In September 2024, on the eve of a historic Presidential Election, the great majority of Sri Lankan voters had already made up their minds. The frontrunner was, in fact, the race’s dark horse: Anura Kumara Dissanayake (AKD), riding a wave of public hunger for change. As the second anniversary of that vote approaches, few of the roughly 5.7 million people who backed him could have imagined they would, so soon, be forced to question their own decision.
Though AKD won the presidency, he failed to cross the 50% threshold outright, becoming the first Sri Lankan president elected with a minority of the vote – 42%. That, in effect, meant that a majority, some 58% of voters, had preferred someone else for the role. As events unfold, it is that majority that may increasingly be entitled to say, “we told you so”.
Those who voted for AKD did so for two specific reasons. The first was a yearning for change after decades of the same political families. The second was a genuine belief that the JVP had transformed itself into a modern, democratic party, with AKD himself cast as the champion of democratic governance. Two years on, that belief looks increasingly difficult to sustain.
Over the past two years, the NPP has made little secret of the fact that its ambitions were never confined to winning government; they extended to capturing the State itself – no longer a matter of speculation but a well-documented pattern. Democratic governance rests on the fundamental principle of keeping the State separate from the government of the day, and it is that very boundary the NPP has worked systematically to erase. From the Secretary to the President downwards, numerous key State institutions are now led by NPP loyalists who have made little effort to disguise where their allegiances lie.
All of this represents genuinely uncharted territory for Sri Lanka, made more striking by the fact that it is the very same JVP/NPP combine that consistently cried foul whenever such practices – on a much lesser scale – were attempted by others. Having effectively brought every other critical pillar of the State under its control, the NPP’s last remaining frontier was the Judiciary. In recent weeks, even that frontier has come under open assault, with blatant attempts to compromise judicial integrity proceeding even as every legal association in the country, alongside influential global institutions, sound the alarm.
The NPP’s justification for this steady annexation of the State has been that it received an overwhelming electoral mandate and can therefore act as it pleases. But that is not how democracy is meant to work. A mandate is given for what was promised, not for whatever a government subsequently decides to do. Nowhere in the NPP’s manifesto has it been stated that party cadres would occupy the apparatus of State or that the Judiciary would be reshaped to suit the regime’s convenience. A mandate, in other words, is not a blank cheque.
If the mandate is truly the operative word here, then the NPP’s first obligation is to deliver what it solemnly promised the electorate: abolishing the executive presidency and introducing a new constitution. That is what the mandate was for, and not for tinkering with the Judiciary and handpicking who sits in judgment.
The manner in which the 22nd Amendment to the Constitution has moved through the system carries all the hallmarks of an undemocratic process. Speed alone is the biggest giveaway that the motives behind it are less than noble. Cabinet approval for amendments to both the Constitution and the Judicature Act arrived, without warning, on 27 July. The Legal Draftsman appears to have prepared the bills, the Attorney General cleared them for constitutional compliance, and Cabinet approved gazetting with striking urgency on 3 August. The bill for the 22nd Amendment was duly gazetted on 7 August, meaning just 11 days elapsed between the Cabinet decision and its publication in the gazette.
Despite Sri Lanka’s official designation as a ‘Democratic Socialist Republic,’ there was no public consultation of any kind – no civil society input, no academic scrutiny, no engagement with judicial associations – on whether the Supreme Court judges’ retirement age should rise from 65 to 67, whether the Court of Appeal judges’ age should move at all, or whether a separate six-year cap should govern the Chief Justice’s tenure.
Instead, from the Mahanayakas and Buddhist clergy to almost every credible legal association at home and abroad, and the collective political Opposition, the answer has been a near-unanimous ‘no’. Yet, Justice Minister Harshana Nanayakkara announced that the 22nd Amendment along with the Judicature Act amendment would be tabled in Parliament on 18 August: the entire process, from Cabinet approval to parliamentary tabling, compressed into barely three weeks and conducted almost entirely within the Presidential Secretariat and the Attorney General’s Department.
What ought to trouble the public most is that the President himself has effectively conceded there is real risk in what he and his Government has chosen to do – and that the risk in question concerns the Judiciary, arguably the most consequential organ of the State. Speaking after a meeting with the President on the proposed amendment, BASL President Rajeev Amarasuriya put it plainly: “If the President himself believes there is risk involved, that alone should be reason enough to halt the process, since some risks – however tempting – are simply not worth taking when judicial independence hangs in the balance.”
That concern has not remained a domestic one. In a communication dated 7 August, UN Special Rapporteur on the independence of judges and lawyers Margaret Satterthwaite warned the Sri Lankan Government that the proposed amendment may sit uneasily with international human rights standards on judicial independence and the right to a fair trial – obligations Sri Lanka has undertaken under the ICCPR. She noted that the change was understood to apply not merely to future appointees but to sitting judges, a detail that omitted transitional safeguards and risked creating the perception that the amendment existed to benefit particular individuals rather than to establish a neutral, generally applicable rule.
She further flagged the uncomfortable possibility that judges who stood to benefit from an extended tenure could later be called upon to rule on the constitutionality of the very amendment that extended it. The Government’s defenders will point out, fairly, that Sri Lanka’s courts are genuinely overburdened, with well over a million cases pending, and that retaining experienced judges is not in itself an illegitimate goal; Satterthwaite herself acknowledged as much. But a legitimate goal pursued through an illegitimate process does not become legitimate by virtue of its stated purpose.
If retaining judicial expertise were truly the driving concern, there was no need for a process confined to the Presidential Secretariat and completed in three weeks, no need to bypass the Bar Association, the Judiciary’s own associations, and civil society, and certainly no need to apply the change to judges already sitting on the bench – which is what is inviting suspicion of an ulterior motive.
Asked previously why existing vacancies in the superior courts had not been filled, the President had reportedly suggested that the fault lay with the Chief Justice for not forwarding names. Yet in explaining the retirement age amendment during the meeting with the BASL, he spoke as though the relevant decisions were his alone to make.
The constitutional process is neither ambiguous nor accidental: the Chief Justice recommends names, the President selects from that list and forwards it to the Constitutional Council, which reviews and returns recommendations, since the President remains the formal appointing authority for judges of the two apex courts.
That layered process exists because Sri Lanka has, in the past, learnt the cost of leaving such decisions to individuals rather than institutions. A functioning legal system cannot depend on which particular judges happen to be hearing a case at a given moment. People come and people go; the system has to endure regardless.
The refrain bears repeating, because it is the crux of the matter: the mandate was given for what was promised – abolish the executive presidency and bring in a new constitution. That is the mandate the NPP asked for and received – not a free hand to reshape who sits in judgment over the nation. The President has said the decision was taken in the common interest, not for any individual or group. If that is genuinely so, one is entitled to ask where the common consultation has been, and why the haste.
Haste, as the saying goes, makes waste – and in this instance, what is at risk of being wasted is public confidence in an independent Judiciary. The Constitution belongs to the people, not to any government that happens to hold office at a given time. Democracy survives only for as long as the people, and not the Executive, remain supreme.