union executives, where the union has more than 1,000 registered members, to the category of persons required to declare their assets and liabilities, while Clause 6(5) raises, from 25% to 50%, the threshold of State or public-corporation shareholding above which an officer of that entity must declare.

The Court reached the same finding on Clause 11(1), which adds a new paragraph (f) to Section 88(1) empowering the Central Authority to redact “any other information” it considers to violate an individuals privacy from a published asset declaration.

On Clause 11(2), which, as amended at the Committee Stage, restricts anyone who obtains a redacted declaration from using it for any purpose beyond formal submission under Section 86, and makes unauthorised use an offence carrying a fine of up to Rs. 100,000, imprisonment of up to one year, or both.

The Court held Clause 6(7) of the Bill to be inconsistent with Articles 12(1) and 14(1)(a) of the Constitution, the equal protection and freedom of expression guarantees respectively, meaning it may only be validly passed with the Special Majority provided for under Article 84(2). 

Clause 6(7) brings “proprietors, chairmen and directors of media companies” registered with the Ministry of Mass Media and licensed under the Sri Lanka Telecommunications Act into the list of persons required to make asset declarations.

On Clause 7, the Court held the provision inconsistent with Article 12(1). This clause repeals paragraph (e) of Section 81, which currently extends a declarants asset-declaration obligations to certain other persons connected to them; the Bills own Statement of Legal Effect describes the change as intended “to remove persons who are total strangers to the declarant in order to safeguard the privacy of such person.” 

The Determination stated that the repeal “should therefore be withdrawn,” and that if Clause 7 is proceeded with in its present form, it may be validly passed only with the Special Majority prescribed by Article 84(2), read together with Article 82(5).

The Speaker directed that the Supreme Courts full Determination be printed in the official report of parliamentary proceedings.

The Bill was heard by a three-judge Bench of the Supreme Court separate from the Bench that determined the 22nd Amendment to the Constitution and Judicature (Amendment) Bills.