JUSTICE MUST RETURN TO THE JUDGES – WHEN THE AUTHORITY OF THE JUDICIARY IS WEAKENED, THE PEOPLE LOSE THEIR FINAL PROTECTION

 

A Judiciary does not exist to please a Government. It does not exist to please an Opposition, prosecutors, politicians, activists, media personalities, public opinion or foreign governments.

THE JUDICIARY EXISTS TO ADMINISTER JUSTICE ACCORDING TO THE CONSTITUTION AND THE LAW. But judicial independence does not begin only inside the courtroom. It begins with the institution itself. How judges are selected? How they are trained? How they rise? What professional experience takes them to the highest court? Who appoints them? And who determines which judges hear important cases? There is an even more fundamental question:

IS THE SUPREME COURT THE PINNACLE OF A JUDICIAL CAREER — OR CAN IT BECOME THE DESTINATION OF A CAREER SPENT REPRESENTING THE STATE? This is not an accusation against individual judges. It is a question about institutional design. Because if we genuinely want an independent Judiciary, we must examine not only how judges decide cases — but how we build the judges who decide them.

 

WHY THIS QUESTION MATTERS NOW

Sri Lanka is again confronting questions about judicial appointments, judicial tenure, bench composition, the relationship between the Judiciary and the Attorney-General’s Department, and public confidence in judicial decision-making.

 

The proposed Twenty-Second Amendment has brought these questions sharply into focus.

It proposes changes to the retirement ages of superior court judges, a six-year limit for the Chief Justice, and an increase in the number of Court of Appeal judges.

These changes raise important questions about judicial tenure, bench composition and judicial independence, particularly because the proposed Chief Justice provision directly affects the incumbent.

The Bill has also been challenged before the Supreme Court, where concerns have been raised about bench composition, recusal and procedural fairness.

 

THESE ARE NOT ACCUSATIONS AGAINST INDIVIDUAL JUDGES.

But they raise a fundamental question:

ARE SRI LANKA’S INSTITUTIONAL SAFEGUARDS STRONG ENOUGH TO PROTECT THE JUDICIARY — REGARDLESS OF WHO HOLDS POLITICAL POWER?

 

FROM COLONIAL COURTS TO THE MODERN JUDICIARY

Sri Lanka’s judicial system developed through colonial rule, independence, republican constitutional change and repeated constitutional amendments.

That history matters because judicial power has always been connected to constitutional structure.

• 1801 — The British established the Supreme Court of Judicature in Ceylon.
• 1833 — Reforms reorganised the judicial structure and established an island-wide Supreme Court.
• 1948 — Independence retained much of the inherited judicial structure under the Soulbury Constitution, while the Judicial Service Commission provided an institutional framework for the administration of the lower judicial service.
• 1972 — The Republican Constitution declared the National State Assembly the supreme instrument of State power. Judicial review of legislation was removed and the constitutional position of the superior courts was substantially altered.
• 1978 — The Executive Presidential system was established. Under the original Constitution, appointments to the Supreme Court and Court of Appeal were made by the President, while judges remained subject to constitutional safeguards concerning removal.

 

This created an important distinction:

THE JUDICIAL SERVICE PROVIDED A STRUCTURED JUDICIAL CAREER — WHILE THE HIGHER JUDICIARY OPERATED THROUGH A SEPARATE CONSTITUTIONAL APPOINTMENT FRAMEWORK.

And so we must ask:

WHO BUILDS THE JUDGES WHO EVENTUALLY REACH THE HIGHEST COURT?

 

The lesson from this history is simple:

JUDICIAL INDEPENDENCE CANNOT DEPEND UPON THE GOODWILL OF THE GOVERNMENT IN POWER.

Nor can it depend upon the personality of the President, Chief Justice, Attorney-General or any individual judge.

Governments change.

Presidents change.

Ministers change.

Chief Justices change.

Judges change.

Political majorities change.

THE SYSTEM MUST BE STRONGER THAN THE PEOPLE WHO TEMPORARILY OCCUPY ITS OFFICES.

That is why appointment safeguards matter.

But appointment is only one aspect.

 

THE CONSTITUTION HAS KEPT CHANGING

The appointment framework itself has repeatedly changed.

• 17th Amendment — 2001: Constitutional Council introduced.
• 18th Amendment — 2010: Constitutional Council abolished and replaced by a Parliamentary Council.
• 19th Amendment — 2015: Constitutional Council restored.
• 20th Amendment — 2020: Presidential authority expanded and the Constitutional Council mechanism was altered.
• 21st Amendment — 2022: Constitutional Council restored.

 

Who controls or participates in judicial appointments has therefore repeatedly been a constitutional and political question.

But appointment is only one part of independence.

The larger question is:

WHO IS BEING ELEVATED TO THE HIGHER JUDICIARY — AND THROUGH WHAT PROFESSIONAL PATH?

 

THE ATTORNEY-GENERAL’S DEPARTMENT AND THE HIGHER JUDICIARY

The Attorney-General’s Department has played an important role in Sri Lanka’s judicial history.

Its officers have historically gone on to occupy senior judicial office, including the offices of Chief Justice and judges of the Supreme Court and Court of Appeal.

Some senior judges have therefore entered the Judiciary after long careers within the State’s legal service.

That fact is neither inherently wrong nor evidence of bias.

SERVICE IN THE ATTORNEY-GENERAL’S DEPARTMENT DOES NOT DISQUALIFY ANYONE FROM BECOMING AN INDEPENDENT JUDGE.

Nor does previous State service establish future judicial bias.

 

The issue is different.

It is about professional formation and institutional diversity.

The Attorney-General’s Department represents and prosecutes for the State.

The Judiciary adjudicates disputes independently — including disputes between citizens and the State.

Therefore:

• THE PROSECUTOR ADVANCES THE CASE OF THE STATE.
• THE JUDGE DETERMINES THE DISPUTE.
• THE PROSECUTOR REPRESENTS A PARTY.
• THE JUDGE MUST STAND ABOVE THE PARTIES.

The question is therefore not whether a former prosecutor can become an independent judge.

Of course one can.

The question is:

SHOULD THE SYSTEM DEPEND SO HEAVILY ON ANY SINGLE PROFESSIONAL PIPELINE TO PRODUCE ITS HIGHEST JUDICIAL OFFICERS?

 

THE DIFFERENCE IS PROFESSIONAL FORMATION

A former State prosecutor is not necessarily biased.

A career judge is not automatically independent.

But professional formation matters.

A prosecutor is trained to build and advance a case.

A judge is trained and experienced in hearing both sides, testing evidence, assessing witnesses, managing proceedings and deciding disputes.

ONE ADVANCES A CASE.

THE OTHER MUST DECIDE IT.

 

A career judge who rises through the Judicial Service can accumulate years of experience hearing cases, assessing evidence, dealing with litigants and lawyers, managing courts and making decisions in which the State itself may have to be told:

NO.

 

A prosecutor’s professional experience is different.

The prosecutor is accustomed to presenting the State’s case, establishing charges and defending the State’s position.

Neither role is wrong.

Neither profession is inherently superior.

But the experiences are not identical.

And that difference becomes particularly important when considering appointments to the higher Judiciary.

The concern is not necessarily bias.

 

THE CONCERN IS WHETHER THERE IS SUFFICIENT JUDICIAL FORMATION.

At the Supreme Court, judges may have to determine whether Government action is lawful, whether State power has been exceeded, whether a citizen’s rights have been violated, or whether the State’s own case has failed.

That requires more than being an excellent lawyer.

IT REQUIRES THE MINDSET, EXPERIENCE AND RESPONSIBILITY OF A JUDGE.

 

HOW SHOULD WE BUILD A JUDGE?

There are three principal professional pathways from which members of the higher Judiciary may emerge:

 

1. THE JUDICIAL PATH

Judicial Service → Magistrate/District Judge → High Court → Court of Appeal → Supreme Court

 

2. THE STATE PROSECUTION PATH

State Counsel → Senior State Counsel → Deputy Solicitor General → Additional Solicitor General → Solicitor General/Attorney-General → Higher Judiciary

 

3. THE PRIVATE BAR PATH

Attorney-at-Law → Private Practice → Higher Judiciary

None of these pathways is inherently disqualifying.

 

The question is whether the composition of the higher Judiciary provides the right balance of:

• Judicial experience
• Professional diversity
• Independence
• Institutional knowledge
• Experience in adjudication

 

There is a fundamental difference between:

BUILDING JUDGES

and

SELECTING LAWYERS TO BECOME JUDGES.

 

Judges require knowledge not only of law, but of courts, litigants, evidence, procedure, judicial responsibility and the pressures placed upon courts.

This does not mean excluding outstanding members of the private Bar.

It does not mean questioning the integrity of former prosecutors.

It means asking whether Sri Lanka should strengthen the judicial career pathway from the bottom upward, while retaining appropriate diversity of experience.

 

The principle should be:

• LET PROSECUTORS PROSECUTE.
• LET LAWYERS ARGUE.
• LET JUDICIAL EXPERIENCE MATTER.
• LET THE JUDICIAL SERVICE BE A GENUINE PATHWAY TO THE HIGHEST COURT — WHILE ENSURING THAT OTHER QUALIFIED PATHWAYS ARE NOT ARBITRARILY EXCLUDED.

That is not an argument for closing the Judiciary.

It is an argument for building stronger judges.

 

WHO DECIDES WHO SITS?

Judicial independence concerns not only who becomes a judge.

It also concerns how important cases are assigned to benches.

 

Where a case carries exceptional constitutional or public importance, the manner in which a bench is constituted can affect public confidence.

This does not mean every departure from seniority is improper.

Nor does seniority alone determine competence.

And the authority to constitute benches must remain within the constitutional and legal framework governing the Court.

 

But when legitimate questions arise about why particular judges were selected and others were not, the public interest requires a system whose principles can be understood and defended.

The question is:

WHO DECIDES WHO SITS — AND ACCORDING TO WHAT PRINCIPLES?

 

The recent 22nd Amendment proceedings demonstrate why this matters.

The Commonwealth Lawyers’ Association observed the proceedings and subsequently raised concerns concerning the refusal of a request for a larger or full bench, the recusal issue and procedural fairness.

It expressly stopped short of suggesting that the Chief Justice was in fact biased.

That distinction is essential.

A QUESTION ABOUT PROCESS IS NOT A FINDING OF MISCONDUCT.

But neither should legitimate questions about process be dismissed merely because they are uncomfortable.

TRANSPARENCY IN BENCH CONSTITUTION IS NOT AN ATTACK ON JUDICIAL AUTHORITY.

It can strengthen judicial authority.

The objective is not to dictate which judges must hear a case.

It is to ensure confidence that the Court — not politics, personalities or institutional interests — determines the outcome.

 

INDEPENDENCE MUST EXIST — AND BE SEEN TO EXIST

Judicial independence means more than the absence of direct political interference.

It also requires public confidence that judges can decide cases without fear of political power, institutional pressure, career consequences, media campaigns or public intimidation.

 

A judge should never have to wonder:

• What will the Government think?
• What will the President think?
• What will happen to my career?

The moment decisions are influenced by consequences outside the law, independence is weakened.

 

And that applies not only after appointment.

IT APPLIES TO THE CAREER STRUCTURE THAT LEADS TO APPOINTMENT.

Independence must therefore be protected at every stage:

• SELECTION
• APPOINTMENT
• TENURE
• PROMOTION
• BENCH CONSTITUTION
• DECISION-MAKING
• ACCOUNTABILITY

 

NO ONE SHOULD SUBSTITUTE THEMSELVES FOR THE COURT

Cases before courts increasingly become subjects of political commentary, social media campaigns and predictions.

People may disagree with judgments.

They may criticise them.

They may appeal where the law permits.

They may challenge judicial conduct through lawful mechanisms.

But one principle must remain:

NO ONE OUTSIDE THE JUDICIAL PROCESS SHOULD SUBSTITUTE THEMSELVES FOR THE COURT.

Not politicians.

Not Government officials.

Not Opposition politicians.

Not activists.

Not media personalities.

Not foreign representatives.

THE COURT MUST REMAIN THE INSTITUTION THAT DECIDES.

But the principle applies in reverse.

Public criticism of the Judiciary must not become an attempt to dictate what judges should decide.

• SCRUTINY IS LEGITIMATE.
• INTIMIDATION IS NOT.
• CRITICISM IS LEGITIMATE.
• PRE-JUDGING THE COURT IS NOT.
• ACCOUNTABILITY IS LEGITIMATE.
• POLITICAL CONTROL OF JUSTICE IS NOT.

 

THE GOVERNMENT MUST NOT BECOME THE JUDGE

Today’s Government becomes tomorrow’s Opposition.

Tomorrow’s Government becomes today’s Opposition.

But the Judiciary must remain.

Its constitutional purpose is to provide an institution capable of adjudicating disputes between power and the citizen.

If citizens cannot trust that disputes involving State power will be decided independently according to law, one of their most important protections is weakened.

THAT IS NOT MERELY A POLITICAL PROBLEM.

IT IS A CONSTITUTIONAL PROBLEM.

 

WHEN SEPARATION OF POWERS LOSES ITS MEANING

The Executive governs.

Parliament legislates.

The Attorney-General’s Department represents and prosecutes for the State.

The Judiciary adjudicates.

These institutions necessarily interact.

But they must not become indistinguishable.

WHEN INSTITUTIONS DESIGNED TO CHECK POWER BECOME DEPENDENT UPON THE POWER THEY ARE SUPPOSED TO CHECK, THE RULE OF LAW IS PLACED AT RISK.

A Constitution may contain all the right words.

Courts may exist.

Laws may exist.

Institutions may exist.

But if citizens lose confidence that disputes involving State power will be decided independently, constitutional protection becomes weaker in practice.

THAT IS THE DANGER WE MUST PREVENT.

 

WHAT DO THE CURRENT CONTROVERSIES ACTUALLY TELL US?

The present debate should not be reduced to the claim that a Government has already captured the Judiciary.

That conclusion would require evidence.

 

The current constitutional debate deserves something more serious:

SCRUTINY.

The proposed Twenty-Second Amendment would alter the retirement ages of judges of the superior courts, establish a new retirement rule for the Chief Justice and expand the permitted number of Court of Appeal judges.

The Government says the wider objective is to address judicial delays and strengthen capacity.

Those objectives may be legitimate.

But legitimate objectives do not remove the need for institutional safeguards.

 

The proposed changes therefore raise legitimate questions:

• Who determines judicial tenure?
• What safeguards protect judicial tenure from political manipulation?
• What criteria will govern additional appointments?
• Why is the Court of Appeal being expanded?
• How transparent will future appointments be?
• What safeguards prevent any Government from acquiring excessive influence over the future composition of the Judiciary?
• What happens when a constitutional change directly affects the tenure of sitting judges who must consider its constitutionality?

 

These are not accusations.

THEY ARE SAFEGUARDS THAT SHOULD EXIST BEFORE INTERFERENCE OCCURS — NOT AFTER.

 

The Commonwealth Lawyers’ Association has itself emphasised that public confidence in judicial independence and impartiality is fundamental to the rule of law.

Therefore:

THE TEST OF JUDICIAL INDEPENDENCE IS NOT ONLY WHETHER INTERFERENCE HAS ALREADY BEEN PROVED.

THE TEST IS WHETHER THE SYSTEM MAKES IMPROPER INTERFERENCE DIFFICULT, VISIBLE AND INSTITUTIONALLY COSTLY.

 

WHAT MUST WE EXAMINE?

If we are serious about judicial independence, we need evidence — not assumptions.

We must examine:

 

THE JUDGES

Their professional histories and career pathways.

 

THE APPOINTMENTS

Who appointed them, under which constitutional framework and with what safeguards?

 

THE CAREER STRUCTURE

How many came through the Judicial Service?

How many came from private practice?

How many came from the Attorney-General’s Department?

 

THE BENCHES

Who constitutes benches in constitutionally significant cases?

What principles govern selection?

Are those principles consistent, lawful and capable of public explanation?

 

THE PROSECUTION–JUDICIARY INTERFACE

How frequently do senior State prosecutors move into the higher Judiciary?

Does the system maintain sufficient professional diversity?

 

THE TENURE STRUCTURE

Can changes to judicial tenure affect sitting judges?

What safeguards exist against political manipulation of judicial tenure?

 

THE JUDGMENTS

Only after establishing the institutional facts should judgments be examined for patterns.

Not to manufacture bias.

Not to attack individuals.

But to determine whether the structure adequately protects judicial independence.

 

THE 2 QUESTIONS SRI LANKA MUST ANSWER

 

1. DOES OUR SYSTEM PROVIDE THE STRONGEST POSSIBLE STRUCTURE FOR PRODUCING INDEPENDENT JUDGES — AND FOR MAKING THAT INDEPENDENCE VISIBLE TO THE PEOPLE?

 

2. SHOULD THE SUPREME COURT BE THE PINNACLE OF A JUDICIAL CAREER?

 

If the answer is yes, Sri Lanka should examine whether judges should increasingly rise through the Judiciary from the bottom upward, while maintaining appropriate opportunities for exceptional candidates from the private Bar and other legal careers.

Not because prosecutors are unworthy.

Not because State Counsel are incapable of independence.

Not because private practitioners lack judicial qualities.

But because:

• JUDICIAL EXPERIENCE SHOULD MATTER.
• JUDICIAL FORMATION SHOULD MATTER.
• INSTITUTIONAL DIVERSITY SHOULD MATTER.

And above all:

JUDICIAL INDEPENDENCE MUST MATTER.

 

JUSTICE MUST RETURN TO THE JUDGES

This is not about protecting judges from legitimate scrutiny.

It is about protecting justice from illegitimate influence.

A judge who makes a wrong decision must be subject to the remedies provided by law.

A judge who commits misconduct must face lawful accountability.

But the Judiciary must never be placed beneath political power.

Because when the Judiciary loses its authority, the citizen loses the institution to which he or she can turn when every other avenue of power has failed.

 

The constitutional foundation is clear.

SOVEREIGNTY IS IN THE PEOPLE.

Article 3 of the Constitution declares that sovereignty in the Republic of Sri Lanka is in the People and is inalienable.

That sovereignty includes the powers of government.

Article 4 sets out how that sovereignty is exercised — including the judicial power of the People.

The judges therefore do not own judicial power.

THEY HOLD IT IN TRUST.

 

They exercise it on behalf of the People, according to the Constitution and the law.

That is why judicial independence is not a privilege granted to judges.

IT IS A PROTECTION FOR THE PEOPLE.

It protects the citizen when the citizen stands against power.

It protects the individual when the State is wrong.

It protects the Constitution when political power exceeds its limits.

And it protects the rule of law when the majority, the Government, the Opposition, the media or public opinion demands an outcome that the law does not permit.

 

So:

THE EXECUTIVE MUST GOVERN.

PARLIAMENT MUST LEGISLATE.

PROSECUTORS MUST PROSECUTE.

LAWYERS MUST ARGUE.

JOURNALISTS MUST REPORT.

CITIZENS MUST QUESTION.

BUT JUDGES MUST JUDGE.

Without fear.

Without favour.

Without political pressure.

Without institutional intimidation.

According to the Constitution.

According to the law.

And according to the judicial oath they have taken.

 

The Judiciary must never become an instrument of the Government.

It must never become an instrument of the Opposition.

It must never become an instrument of prosecutors.

It must never become an instrument of political movements.

It must never become an instrument of public pressure.

Because judicial power does not belong to any of them.

IT BELONGS TO THE PEOPLE.

And the People have entrusted its exercise to the Judiciary.

 

The question is whether the institution entrusted with exercising the judicial power of the People is sufficiently independent to perform that duty without fear or favour.

THAT IS THE CONSTITUTIONAL QUESTION.

THAT IS THE INSTITUTIONAL QUESTION.

AND THAT IS THE RESPONSIBILITY OF EVERY GENERATION.

 

The Judiciary must never belong to the Government in power.

It must never belong to the political class.

It must never belong to the loudest voices.

It must never belong to any individual.

IT MUST BELONG TO THE PEOPLE — THROUGH THE CONSTITUTION AND THE LAW.

The Judiciary must belong to the Constitution.

It must serve the People.

It must answer to the law.

JUSTICE MUST RETURN TO THE JUDGES.

 

 

 

Shenali D Waduge