-By Gerard Adams
(Lanka-e-News -2026.July.03, 4.30 PM)
"Therānaṃ paññā dīghāyukānaṃ — The wisdom of elders arises from long life." -Pāli Canon
"The life of the law has not been logic; it has been experience." -Justice Oliver Wendell Holmes Jr.
"Power concedes nothing without a demand. It never did and it never will." -Frederick Douglass
"Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested." - Franz Kafka, The Trial
"Justice is the first virtue of social institutions. Laws and institutions no matter how efficient must be reformed or abolished if they are unjust." -John Rawls, A Theory of Justice
"The judge they fear most is the one they are forcing out. That is not a coincidence. That is the policy."
Sri Lanka retires its judges at 65. This is presented as a neutral administrative rule. It is not neutral. It is one of the most effective tools of judicial capture in the country's post-independence history. To understand why, you need to look at two numbers side by side: when judges stop, and how much experience they bring when they start.
On retirement age, Sri Lanka sits at the bottom of every comparable democracy:
Country and Judicial Retirement Age as follows
United Kingdom - 75
Canada - 75
South Africa -75
Australia -70
Bangladesh -67
India -65
Pakistan -65
Sri Lanka -65
United States -Life tenure
Sri Lanka shares the 65 mark with India and Pakistan but trails every other comparable system. The United States grants life tenure. Canada and the UK sit a full decade higher. But retirement age alone does not tell the full story. The more damning comparison is judicial experience before appointment.
When countries elevate a judge to their highest court, how many years of prior judicial experience does that person typically carry?
Country and Typical Prior Judicial Experience as follows;
India ; 15–20 years
Canada ; 12–20 years
South Africa ; 12–20 years
Pakistan ; 12–18 years
United Kingdom ; 12–18 years
Australia ; 10–18 years
Bangladesh ; 10–18 years
Sri Lanka ; 5–10 years
Sri Lanka is the notable outlier — and the gap is not marginal. In India, Pakistan, and South Africa, elevation to the Supreme Court comes after many years on the appellate bench. Judges arrive at the highest court already tested, already seasoned, already beyond the reach of career pressure. In Sri Lanka, appointments to the Supreme Court have consistently included individuals with relatively limited judicial experience but substantial prior careers as senior lawyers, President's Counsel, or — most critically — officers of the Attorney General's Department.
Read those two tables together and the system's logic becomes visible. Bring judges in early, before they have accumulated the experience and independence that long judicial service produces. Retire them at 65, before the combination of seniority and security makes them genuinely fearless. The window between arrival and departure is kept deliberately narrow — long enough to be useful to whoever appointed them, short enough to prevent the accumulation of dangerous independence.
A 2015 study in the Journal of Empirical Legal Studies analysing over 30,000 US federal judicial decisions found no measurable cognitive decline in judges between 60 and 75. The most complex, precedent-setting UK Supreme Court rulings are disproportionately authored by justices in their late sixties and early seventies. The science is unambiguous: judges peak late. Sri Lanka retires them precisely then — and appoints them before they are ready. Both ends of the career are managed to serve the network, not the law.
This is not administrative tidiness. It is a system engineered to keep the bench populated with judges who owe their positions to the state, serve before they develop maximum independence, and are removed before they become impossible to control.
"They don't need a secret plan. They have a seniority list and a retirement date. That is enough."
The deep state in Sri Lanka's judiciary requires no conspiracy. No secret meetings, no coded instructions. The system self-replicates without them. Three components operate in sequence and the machine runs itself.
The Attorney General's Department produces the candidate pool. Career prosecutors and state counsel spend decades representing the government — not citizens. Their entire professional formation rests on one proposition: state interests prevail. When they reach the bench, they carry that proposition with them. This is the dominant pipeline, and the experience comparison above explains why it is so effective — candidates with five to ten years of judicial experience are far more dependent on institutional relationships than judges arriving with fifteen years on the appellate bench.
The constitutional council approves appointments through a process that is technically multi-party but practically controlled by whoever holds executive power at the moment a vacancy opens. Between 1978 and 2022, seventeen of twenty-two Supreme Court appointments came directly from the AG pipeline. That is not a coincidence. It is a capture rate.
Retirement at 65 then cycles out independent judges while generating the vacancies the pipeline stands ready to fill. An AG-pipeline judge retires. An AG-pipeline candidate is waiting. The council nods. The court grows more captured. Repeat.
The numbers speak without commentary:
Metric and Figure as follows;
AG pipeline appointments to Supreme Court, (1978–2022) - 17 of 22
Average tenure, judges from private Bar - 11.3 years
Average tenure, judges from AG pipeline - 6.8 years
SC vacancies filled outside AG pipeline, (2005–2015) - Zero
BASL formal complaints against SC conduct, (2010–2020) - Zero - until the network needed one
Kafka's Josef K. is the citizen on the other side of this machine — a justice system procedurally immaculate and substantively impenetrable. The forms are filed. The hearings occur. Justice does not arrive. Sri Lanka's captured courts deliver exactly this experience to anyone whose interests conflict with the network's.
"Stop asking if a judge is a good person. Ask who appointed them, where they came from, and what they owed when they sat down."
The record since 1978 sorts cleanly into two categories. The outcomes track formation, not character.
Products of the Pipeline
Sarath N. Silva — Chief Justice 1999–2009. The longest serving Chief Justice in the post-1978 era. His court systematically expanded executive power, curtailed fundamental rights petitions, and consolidated presidential authority that took Sri Lanka a generation to begin unwinding. The 2002 Right to Information case — in which the court refused any constitutional basis for public access to government information — is a landmark of judicial self-abasement. His consistent institutional philosophy: the executive is to be accommodated, not checked.
Mohan Peiris — Chief Justice 2013. Installed through a process the Bar Association of Sri Lanka formally condemned as constitutionally illegitimate. The International Commission of Jurists called his appointment a direct assault on judicial independence. Peiris had served as Attorney General under the Rajapaksa government before being elevated first to the Supreme Court, then — after the impeachment of Bandaranayake — to Chief Justice. The pipeline's purest product: a state advocate made Chief Justice to guarantee the outcomes the state required.
Sanjay Rajaratnam. AG pipeline, standard trajectory. Competent, procedurally reliable, and structurally incapable of authoring any judgment that would disturb those who controlled his career. Unremarkable by design. That is the point.
Formed Outside the Machine
Neville Samarakoon QC — Chief Justice 1984–1988. Appointed from the private Bar by J. R. Jayewardene, who expected a loyalist. Samarakoon became Jayewardene's most formidable judicial adversary. His 1984 ruling upholding the fundamental rights of opposition politicians directly contradicted executive preference. Jayewardene attempted impeachment. It failed. Samarakoon finished his term. The lesson the executive absorbed: never appoint from the private Bar again.
Mark Fernando — Supreme Court Justice 1986–2000. Private Bar. Fourteen years on the bench. His judgments on fundamental rights — personal liberty, equality before the law, executive overreach — became the benchmark of what Sri Lankan constitutional jurisprudence could produce when a judge owed nothing to the state. Fernando did not arrive with an agenda. He arrived without debts. That was enough.
Shirani Bandaranayake — Chief Justice 2011–2013. Academic, University of Colombo law faculty. No AG formation. No executive debts. Her 2012 ruling that the Divineguma Bill required provincial council approval was a direct confrontation with Rajapaksa government priorities. She was impeached within months. The process was condemned by the Supreme Court Bar Association, the Commonwealth Lawyers Association, and the International Bar Association as procedurally invalid. Reinstated in 2015 when the government changed. Her case is the cleanest data point in Sri Lanka's judicial history: independent formation produces independent judgments. The system removes them.
A. R. B. Amerasinghe. Scholar and academic jurist. Formation in legal academia, not state advocacy. His environmental law and constitutional judgments remain benchmarks the pipeline was never capable of producing.
The pattern across all four is identical: no pipeline formation, no institutional debts, no compliance with executive preference. Rawls is exact on what follows — institutions that fail to produce just outcomes must be reformed or abolished, however smoothly they operate. The AG pipeline runs smoothly. It produces unjust outcomes with extraordinary reliability. It must be dismantled.
"The same person who was a politician on Monday can be a judge of exceptional independence on Tuesday — if the system changes on Sunday."
The international record makes this impossible to dismiss. Edmund Barton was Australia's first Prime Minister — a career politician at the apex of partisan politics. He became a founding justice of the High Court and authored judgments that shaped Australian constitutional architecture for a century. Isaac Isaacs was a politician and Attorney-General before ascending to Chief Justice and then Governor-General, regarded as one of the finest legal minds Australia produced.
Earl Warren was the Republican Governor of California who ran for Vice President. As Chief Justice of the United States, appointed by Eisenhower, he authored the unanimous ruling in Brown v. Board of Education. The conservatives who endorsed his appointment spent two decades trying to impeach him. His political biography predicted nothing. Life tenure determined everything. John Marshall was a Federalist politician appointed by Adams to frustrate the incoming Jefferson administration. He served 34 years, established judicial review, and produced a constitutional jurisprudence that Jefferson raged against for the rest of his life — because the system gave Marshall the security to be genuinely independent.
Apply this to Sri Lanka directly. Under a reformed system — transparent appointments, protected tenure, raised retirement ages, broken pipeline — origin becomes far less predictive. Parinda Ranasinghe Jr., the current Attorney General, would under the old system be a guaranteed pipeline product. With no career left to protect and no network to serve, the same person becomes a different kind of judge. M. A. Sumanthiran, politician and constitutional lawyer of deep expertise, brings legal sophistication the pipeline cannot produce. Rajiv Amarasuriya, from the Bar's professional standing, represents precisely the private Bar formation that produced Samarakoon and Fernando.
Under the old system, each appointment carries predictable risk. Under a reformed system, each is an asset. The variable is never the person. It is always the system they inhabit.
"They don't need to storm the courts. They need to keep filling them. The machine does the rest."
What is happening in Hulftsdorf right now is auto-replenishment. Deep state judicial actors are ensuring every superior court vacancy is filled from within the network — the pipeline never runs dry, no outsider sits on a bench that matters, and the court shifts invisibly toward total capture with each appointment.
Between 2005 and 2015, all seven Supreme Court vacancies went to AG pipeline or state-adjacent candidates. Not one from the private Bar. Not one from academia. Operating in plain sight, through legitimate-seeming process, producing a completely captured court.
The mechanism self-reinforces because pipeline judges share formation, culture, and institutional loyalty with pipeline candidates waiting behind them. The private Bar candidate is an unknown. The academic is a risk. The network always chooses the known quantity.
Justice Minister Harshana Nanayakkara committed in Parliament to a vigorous, systematic review of superior court vacancies to guarantee independence, authority, and integrity in every appointment — describing judicial independence as sacred, "like a religion." These are the right words. They are also exactly the words spoken by governments that subsequently impeached Chief Justices and handed the bench to pipeline candidates. The test is not the speech. The test is the first inconvenient ruling.
The reforms that would prove the commitment real are specific. Raise retirement to 72 or 75, matching UK and Canadian practice. Publicly disclose the full career history of every nominee before appointment. Establish a genuinely independent Judicial Appointments Commission with civil society representation and mandatory public hearings — not the current constitutional council, which has proven capturable. Constitutionally protect judicial salaries. Set a formal minimum proportion of appointments from the private Bar and academia. Do all of this simultaneously. The network exploits every gap between reforms. It has had decades of practice finding them.
President Dissanayake must understand what is being asked. Not interference in the judiciary — the opposite. The sovereign, deliberate refusal to let the network continue filling the bench through the pretence of neutral process. Using the appointment power to break capture is not executive overreach. Failing to use it is executive abdication. There is no neutral position here. Inaction is a choice the network is counting on.
"An institution that storms its own courts is not defending the law. It is telling you exactly whose interests it serves."
What occurred in Hulftsdorf was not a protest. It was an operation. Hundreds of lawyers — organised and led by the Bar Association of Sri Lanka — entered court premises to disrupt active judicial proceedings, publicly mock the Chief Justice, and sabotage an ongoing investigative process. Their explicit argument: lawyers possess special rights placing them beyond ordinary court authority.
The doctrine they invoked — advocate's privilege — exists to protect lawyers who represent unpopular clients and challenge state power in court. It does not exist to protect lawyers disrupting proceedings that threaten their patrons. What BASL organised was judicial laundering in its most naked form: using procedural disruption and institutional intimidation to make accountability structurally impossible. Make the court ungovernable long enough for the moment of accountability to pass. The simultaneous smear campaign against the Chief Justice followed the same logic — discredit the adjudicator, delegitimise the process, ensure any ruling can be dismissed as political regardless of its legal merit.
The BASL leadership must answer one question they have avoided: whose interests did you serve that day? Not the profession. Not the public. Not the law. The network.
Outside the legal establishment, those scenes played badly. Ordinary Sri Lankans did not see brave advocates defending professional independence. They saw the legal profession protecting itself and the powerful it serves. President Dissanayake's public mandate is explicit: the people who elected him on systemic reform did not vote for accommodation with the establishments that produced the crisis. BASL's behaviour in Hulftsdorf is not a political liability for a reforming government. It is an asset. Let them protest. Let the public see who is in the street, why, and for whom — and who is conspicuously absent: every Sri Lankan who ever stood before a court not designed to serve them.
The courts belong to the people. The legal profession holds its monopoly on their trust. When it deploys that monopoly to protect a capture network, it has broken the social contract that justifies its existence. A reforming government should say so — publicly, plainly, and without apology.
"The most dangerous thing a government can do to the deep state is build a judiciary it cannot control. Do it anyway."
Rawls gave us the test: does the institution produce just outcomes? Holmes gave us the method: build from experience, not theory. The Pāli Canon gave us the timeline: wisdom accumulates over long lives. Kafka gave us the warning: a captured court is indistinguishable from no court at all.
Sri Lanka has had no court for most of its post-independence history — not because the buildings were absent or the judgments unwritten, but because a court that protects the powerful while processing the powerless is Kafka's machine with a judicial seal. It is not justice. It is the administration of capture.
Raise the retirement age. Demand real judicial experience before appointment. Break the pipeline. Appoint from the private Bar and academia — the formation that produced Samarakoon, Fernando, Bandaranayake, and Amerasinghe. Make every appointment transparent. Protect the bench financially. Do it all simultaneously, because the network exploits every gap and has decades of practice doing so.
And when BASL organises another Hulftsdorf operation — it will — do not negotiate, accommodate, or explain. Let the public watch an institution that betrayed its purpose defend its right to keep betraying it.
The deep state has held Hulftsdorf for decades. Through Silva. Through Peiris. Through auto-replenishment, smear campaigns, and organised courtroom disruption. It persists because no government has ever genuinely tried to stop it. This government has the mandate, the public, and the factual, constitutional, and historical case.
Age gives judgment. Experience gives authority. Independence gives courage. A reformed system — one that demands all three before a judge ever sits — gives Sri Lanka a future the deep state cannot steal.
The fear ends now. Or it doesn't end at all.
Collection of articles written by Gerard Adams
https://www.lankaenews.com/category/22
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by (2026-07-03 11:01:33)
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