The 22nd Amendment and the BASL: Defending the Law or Attacking the Man?
By Our Legal Affairs Correspondent
The Bar Association of Sri Lanka (BASL) has staked its reputation on opposing the 22nd Amendment, framing its campaign as a heroic defence of judicial independence. Yet, as the Supreme Court prepares to rule on the Bill, a troubling question emerges from the association's conduct: At what point does legitimate legal advocacy cross the line into unethical personal attack?
The BASL’s legal position rests on established precedent. It argues that extending the retirement age of Supreme Court judges violates the Constitution's Article 3, relying on the 2022 determination in SC SD 64-71/2022, which held that altering judicial tenure requires a referendum. President's Counsel M.A. Sumanthiran—leading the BASL's case—has argued that "certainty of tenure" is sacrosanct.
But the BASL has not stopped at legal argument. It has actively called for the Chief Justice to recuse himself from the bench hearing the case, explicitly stating that the court would be placed in an "embarrassing and constitutionally sensitive position" if he remained. The association has also raised concerns—through media leaks and public statements—about the Chief Justice's personal interest in the amendment.
This raises a profound ethical dilemma: Is it professional conduct to target an individual judge and his family in a constitutional challenge, rather than confining objections to the Bill itself?
The Ethics of Personalising a Constitutional Question
Critics—including senior legal academics consulted by Colombofire—are increasingly uncomfortable with the BASL's tactics. While judicial independence is a cornerstone of the rule of law, the ethical canons of the legal profession forbid advocates from impugning the character or motives of a judge unless absolutely necessary and supported by clear evidence.
Where is the evidence that the Chief Justice personally solicited or influenced the drafting of the 22nd Amendment? Is it not possible that the amendment is a policy initiative of the Executive, rather than a conspiracy by an individual?
By shifting the focus from the Bill to the person, the BASL risks violating Rule 8 of the Sri Lanka Bar Council Rules, which requires lawyers to maintain "respect for the judiciary" and refrain from "scandalous or disrespectful" conduct toward judicial officers. The question must be asked: Is the BASL defending the Constitution, or is it engaging in character assassination under the guise of legal activism?
The Sumanthiran Question and the Separatist Dilemma
The BASL's choice of counsel further complicates the ethical picture. Mr. Sumanthiran is a member of the ITAK—a party whose constitutional vision challenges Sri Lanka's unitary framework. Can an association that claims to uphold the Constitution sincerely entrust its defence to a politician whose party advocates for a federal system?
This is not a personal attack on Mr. Sumanthiran, who is a respected advocate. It is a question of consistency and optics. If the BASL believes that the 22nd Amendment threatens the Constitution, why has it chosen a representative whose political platform would involve rewriting that very document?
Commonwealth Intervention: Solidarity or Misinformation?
The BASL has also invited Commonwealth Lawyers' Association President Steven Thiru to intervene, presenting Sri Lanka's situation as a crisis of judicial independence. But critics wonder: Was the Commonwealth misled with selective information? Did the BASL accurately convey that Sri Lanka has a written, supreme Constitution with a robust Supreme Court that has struck down unconstitutional laws before—including through the landmark 19th Amendment challenges?
Is it ethical to invoke international legal bodies based on a narrative that omits the domestic complexities and potential political motivations behind the BASL's campaign?
The Elephant in the Courtroom: Professionalism and Hypocrisy
Perhaps the most damning ethical questions arise not from the 22nd Amendment itself, but from the BASL's silence on the conduct of its own members.
Why does Sri Lanka have over 1.1 million pending cases, if the BASL is so committed to the rule of law?
Why is there a two-tier legal system, where politically connected lawyers receive preferential treatment while ordinary citizens languish?
Why are President's Counsel appointed with no transparent qualification criteria, widely perceived as rewards for political loyalty rather than legal excellence?
Should lawyers who hold ministerial positions be automatically barred from practice, given the inherent conflict of interest?
And most disturbingly: If, as alleged by critics, certain politicians who are also lawyers—and whose children are under investigation for demanding protection money from criminals—are funding the campaign against the Chief Justice, does the BASL have an ethical duty to investigate and disclose such conflicts?
These are not rhetorical games. These are questions of integrity. If the BASL demands the highest standards from the judiciary, it must hold itself—and its members—to the same standard.
A Crisis of Credibility
The BASL has a right—indeed, a duty—to challenge unconstitutional legislation. But the 22nd Amendment proceedings have revealed a troubling pattern: the association appears more focused on discrediting an individual judge than on making a purely constitutional case.
Is this ethical? The answer, for many legal observers, is a resounding no.
The BASL must decide whether it is a guardian of the Constitution or a political actor wielding legal arguments as weapons. If it chooses the former, it must abandon personal attacks, disclose conflicts of interest, and clean its own house. If it chooses the latter, it forfeits the moral authority to speak for the profession—and the people of Sri Lanka.
The Constitution is on trial. But so is the Bar.