As a Sunday newspaper notes editorially, the 22nd amendment is opposed by, among others, ‘…the International Association of Judges, consisting of 93 national judges’ organisations across five continents…’.
Political history will probably record that 22A which intervenes in the judicial system, was a building-block in the JVP-NPP’s project of a transition from the post-1948 flawed democracy to mono-party totalitarianism.
The incoming NGO (Registration and Supervision) Act will be ‘another brick in the wall’-as will the planned modifications to the Prevention of Terrorism Act (PTA).
President Anura Kumara Dissanayake truculently explained to the Bar Association of Sri Lanka (BASL) delegation that he’s perfectly willing to take risks for the sake of making change. But he probably doesn’t know just what he’s risking.
The only ‘minority President’ in Sri Lanka’s political history, he won 42% of the popular vote in 2024. All his popularly elected predecessors clocked over 50%. Anura’s JVP-NPP did much better at the Parliamentary election but that’s the domino effect generated by a newly-elected President combined with the indistinguishability of the SJB’s economic platform (‘The Blueprint’) from the unpopular incumbent’s economics.
AKD dreads an election so much that he has avoided the obvious opportunity of holding Provincial Council elections which would give his Government more than it has now in terms of political space. He isn’t altogether wrong because the JVP-NPP is losing almost every election to the grassroots Multi-Purpose Cooperative Societies (MPCS).
With the illogical, unethical, unilateral 22nd amendment, AKD is risking a strategic depletion of legitimacy-that most precious intangible in politics.
Meanwhile, the Jaffna Monitor, the crisp reportage of which I find refreshing, speculated whether 22A could be intended to pre-empt a particular judge of the Supreme Court, Justice Kodagoda from occupying the post of Chief Justice.
‘…The judge who would ordinarily follow him is Yasantha Kodagoda, President’s Counsel, the senior puisne justice, who took oaths as Acting Chief Justice in December. He went to the Supreme Court in February 2020, a few months into Gotabaya Rajapaksa’s presidency, after three decades in the Attorney General’s Department. That timing has attached a label to him in political conversation. Lawyers who worked alongside him dismiss it as lazy shorthand…’ (https://www.jaffnamonitor.com/sri-lankas-judicial-age-fight-is-about-more-than-age/)
If even tangentially true as a contributory factor, this would be an enormous pity. While Justice Kodagoda may have been appointed by President Gotabaya Rajapaksa, he was by no means a ‘Gota guy’ like Mohan Pieris (‘terrorists have no human rights’) of MoD provenance and patronage. After I had returned from ambassadorial postings in Geneva and France, very much in Gotabaya’s bad books due to my stance on the 13th amendment as well as Israel/Palestine (GR had flown to Tel Aviv to ‘explain’ my role supporting the entry of Palestine to UNESCO, which President MR had enthusiastically endorsed), Yasantha Kodagoda, at the time Deputy Solicitor-General, had the guts and graciousness to invite me to deliver that year’s (2013) Memorial lecture in honour of his father Prof. Nandadasa Kodagoda-a prestigious invitation I was honoured to accept.
I have worked with Yasantha Kodagoda-now His Honour, Justice Kodagoda-who represented the AG’s Department during my stint as our Ambassador/PR in Geneva including during the decisive, successful 2009 battles over the UNHRC resolution. I found him honourable, quietly understated yet strong-charactered, highly intelligent and independent-minded, diligent while reflective, and one of the most outstanding public servants I’ve met.
A reformist and a principled man, Justice Kodagoda isn’t and won’t be anyone’s marionette or proxy. Maybe that’s the problem.
The depletion of legitimacy causes damage to the system-by which I mean the Sri Lankan State, i.e., the democratic republic. 22A is only one of several ways in which AKD is jeopardising the State.
Those who have lived through or studied Sri Lanka in the 1980s would recognise two major, avoidable blunders made by the Jayewardene administration which culminated in the carnage that almost destroyed the State and civil society. The first was JR’s failure to fulfil his promise in the 1977 election manifesto to summon a roundtable conference which addresses the Tamil National Question. Had the District Development Council (DDC) election been held in 1978 instead of 1981, it could have averted the explosion of lethal violence and retarded radicalisation.
The second avoidable blunder, the consequences of which almost buried the system, was the deferment for six years by means of a (fraudulent and coercive) Referendum in December 1982, of the Parliamentary election scheduled for early 1983.
The twin civil wars North and South that trapped Sri Lanka were caused in considerable measure by these two delayed/deferred islandwide elections, though-and this must be noted-Presidential elections had been held and won by JR Jayewardene in October 1982. The lesson is crucially important: even if elections have been held at the apex of the system, the non-holding of elections at any other level of the political system can be devastating because of the buildup of steam for whatever combination of reasons, within the system. It is a deadly dangerous risk to keep the safety-valves shut; not open them in time. Once the explosion occurs it is exceedingly difficult to restore stability.
Anura Dissanayake is making the same blunder as JR Jayewardene, without any excuse whatsoever because the country has experienced those hubristic follies of the early 1980s. By keeping the Provincial Council elections blocked he is depriving the North and East devoid of political institutions to contain the radicalisation of Tamil nationalism. Furthermore, and arguably worse still, given the experience of the non-holding of Parliamentary elections in early 1983, the blockage of Provincial Council elections keeps the safety-valves across the country shut at a time of severe, mounting socioeconomic hardships.
Blocking PC elections in the North and East has left a vacuum in which Tamil nationalist grievances and discourse are manifesting themselves stridently outside of any elected institutional framework.
Meanwhile, the State authorities are proceeding with a spate of arrests and prosecutions which coincidentally or not, target those who fought on the side of the Sri Lankan State to defeat the Tigers’ secessionist war.
The proliferation and stridency of Tamil nationalism, combined with a perceived witch-hunt of Sri Lankan war veterans and their Tamil allies, i.e. the winning side of the war, is fuelling a toxic majoritarian religio-ultranationalism in the South.
A realist reading of Black July 1983 would not be monocausal. It also had an economic factor feeding into it: the imbalances and dislocations caused by the ‘Big Bang’ opening-up of the economy. The political economy of Black July ’83 had been masterfully unpacked at the time by Dr. Newton Gunasinghe, our most theoretically sophisticated Marxist social scientist after GVS de Silva. (N. Gunasinghe, ‘The Open Economy and its Impact on Ethnic Relations in Sri Lanka,’ three essays in Lanka Guardian Vol.6 no.17, 1 January 1984; Vol.6, no.18, 15 January 1984; Vol.6 no19, 1 February 1984).
However, the contradictions caused by this factor would have manifested itself peacefully through the nationwide Parliamentary election had it been held on schedule in early 1983.
AKD’s transparent filibustering on the long-delayed Provincial Council elections at the same time that farmers are facing bankruptcy and most Sri Lankans are experiencing an acute ‘affordability crisis’, means he is taking an even greater risk than JRJ. The latter had topped 50% at the Presidential election in October 1982, and had a rapidly expanding economy-especially a prosperous peasant economy driven by the Accelerated Mahaweli Scheme. Anura has neither advantage. Instead, he has opted for, presided over and driven the extension of Ranil Wickremesinghe’s harsh stabilisation program, with its attendant social polarisation.
In such a context, keeping an entire structural level of islandwide political institutions (PCs) and electoral practices shut down, and the socioeconomic tensions bottled-up without electoral release, is to deliberately invite an explosion. Is that the game-plan?
The downward trajectory of Sri Lanka’s dignity under President Anura Dissanayake and his JVP-NPP administration is best evidenced by the most recent developments concerning Tamil Nadu fishermen
Legal liberals must rethink
While I completely support the legal fraternity in its opposition to the 22nd amendment, I continue to be appalled by the irresponsible naivete of some liberal legal scholars, such as those who urge President Dissanayake to dump the amendment and rapidly proceed with a new Constitution instead.
A case can be made for such an exercise under an enlightened dispensation but certainly not while the present administration is in office. Surely our previous exercises in Constitution-making proved beyond doubt that it is the ideology and ideas of the drafters of the Constitution that were, are and will be reflected in the form and content of that Constitution, while vain calls for broad consultation and consensus will be ignored.
Does Sri Lanka’s liberal-legal fraternity seriously want the JVP-driven and dominated NPP to promulgate a new Constitution, when some of its leading lights have already engaged in conspicuous kite-flying about the virtues of long continuity in office?
Then there’s the related insistence of the legal fraternity that the executive Presidency be abolished – rather than reformed, rebalanced-in favour of a Parliamentary model. Here is a stunning indictment by Jeevan Thiagarajah on Black July 1983.
‘…Sri Lanka did not inherit an ethnic civil war from the British; it constructed one, statute by statute. The Official Language Act of 1956 reversed a cross-party consensus on dual-language policy within two years, making language ‘a permanent and thus far irreconcilable issue’ (Perera 2001, citing Kearney 1967). The 1972 republican constitution deleted the clause barring parliament from legislating to the prejudice of minorities; a joint Tamil reform submission that year was rejected outright (Perera 2001). University admissions, ‘standardised’ from 1971, cut Tamil representation in science faculties from 35.3 to 19 percent by 1975 (Perera 2001) – reversed in 1977, but not before a generation learned the doors were closing by design.
Two negotiated paths existed and were both abandoned: the Bandaranaike-Chelvanayakam Pact of 1957 and the Dudley-Chelvanayakam Pact of 1965, each torn up under pressure from whichever party was, at that moment, in nationalist opposition (Perera 2001). Perera writes it is ‘generally accepted’ that had either survived, the conflict would not have escalated as it did – twice negotiated, twice discarded, because generosity toward a minority can always be outbid at the next election. The Vaddukoddai Resolution of 1976 and the Tamil United Liberation Front’s near-clean sweep of northern seats in 1977 on a separatist platform (Perera 2001) read as the electorate’s verdict on thirty years of broken pacts…’
Note that all these steps took place not under the much-reviled executive Presidency but under the much-celebrated Parliamentary system. Certainly, horrors abounded during the Presidential period of our political history, but those were either dreadful decisions or sins of omission, downstream from the Parliamentary construction of Sinhala hegemonism; decidedly not pieces of legislation unlike before.
The architecture of majoritarian hegemony was erected under the Parliamentary system-and could only happen under such a system which is susceptible to extremist pressures from MPs, a Prime Minister, or an Opposition Leader with a parochial, monoethnic/mono-religious base. Israel is an illustration.
Such legislation is far less likely under a President has the whole island as his/her electorate and has to reckon with minority votes. Gotabaya was a grotesque exception-but even he didn’t /couldn’t enact openly discriminatory legislation as distinct from regulations and executive orders.
The incontrovertible fact is that provincial-level devolution was enacted precisely under a Presidential system, while both the B-C and D-C Pacts were aborted under a Parliamentary one.
I wish though that some Sri Lankan politician would take a stand against the piratical invasions by Tamil Nadu fishermen, and reject projects for physical connectivity chaining us to Tamil Nadu thereby turning Sri Lanka into an archipelago of India, no longer an island. I console myself that no credible Opposition Presidential candidate is committed-so far-to implementing such slavish ideas if elected
Pirates in iron boats
The downward trajectory of Sri Lanka’s dignity under President Anura Dissanayake and his JVP-NPP administration is best evidenced by the most recent developments concerning Tamil Nadu fishermen. Acting exactly like pirates, the Tamil Nadu fishermen in their heavy iron boats have been invading Sri Lankan waters and denuding our waters of fish-an important source of protein for the Sri Lankan people many of whom now have two meals a day instead of three, and a source of income for Lankan fishing communities. An island, Sri Lanka is now reduced to importing fish. Now the invaders have begun to make incursions into the waters off Mannar. The Sri Lankan Navy occasionally succeeds in apprehending some of those marauding foreign fishermen.
India’s Foreign Minister has urged Sri Lanka not to regard it as a law-and-order problem. The only other way to regard it is as repeated incursions into our sovereign waters and an act of economic pillage.
Tamil Nadu’s Chief Minister has written to Delhi, protesting about the arrests. His Minister of Fisheries is leaving for Delhi to lobby on behalf of the pirate-fishermen.
The Indian Navy and Coast Guard could easily work together with the Sri Lankan Navy and prevent the Indian fishermen from systematic poaching in our sovereign waters. But Big Brother with whom AKD has signed a Defence Cooperation Agreement in 2025 ceding who knows what, is unwilling to police its sea-border with Sri Lanka.
Silent and inactive in the face of this blatant trespassing and bullying, the AKD administration is the most supine I have seen. There isn’t a word from the Foreign Minister or the Foreign Ministry.
Meanwhile Ranil Wickremesinghe and Harsha de Silva are urging Sri Lanka to build bridges and roadways (Ranil suggests two!) inextricably linking our island with Tamil Nadu. If implemented that would pose a threat not only to Sri Lanka’s security but also its very survival and existence as an independent entity.
I get it: there aren’t daring, heroic, patriotic leaders comparable to Ranasinghe Premadasa and Mahinda Rajapaksa-both of whom I supported and worked with. I wish though that some Sri Lankan politician would take a stand against the piratical invasions by Tamil Nadu fishermen, and reject projects for physical connectivity chaining us to Tamil Nadu thereby turning Sri Lanka into an archipelago of India, no longer an island. I console myself that no credible Opposition Presidential candidate is committed-so far-to implementing such slavish ideas if elected.
The conduct of Tamil Nadu fishermen and the stances of New Delhi and Chennai prove the dictum of India’s greatest strategic sage Chanakya aka Kautilya, advisor to Chandragupta Maurya, that the greatest threat to the State cannot but emanate from its immediate neighbour because the latter has more issues for friction. He suggested that this axiomatic fact be offset by cultivating relationships with the neighbour’s neighbours. In Sri Lanka’s case this would be the states of the South Asian rim and of course China.
Realistically, Sri Lanka should adopt towards India, Vietnam’s policy-termed the ‘Bamboo’ policy-towards its giant neighbour China. The ‘Bamboo’ policy of ambidextrous balance and flexibility leans towards proximity when it accords with Vietnam’s national interest but bends in the other direction-while remaining within non-inimical parameters-if it perceives any potentially threat to its national interest.