By Vox Civis
There is a growing unease in Sri Lanka that something larger may be taking shape beneath the surface of the Government’s increasingly controversial programme of constitutional, legal and institutional change. It is an unease that should neither be dismissed as conspiracy theory nor accepted uncritically as established fact. In a democracy, particularly one with Sri Lanka’s history of constitutional manipulation, ethnic conflict and executive overreach, the more appropriate response is to ask a simple but fundamental question: what exactly is the Government trying to achieve, and why are so many of these changes – some of which no one asked for – being pursued now?
That question has acquired renewed urgency because a number of developments which, on their face, appear unrelated are beginning to converge. There is the proposed constitutional amendment concerning the retirement ages of Supreme Court and Court of Appeal judges. There are proposed changes to the judicial structure. There is continuing discussion about the implementation of the 13th Amendment and the long-delayed Provincial Council elections.
There is also renewed attention on the land held by the military in the North and East. There is increasing Indian engagement with Colombo. And there is a broader programme of institutional legislation which, while often justified as efficiency, accountability and reform, has generated concern about whether the State is simultaneously acquiring greater power over institutions that are supposed to constrain it.
None of this, by itself, proves the existence of a secret master plan. But neither does the absence of proof of a master plan mean that citizens should stop asking questions.
Persistent questions
Indeed, the secrecy surrounding some aspects of the Government’s relationship with India has made the questions more persistent. Successive governments have entered into agreements and understandings with New Delhi, and not every bilateral arrangement is necessarily sinister or even controversial. Yet transparency matters. When agreements are not adequately explained to the public, speculation inevitably fills the vacuum.
The recent visit of Indian Foreign Secretary Vikram Misri to Colombo has therefore attracted particular attention. During his August visit, India is reported to have reiterated the importance of holding Provincial Council elections at the earliest and of fully implementing Sri Lanka’s constitutional provisions addressing the aspirations of the Tamil people. The two sides are also reported to have discussed bilateral projects, the India-Sri Lanka Free Trade Agreement, social security arrangements, fisheries and energy cooperation.
Those are legitimate subjects for bilateral diplomacy. There is nothing improper about India advocating the interests of Tamil citizens in Sri Lanka or encouraging the implementation of constitutional provisions. Nor is there anything improper about Colombo deepening its relationship with its most important regional neighbour. What is improper is for the Sri Lankan public to be left wondering what exactly is being discussed behind closed doors.
The irony is impossible to ignore. The JVP that now governs Sri Lanka spent much of its history cultivating an intensely nationalist and, at times, explicitly anti-Indian political posture. The JVP’s opposition to the Indo-Lanka Accord and the Indian military presence was central to the political environment that produced the violent upheaval of the late 1980s, which beside the loss of life, pushed the country back by decades. Yet the political formation that emerged from that tradition is now presiding over a much closer relationship with New Delhi than any of the previous governments. And, it is this sudden coziness that is feeding speculation.
Unexplained transformation
The transformation is not necessarily a contradiction. Political parties evolve. Governments have responsibilities that opposition movements do not. Foreign policy cannot permanently remain imprisoned in the ideological positions of the past. But because the transformation is so profound, and shrouded in secrecy, the public is entitled to ask for clarity.
What agreements have been signed? What commitments have been made? What are their financial and strategic implications? What has Sri Lanka agreed to regarding energy, infrastructure, connectivity, trade, security, fisheries, devolution and the ethnic question? Which commitments are legally binding and which are merely political understandings? These are not anti-Indian questions. They are questions of sovereignty and democratic accountability. And this is where the Government’s handling of the judicial question becomes especially troubling, because that too was shrouded in secrecy until a few weeks ago.
The proposal to increase the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65 has been presented principally as part of a wider effort to address Sri Lanka’s enormous judicial backlog and improve the efficiency of the justice system. The problem is not the abstract proposition that judges should retire at a particular age. The problem is changing the rules for judges who are already serving while politically consequential cases are before them.
Controversial path
That distinction is fundamental. If the Government genuinely believes that superior court judges should retire at 67 rather than 65, there is a straightforward and politically less damaging solution: make the change applicable to future appointments. Judges appointed after the new rule takes effect would serve under the new retirement age. The existing judges would complete their tenure under the rules that existed when they were appointed. Such an approach would immediately remove much of the suspicion surrounding the amendment.
Instead, the Government has chosen the more controversial path. That has consequences which extend far beyond the technicalities of constitutional law. The judiciary does not derive its legitimacy merely from the correctness of its judgments. It derives legitimacy from public confidence that judges are independent, impartial and insulated from political pressure. A judgment may be legally impeccable, but if a substantial portion of society believes that the judge was retained in office for political reasons, the damage to public confidence can be profound. Justice must not only be done. It must manifestly be seen to be done.
This is where the principle traditionally expressed in the Latin maxim nemo judex in causa sua becomes relevant to the public debate. The maxim captures the basic principle that no person should determine a matter in which he or she has a personal interest. Whether that principle legally requires recusal of judges considering a constitutional challenge concerning their own retirement age is ultimately a matter for constitutional and procedural law. But politically and institutionally, the appearance of such a conflict cannot simply be brushed aside.
It is because perception matters that the call for an appropriately constituted and broadly representative bench deserves serious consideration. The Government may ultimately win the legal argument. It may even secure the required parliamentary majority and could survive a referendum if one becomes necessary. Yet it can still lose the larger political argument.
Dangerous consequences
That is because the most dangerous consequence of the proposed amendment is not necessarily what it does to the tenure of two or three judges; it is what it does to the credibility of judgments delivered by those judges.
Suppose, several years from now, a prominent opposition politician is convicted in a politically sensitive case. If the Government has meanwhile succeeded in extending the tenure of judges whom sections of the public already suspect of being sympathetic to its political agenda, how easily will the Government be able to persuade the public that the conviction was entirely independent of politics?
The Government may insist that the judge acted solely on the evidence. The opposition will say otherwise. Social media will amplify both claims. And the public will be left with a judiciary whose institutional credibility has become part of the political battlefield. That is a terrible outcome for any democracy.
It is also why the Government should understand the extraordinary coalition that has emerged against its proposal. Opposition parties have opposed it. Civil society organisations have raised concerns. Lawyers and legal organisations have expressed reservations. Sections of the religious establishment that once regarded the NPP with considerable sympathy have become increasingly uneasy. The Government should not underestimate what that means.
The NPP came to power promising a new political culture. Its greatest political asset was that it was not the old establishment. It represented a rejection of the familiar habits of political power: patronage, impunity, institutional manipulation and the arrogance of majorities. The danger is that it may now be judged against the very same standards it used to judge its predecessors. That is the paradox of power.
Temptation of power
A party can spend decades warning that the Constitution must not be manipulated for political purposes. Once it acquires power, however, it discovers how tempting constitutional manipulation can become. And once that precedent is established, it does not belong to the Government that created it. It belongs to every government that comes afterwards. That is the deeper danger.
The same concern applies, albeit differently, to the Government’s broader legislative programme. The proposed replacement for the Prevention of Terrorism Act (PTA), reforms to the anti-corruption framework and changes to judicial administration can all be justified in principle. Sri Lanka needs stronger institutions, more effective criminal justice, better mechanisms for combating corruption and a modern security framework that respects fundamental rights. The issue is not whether reform is necessary; it is whether reform is being designed to strengthen the State or to strengthen whoever happens to control the State.
Even anti-corruption legislation can become controversial if provisions governing access to asset declarations are drafted so broadly that journalists, civil society organisations and citizens are effectively prevented from scrutinising information that was intended to be publicly available. The Government has subsequently indicated that it would revise contentious provisions. That willingness to correct course is welcome. But the episode demonstrates something important: transparency cannot be treated as an inconvenience in a government elected on a platform of clean politics.
If politicians demand greater powers to investigate corruption, the public is entitled to demand greater powers to scrutinise politicians. If the State acquires greater powers to prosecute, citizens must have stronger safeguards against selective prosecution. And, if the Government says that it is pursuing an unprecedented war against corruption, then that war must be visibly even-handed.
The perception that some individuals are being pursued relentlessly while allegations involving politically connected persons are treated with considerably less urgency would be devastating, but all indications thus far appear to be pointing to exactly that.
Questionable priorities
Be that as it may, the Government’s present priorities are becoming increasingly difficult to understand. Why, because Sri Lanka’s greatest national emergency at this point in time is not constitutional architecture, it is economic vulnerability. The IMF programme has given the country something it desperately needed: stability and breathing space. The economy has moved a considerable distance from the catastrophe of 2022. But stabilisation is not growth, nor prosperity.
The IMF’s projections envisage a substantial rebuilding of reserves over the medium term. Its March 2026 review projected gross official reserves rising from about US$6.8 billion to US$8.6 billion in 2027, US$11.8 billion in 2028 and almost US$14 billion thereafter. Independent IMF work has also pointed to a reserve requirement of more than US$14 billion as a benchmark associated with adequate reserve coverage.
These numbers expose the scale of the challenge. Sri Lanka cannot spend the next two years congratulating itself for having survived 2022. Survival is not the destination. Debt repayments will eventually return with full force. The IMF programme itself is not a substitute for a growth strategy. The country needs exports, investment, tourism, remittances, productivity and jobs. Above all, it needs an economy capable of generating foreign exchange faster than its external obligations consume it.
This is where the Government’s political priorities appear increasingly disconnected from the country’s economic priorities. One is given to wonder whether constitutional reform is being used as a substitute for economic reform.
A government can spend enormous political capital debating judges, courts, commissions and constitutional provisions. But none of these, by themselves, will increase exports. None will attract a single additional tourist. None will create a new manufacturing industry. None will generate the foreign exchange needed to service external debt in 16 months.
Desperate need for real growth
Sri Lanka desperately needs a growth rate capable of transforming living standards, not merely producing favourable headlines. The Government must therefore concentrate on the fundamentals: private investment, export competitiveness, energy security, tourism, technology, agriculture, logistics, education and skills. It must make Sri Lanka easier – not harder – to invest in.
Investors do not merely examine tax rates, they examine institutions, they examine whether the judiciary is independent, they examine whether regulations can be changed arbitrarily, they examine whether political connections matter, they examine whether the rule of law is predictable. And tourists, too – the Western high spenders – are ultimately attracted not merely by beaches and wildlife but by the confidence that comes from a stable, open and functioning society.
A government that strengthens its institutional credibility strengthens its economy. A government that weakens that credibility, even unintentionally, risks doing the opposite. This is why the analogy of Nero fiddling while Rome burned is becoming increasingly relevant. The wolf is not yet necessarily at the door in the way it was in 2022, but Sri Lankans remember only too well how quickly political legitimacy can crash when economic pain becomes unbearable.
Political loyalty is remarkably elastic when the household budget breaks. The NPP should remember this. It cannot eat its parliamentary majority. It cannot pay creditors with social-media popularity. It cannot rebuild reserves with rhetoric. And it cannot blame the previous Government forever. At some point every Government inherits responsibility for the present; the NPP is already two years too late to the party.
The proposed constitutional amendment has already achieved something that perhaps the Government never intended: it has transformed the debate about judicial retirement into a debate about the character of the State itself. Is this Government attempting merely to modernise institutions, or is it beginning to discover the seductive possibilities of institutional power?
If the NPP establishes the principle that constitutional arrangements may be altered to suit the immediate requirements of the government of the day, it will have created a weapon that its political opponents can one day wield against it.
The Government has a choice. It can continue to expend its political capital on constitutional tinkering, institutional restructuring and battles over judicial tenure, while allowing suspicion to deepen around its motives. Or it can recognise that the greatest threat to its political future is the economy. Because when the economy works, governments acquire political space and when the economy fails, political space disappears. That is the lesson of 2022.
Disclaimer: The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication.
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