(Colombo, 22 September/ Sri Lanka Brief): The Supreme Court has ruled that key provisions of the proposed Anti-Corruption (Amendment) Bill cannot become ordinary law in their present form, finding constitutional problems in amendments affecting personal liberty and judicial control over bail, equality, freedom of expression and the scope of asset declarations.
The most serious constitutional obstacle concerns Clause 17, which seeks to impose a special bail regime for certain bribery and corruption cases. The Court held that the clause interferes with the exercise of the judicial power of the People and is inconsistent with Article 4(c), read with Article 3 of the Constitution. Article 13(2), which protects against deprivation of liberty without effective judicial control, further supports the Court’s conclusion.
Unless Clause 17 is changed, it can become law only with the special majority required by Article 84(2) and approval by the People at a referendum under Article 83, the Court determined.
Magistrate must retain meaningful control over liberty
From a human-rights standpoint, the central finding is the Court’s insistence that an arrested person’s liberty cannot effectively be determined automatically by legislation without meaningful judicial assessment.
Under Clause 17, once its conditions are satisfied, the Magistrate before whom a suspect is produced would have no power to grant bail. The suspect would remain in remand unless the High Court subsequently granted bail on a separate application and on proof of exceptional circumstances.
The Court said Parliament may determine which court has jurisdiction over bail and may prescribe conditions governing bail, but a judicial officer must retain the ability to make a genuine judicial decision. Where the law leaves the Magistrate no authority to release a person, continued custody follows from the statute itself rather than an individual judicial assessment.
The judgment places particular emphasis on the situation at the moment the arrested person is first produced before a Magistrate. The Court said Article 13(2) requires more than physically bringing a person before a judicial officer. If that Magistrate has no authority to consider release, remand cannot meaningfully be regarded as an independent judicial determination of the person’s detention.
The Court also underscored that Clause 17 operates before guilt has been established and that the person therefore continues to enjoy the constitutional presumption of innocence under Article 13(5).
The legislative implication is clear: if Parliament wants to avoid the referendum requirement attached to Clause 17 in its present form, the bail provision needs substantive alteration so that continued detention remains subject to genuine judicial control rather than following automatically from the statutory restriction. This is a synthesis of the Court’s reasoning rather than wording prescribed by the Court.
Court rejects removal of cohabiting partners from asset declarations
The Court also found Clause 7 inconsistent with the Article 12(1) guarantee of equality.
Clause 7 sought to repeal section 81(e), which requires a declarant to disclose the assets and liabilities of a person who has cohabited with and shared a common household with the declarant for at least six months, where they share mutual rights and obligations.
The Government’s stated explanation was that the repeal would protect the privacy of persons said to be “total strangers” to the declarant. The Court rejected that premise, pointing out that section 81(e) does not cover a mere tenant, boarder, employee or temporary guest. It concerns a close, continuing and interdependent domestic relationship. [Anticorrup…ermination | PDF]
The Court also rejected financial independence as sufficient justification for the distinction, noting that a spouse can similarly be financially independent while the spouse’s assets remain subject to disclosure. [Anticorrup…ermination | PDF]
Here, the Court gave Parliament an unusually direct solution: the proposed repeal of section 81(e) should be withdrawn. If Clause 7 is nevertheless retained in its current form, it requires the special majority prescribed by Article 84(2), read with Article 82(5). [Anticorrup…ermination | PDF]
Media amendment violates equality and freedom of expression
Another significant human-rights finding concerns Clause 6(7) and the asset-declaration obligations imposed on the media.
The proposed amendment would replace the existing reference to proprietors, editors and editorial staff with proprietors, chairpersons and directors of specified media companies.
The Court found that excluding those directly responsible for editorial content while bringing financial and managerial decision-makers within the regime created a distinction lacking a rational connection to the objectives of the anti-corruption law. It held that the amendment was inconsistent with Article 12(1) on equality and Article 14(1)(a) on freedom of speech and expression, including publication.
Significantly, the Court said requiring people engaged in media and journalism to disclose their assets and liabilities does not itself constitute interference with freedom of expression. It regarded such disclosure as reinforcing transparency and public trust in the press.
Unlike Clause 17, however, Clause 6(7) does not require a referendum. If Parliament wants to enact it in its present form, it requires the special majority under Article 84(2).
Privacy versus the public’s right to know
The Court took a different view of Clause 11, concerning public access to declarations of assets and liabilities.
Clause 11(1) would permit certain additional privacy-sensitive information to be removed from the publicly accessible redacted version of an asset declaration. The Court held that, read with the regulation-making procedure under section 156, the provision does not give an unguided or unfettered power to withhold information and is not inconsistent with Articles 12(1) or 14A(1).
The judgment nevertheless contains an important human-rights principle: privacy cannot be treated in isolation from transparency and accountability. The Court said that where a person holds public office or exercises public power, their legitimate privacy interests must be balanced against the public interest in transparency, accountability and prevention of corruption.
That principle also informed the Court’s examination of Clause 11(2), which restricts certain uses of publicly accessible redacted asset declarations.
A Committee Stage amendment presented to the Court would exclude from those restrictions the declarations of the President, Prime Minister, Members of Parliament, members of Provincial Councils, elected members of local authorities, specified office-bearers of recognised political parties and candidates for election. With that amendment, the Court found Clause 11(2) constitutionally permissible.
The Court recognised that freedom of expression and access to information are indispensable to exposing corruption and ensuring accountability, while also holding that those freedoms coexist with the privacy and rights of others.
What Parliament must change
In practical human-rights terms, the determination leaves Parliament with three major problem areas.
First, bail and liberty: Clause 17 cannot proceed in its present form through ordinary parliamentary enactment. Its structure deprives the Magistrate of the ability to consider release when an arrested person is first brought before court. Unless that constitutional problem is removed, the Bill requires both a special parliamentary majority and a referendum for this clause.
Second, equality in asset declarations: the Court expressly said Clause 7’s proposed removal of qualifying cohabiting partners from asset declarations should be withdrawn. Keeping it unchanged requires a special majority.
Third, media freedom and equal treatment: Clause 6(7)’s distinction between editorial personnel and proprietors, chairpersons and directors was held inconsistent with Articles 12(1) and 14(1)(a). In its current form it therefore requires a special parliamentary majority.
Other provisions examined by the Court fared differently. Clauses 3, 4, 6(4), 6(5) and 11(1) were held capable of passage by a simple majority. Clause 11(2), with the Committee Stage amendment placed before the Court, can also be passed by a simple majority.
The determination therefore sends a broader rights-based message to lawmakers: stronger anti-corruption enforcement is constitutionally permissible, but it cannot be achieved by removing meaningful judicial control over personal liberty or through classifications that violate equality and freedom of expression. That formulation is a synthesis of the Court’s conclusions across the challenged clauses.
Key changes at a glance
| Provision | Human-rights issue | What is needed |
|---|---|---|
| Clause 17 | Judicial power, liberty and effective judicial control | Substantive amendment to cure the inconsistency, otherwise special majority + referendum |
| Clause 7 | Equality under Article 12(1) | Court says repeal of section 81(e) should be withdrawn; otherwise special majority |
| Clause 6(7) | Equality and freedom of expression | Provision must overcome the constitutional inconsistency; in present form special majority |
| Clause 11(2) | Expression, information and privacy | Constitutional with the proposed Committee Stage amendment |
Source: Supreme Court determination on the Anti-Corruption (Amendment) Bill, contained in Anticorruption-Determination.pdf. [Anticorrup…ermination | PDF]
Editorial approach
I have deliberately led with liberty and judicial control of detention, because Clause 17 carries the strongest constitutional consequence, a special majority and a referendum if retained in its present form. The story then separates the other rights questions into equality, media freedom, privacy and access to information, while clearly distinguishing what the Court actually ordered or determined from my synthesis of what lawmakers would need to address.