• Charges that there was no consultation or awareness-building before Govt. pushed 22A to the fore
• Says amendment, if enacted, will likely have little impact on speed of judicial process
• Says much more can be done to reduce caseloads and speed up administration of justice 
• Warns of risks to Constitution and dangerous precedent it could set for future

As the Government presses ahead with the proposed 22nd Amendment (22A) to the Constitution, questions over the timing, rationale, and wider implications of the move have continued to fuel debate among legal professionals and the public.  

In this interview with The Sunday Morning, former President of the Bar Association of Sri Lanka (BASL) Saliya Pieris, PC argues that constitutional amendments should not be rushed, warning that provisions introduced today could be exploited by future governments. 

He questions the Government’s stated rationale for the amendment, pointing to the absence of what he considers meaningful consultation with relevant stakeholders. He also discusses the wider risks to judicial independence when amendments are introduced without sufficient consideration. 

Following are excerpts:

You have said that the Government’s push to introduce the 22nd Amendment is a pretext for something else and have warned that such moves should be challenged. Many have argued the same in court and we await the outcome. Why are you against this move? It seems to have popular support amongst the general public.

What I say is that constitutional amendments have to be well thought out. Constitutional amendments should not be rushed. Our history has shown this from the inception of the 1978 Constitution. Sri Lanka’s Constitution has been amended many times to suit certain individuals and has been done so without thinking of the long-term effects of an amendment.

For instance, the Fourth Amendment to the Constitution extended the life of Parliament, the Second Amendment, which is called the ‘Rajadurai Amendment,’ or the First Amendment, which targeted [former Prime Minister Sirimavo] Bandaranaike. 

There have been many amendments. The 18th Amendment, introduced by President Mahinda Rajapaksa, was trying to cater to a particular situation or to a particular individual. When that happens, without sufficient thought and consultation, and amendments are rushed through, there is a risk that the provisions can be misused or abused, not only in the present but also in the future. That is why I say that this [22nd Amendment] is not genuine.

If the Government were indeed genuine, there would have been a consultative process; it would have asked the judges and the Judicial Service Association for their views. It would have asked the Bar and the people for their views. But this was obviously not done, because, if you look at the timeline, in April, the Justice Minister said he was unaware of any such movement. 

On 6 June, in an interview, he said: ‘I am unaware,’ he said that it was not being discussed. So, if it had not been discussed with the Justice Minister by 6 June, when did those discussions take place? By mid-July, within six weeks, what happened? 

We all know that there were rumours about this, but the Government was constantly denying them. So the question is: why has it been sprung at this moment? This is why I say that the reason the Government has given, stating that it is to clear the backlog of cases, doesn’t hold any merit.

I am of the view that this is an ad hoc amendment. They are just trying to cater to a particular situation. And that is, as we have mentioned in the Supreme Court, an attempt to try to lock in the court for a period of time. That kind of amendment is not conducive to constitutionalism.

If the 22nd Amendment is introduced into law and the Government gets to make the changes it aspires to do, will it set a bad precedent for the future? What can go wrong? Can a future government with a supermajority do as it pleases?

There are risks involved. I want to say this as it is: we have to keep the law, the legalistic aspect, out of it. If you look at the practicalities, a future government can decide to extend the retirement age further. There is a precedent where it has been done before. So, if at some point in the future, there is a government that favours a particular judge, the chief justice, or a group of judges, that government may decide to extend their period in office.

Another government could decide to extend their term for life. Then what is going to prevent it? The 22nd Amendment says 67; what will come next – 75 or more? That way, if a future government wants to ‘lock in’ a particular court, there is a danger of that happening. This is why ill-thought-out amendments can have repercussions later. When other people come into power, they can continue to abuse the system. 

Our other concern is that this particular clause is contained in a chapter under the independence of the Judiciary. So, what would prevent a future government from also amending those clauses? It does set a bad precedent. Perhaps a populist government could even use a referendum to make more changes, which is a risk.

And even if they hold a referendum and introduce changes, such changes can be dangerous to the independence of the Judiciary. The thing is, it is not a question of whether amendments are popular. If you look at the Third Amendment to the Constitution, or the Second Amendment, the first few amendments to our Constitution were passed by a popular government with a supermajority. The referendum to extend the life of Parliament was approved by the people. But we know what happened to the country after that. Therefore, irrespective of a two-thirds majority or approval by referendum, what is wrong – what is morally wrong – should not be condoned.

This amendment came to light almost suddenly. There have been claims made by the BASL and others that there was little or no consultation or awareness of it before the fact. Why is that? Is there a need for secrecy in introducing such amendments?

Yes, that is what caused suspicion about the intentions of the Government. If the Government is genuinely looking for solutions for delays in litigation, then governments most certainly need to look at the delays in litigation. That would be salutary. But there was no consultation.

However, if that was indeed the genuine intention, you would naturally consult the stakeholders. For instance, some years ago in the United Kingdom, there was a committee headed by Lord Woolf to look into legal reforms. There was extensive consultation and scrutiny and they came up with various proposals. In the UK, under the reform programme, there was extensive consultation about increasing the retirement age of judges before it was implemented. 

If the Government’s intention was genuine, why was the Minister of Justice left in the dark as of late June? I think this fact would lead us to draw the inference that what is stated is not the genuine reason behind the sponsorship of this amendment.

Do you think the Government and its supporters are using the debate around the 22nd Amendment to discredit the legal fraternity in Sri Lanka? What are your thoughts on the narratives which are now making the rounds in the media and especially the social media space?

I think we can see that happening. Probably, if the BASL had kept quiet, this attempt to discredit the legal profession wouldn’t have happened. If the Bar Association and the lawyers had kept quiet, then none of this criticism would have risen. 

It is because of the opposition that was raised that the proponents of the amendment have seen fit to vilify the President of the Bar Association and lawyers in general. I’m not saying for a moment that there are no issues within the legal profession that need to be corrected. There is a need for reform in some areas and we must also look inwards.

However, it is a fact that whenever the rights of people are threatened, whenever constitutionalism is under threat, the legal profession is an institution that stands against it. There is an American Supreme Court Judge who has written about how the legal profession is sometimes the first to be attacked by those who seek to create tyranny. 

This is not new; it has happened many times. In 1990, when the Bar Association was appearing in human rights cases on behalf of Janatha Vimukthi Peramuna (JVP) members who had been imprisoned under detention orders, then Minister of State for Defence Ranjan Wijeratne called the Bar Association a terrorist organisation.

Some Left-wing supporters have argued that the legal community in Sri Lanka has ‘gatekeepers’ and access to justice is impaired by a ‘legal elite’ that is centred in Colombo. How do you respond to such a claim?

I believe that justice must be more accessible to people. But how does this amendment make justice more accessible? If you want to make justice more accessible to people, you must expand fundamental rights jurisdiction.

More people must be able to come before the courts and complain when their fundamental rights have been violated. And the justice system must provide them with relief for the violation of their fundamental rights. People who are victims of torture, inequality, or discrimination must have greater access to the court system. They must have justice. How does increasing the retirement age of judges give greater access to justice?

There is much more to be done if you really want to make things easier for the average person. For example, we need to reform our family law. If a person married under the general law wants to get a divorce, they have to establish marital fault. They can’t obtain a divorce simply on the basis of consent or irreparable breakdown of the marriage. 

Now, if you relax the divorce laws, people can file their divorce cases; some people have to get into the witness box and their cases are heard in public. Why don’t you ease these things? That is how you make justice more accessible. 

There is much that can be done. How many people are convicted by our courts because they don’t have proper legal advice? Should we not expand the justice sector and invest more in it? Invest in legal aid; the public deserves a better legal aid system. Look at how understaffed and underpaid legal aid is today. We should improve the justice system. Due process is most important for the average citizen.

The backlog in the judicial system is well known. Are you of the view that the 22nd Amendment, if enacted, will have little effect on it? After all, aren’t most of the caseloads in lower courts? 

Actually, the biggest bottleneck is in the Magistrate’s Courts and the District Courts, which account for about 95% of the cases.

For those judges, retirement age has nothing to do with it because the youngest magistrates must be in their early 30s, while the older ones may be around 50–55, so they still have many years before retirement. Therefore, extending the retirement age doesn’t help them. What you do need to do is establish more courthouses, have more staff and facilities, and simplify the procedures. 

A study has shown that there are 32 places on a document which require the physical signature of a judge when a fine is levied. Imagine having to sign in 32 different places. If we do away with some of these archaic processes, I’m sure we can speed up the system. 

For instance, a Judicial Medical Officer (JMO) in Colombo who is transferred to Embilipitiya must come all the way to Colombo to give evidence in a case that the JMO handled during his time in Colombo. Think of the time and effort that this takes. Surely, we can introduce new mechanisms and systems to help ease such situations. 

Over time, we have not invested in the justice system. There have been some attempts and some ministers have made efforts, but overall, we need to better resource the justice system.                      

However, I feel that if you really want to reduce the backlog and ensure access to justice, there are many things which need to happen at the same time. A lot of reform needs to take place simultaneously. 

There also needs to be serious capacity building for forensic services and the Attorney General’s (AG) Department. Many experienced prosecutors have retired from the department over time and there is a significant shortage of personnel there. There is no purpose in creating another office for public prosecution while the AG’s Department remains understaffed and under-resourced.

One of the issues that plague cases is the quality of the investigation and evidence presented. What are your views on improving the status quo? 

Of course, part and parcel of justice sector reform must be reforming the criminal justice process. There are capacity gaps in investigations within the Police and at the Government Analyst’s Department. Justice reforms must also include such sectors. It starts at the investigation stage. 

Because, however much people clamour for convictions, unless investigations are conducted properly and impartially, there will always be questions about the legitimacy of these investigations. Therefore, you must not only have good investigators; they must also be independent and impartial. 

However, if they are not independent and impartial, then someday the legitimacy of those investigations may be called into question. In other countries, certain sentences have been rolled back because investigations have been found to be impartial.

What are your thoughts on reducing the number of remandees and reducing prison overcrowding? 

I really do think that people are unnecessarily kept on remand because the prosecution seeks to remand people. That is extremely unfair because remand ought not to be a punishment. Although the law says it should not be a punishment, we know that, for all practical purposes, remand is a punishment. 

And so, remanding a person must be the exception; the law also says it must be the exception. But I think here we have a problem where, sometimes, the Police, as a matter of course, asks for a person to be remanded. There is also the question of how some Magistrate’s Courts respond to such requests by the Police. The way they react to Police applications is variable. 

As a result, we sometimes find that people have been remanded unnecessarily. In fact, the Supreme Court has made observations that people should not be unduly remanded. I think the 2022 amendment to the Poisons, Opium, and Dangerous Drugs Ordinance has complicated the situation.

Given systemic issues concerning the behaviour of Police officers and law enforcement agencies in investigating crimes, do you think Sri Lanka needs a Police officers’ guide – perhaps drafted by the National Police Commission (NPC) and stakeholders – on how and when a Police officer should exercise the powers vested in them through their warrant, and what rights and responsibilities an ordinary citizen has? 

Drafting regulations is actually part of the NPC’s role. The Police Ordinance, Police regulations, and Police orders exist, and inspectors general have issued circulars from time to time. But the question remains as to what extent they are followed. There is also the issue of training: is there enough of it? The need to effect a change in the mindset of officers should also be considered.

Given the Government’s move to press ahead with such changes to the 22nd Amendment and remarks by several senior Government figures that they are not ready to relinquish power until 20 years have passed, are you concerned that they may be slowly moving towards ‘state capture’?

I would not say that I think the intention of the Government leadership in bringing the 22nd Amendment is state capture. I wouldn’t go that far yet. But I see the risks involved in the 22nd Amendment, and not only in the 22nd Amendment, but in certain other laws as well.  

I see the risk of what it could lead to, whether under this Government or another government. The danger is that when you are in power, you feel that you can continue to remain in power. In 1982, J.R. Jayewardene said that it was time to roll up the electoral map for another 10 years. But we know what happened to the country between 1982 and 1994, the price the country paid, and the price we are still paying today. 

So when people in power say that they will be in power for 20 or 40 years, I think we must take it with a pinch of salt, because we can never predict the future. But at the same time, there are risks when you seek to entrench yourself in power.