BMW BILLION-RUPEE CONTROVERSY: IS THE 22ND AMENDMENT CAMPAIGN REALLY ABOUT JUDICIAL INDEPENDENCE — OR FEAR OF ACCOUNTABILITY?

Sri Lanka is now witnessing an extraordinary constitutional confrontation.

The public is being told that the proposed 22nd Amendment represents a grave threat to judicial independence, judicial integrity and the institutional independence of the Supreme Court.

Those principles are undoubtedly important.

But there is another question that the Sri Lankan public has the right to ask:

Who benefits if the 22nd Amendment becomes a vehicle for attacking the Chief Justice and weakening confidence in the Supreme Court?

And more importantly:

Are there undisclosed commercial, professional or financial interests behind the campaign against the amendment?

These questions become particularly serious when examined against the background of the controversial BMW importation case involving allegations of massive losses of public revenue.

According to allegations raised in litigation associated with public-interest lawyer Nagananda Kodituwakku, the importation of a large number of BMW vehicles from Germany involved allegedly undervalued invoices and resulted in an alleged loss to the Sri Lankan Treasury running into billions of rupees.

The figure repeatedly associated with the controversy is approximately Rs.16 billion.

If that figure is correct, this is not a private dispute.

It is a taxpayer issue.

It is a public-revenue issue.

And if the courts have taken steps capable of exposing or recovering such revenue, every Sri Lankan taxpayer has an interest in ensuring that the judicial process remains independent from commercial and political pressure.

THE BILLION-RUPEE QUESTION

The BMW controversy raises a fundamental legal question:

What happens when a powerful commercial interest is confronted by a judicial system determined to examine whether the State has lost billions of rupees?

That is precisely why the public must distinguish between legitimate constitutional advocacy and attempts—if any exist—to undermine judges because their decisions may adversely affect powerful interests.

No company should be presumed guilty merely because allegations have been made against it.

Equally, no company should be protected from investigation merely because it has powerful lawyers.

That principle applies equally to every lawyer, every President's Counsel and every professional organisation.

The rule of law cannot mean one standard for ordinary citizens and another standard for wealthy corporations.

THE SUMANTHIRAN QUESTION

This is where the appearance of M.A. Sumanthiran in the 22nd Amendment proceedings deserves public scrutiny.

Sumanthiran is a senior President's Counsel and has represented parties in major constitutional and commercial litigation.

The question being raised publicly is whether he has previously represented interests connected with the BMW controversy.

If he has, that fact by itself does not automatically constitute a legal conflict of interest.

But that is not the end of the question.

The relevant issue is whether there is any continuing professional, financial, fiduciary or confidential relationship that could create an actual conflict—or a sufficiently serious appearance of conflict—under the applicable professional and ethical rules.

If no such conflict exists, the matter should be straightforward.

If a conflict does exist, however, it must be addressed openly.

A lawyer cannot demand the highest standards of independence from judges while simultaneously dismissing legitimate questions concerning his or her own professional independence.

That is not an attack on the legal profession.

It is the minimum standard expected from the legal profession.

THE DOUBLE STANDARD QUESTION

There is an even more fundamental issue.

Those opposing the 22nd Amendment have invoked the language of judicial independence, judicial integrity and institutional safeguards.

Fine.

But where was the same intensity of concern during previous constitutional changes?

What position did the BASL and individual senior lawyers take when the 20th Amendment dramatically altered the constitutional balance of power?

Were the same arguments made with the same urgency?

Were the same institutional safeguards demanded?

Were the same warnings about judicial independence issued?

These questions are not irrelevant.

Constitutional principles cannot be selectively defended according to which political administration happens to be in power.

Judicial independence is not a political weapon.

It is a constitutional principle.

WHY THE BMW CASE MATTERS

The BMW controversy matters because it provides a practical example of why an independent judiciary is important.

Imagine a situation in which the State alleges that billions of rupees in customs or tax revenue have been lost.

Imagine further that a private company disputes those allegations.

The company has access to highly experienced lawyers.

The Government has its own legal representatives.

The public has no direct representation except through the legal mechanisms of the State and public-interest litigation.

In such a case, the only meaningful protection available to the taxpayer is an independent judicial process.

The judge must be able to rule against the company.

The judge must be able to rule against the Government.

The judge must be able to rule against lawyers.

And the judge must be able to rule against politically powerful individuals.

That is judicial independence.

It cannot mean that judges are independent only when their decisions favour one side.

THE Rs.16 BILLION QUESTION CANNOT SIMPLY DISAPPEAR

The Sri Lankan taxpayer therefore has a legitimate question:

If the BMW litigation resulted in findings, orders or proceedings capable of requiring a commercial party to account for approximately Rs.16 billion in public revenue, who stood to lose if those proceedings succeeded?

That question should be answered through court records.

Not rumours.

Not political speeches.

Not social-media campaigns.

Not press conferences.

And certainly not attacks against judges.

If the BMW matter is completely unrelated to the 22nd Amendment controversy, then those claiming otherwise should be able to demonstrate that clearly.

If there is a connection, the public deserves to know its nature.

Was there financial support?

Were there communications?

Were there meetings?

Were there political arrangements?

Were legal fees paid by third parties?

Were there donations?

Were there undisclosed financial relationships?

These are factual questions.

They can be answered.

But they cannot be answered by simply calling every question about them an attack on judicial independence.

THE MOST SERIOUS ALLEGATION REQUIRES THE MOST SERIOUS EVIDENCE

There have also been allegations and rumours that substantial sums of money may have changed hands without proper receipts or transparent documentation.

These claims are extremely serious.

They must not be treated as established facts without evidence.

If such payments occurred, there should be documentary evidence.

Bank records.

Invoices.

Receipts.

Tax records.

Engagement letters.

Court filings.

Financial disclosures.

Corporate records.

If there is no evidence, the allegations should not be presented as fact.

But if evidence exists, it should be investigated.

That is precisely what an independent legal system is supposed to do.

NINE PRESIDENT'S COUNSEL — QUESTIONS, NOT CONDEMNATION

The involvement of nine President's Counsel or other senior lawyers in constitutional litigation does not itself prove wrongdoing.

Senior lawyers have every right to represent clients.

They have every right to advance constitutional arguments.

They have every right to challenge legislation.

But seniority also carries responsibility.

When a lawyer appears before the Supreme Court in a case affecting the constitutional architecture of the judiciary, the public is entitled to expect complete professional transparency.

If any counsel has a previous relationship with a party that could materially benefit from weakening judicial scrutiny of a particular commercial dispute, that relationship should be examined under the applicable conflict-of-interest standards.

The answer should not be:

"How dare anyone question us?"

The answer should be:

"Here are the facts. There is no conflict."

That is how confidence is built.

THE CHIEF JUSTICE SHOULD NOT BE THE TARGET OF A CAMPAIGN

There is another disturbing development that deserves attention.

Personal allegations concerning the Chief Justice and members of his family have reportedly begun circulating.

The public should be extremely careful here.

An allegation about a judge's relative is not evidence of judicial misconduct.

An allegation about a judge's child is not evidence of corruption.

A social-media accusation is not a judicial finding.

If anyone has evidence of wrongdoing, the proper course is to place that evidence before the competent authority.

If allegations are false and defamatory, the affected individuals have legal remedies.

The judiciary should not be destroyed through a campaign of insinuation.

At the same time, judges are not above the law.

The correct principle is therefore symmetrical:

Evidence must be investigated whether it concerns a judge, a lawyer, a politician, a company or a government official.

THE REAL TEST OF JUDICIAL INDEPENDENCE

The 22nd Amendment debate should therefore be reduced to one fundamental test:

Will the Supreme Court be allowed to decide the constitutional questions according to law, without political pressure, commercial pressure, personal attacks or intimidation?

If the amendment is unconstitutional, the Court should say so.

If it is constitutional, the Court should say so.

If Parliament has exceeded its constitutional authority, the Court should intervene.

If Parliament has acted within its constitutional powers, the Court should uphold it.

That is judicial independence.

The answer cannot be determined by demonstrations, newspaper campaigns, professional pressure groups or attacks on individual judges.

WHO IS REALLY AFRAID?

This is ultimately the question that the Sri Lankan public should be asking.

If the 22nd Amendment genuinely threatens judicial independence, then the argument should be made on constitutional law.

Show the provisions.

Show the precedents.

Show the constitutional provisions being violated.

Show the jurisprudence.

Show the legal reasoning.

But if the real fear is that a stronger, more independent judiciary could expose questionable commercial transactions, recover billions of rupees belonging to taxpayers, or scrutinise powerful individuals and corporations, that is an entirely different matter.

That would not be a judicial-independence crisis.

It would be an accountability crisis.

And Sri Lanka has had enough of those.

THE FINAL QUESTION FOR THE BASL

The BASL has an important institutional role in protecting the rule of law.

But that responsibility comes with an obligation to maintain public confidence.

The organisation should therefore answer a simple question:

Are all lawyers involved in the 22nd Amendment litigation completely free of any actual or perceived conflict arising from their previous representation of parties whose financial or commercial interests could be affected by the judiciary's approach to related litigation?

If the answer is yes, disclose the relevant facts and end the speculation.

If the answer is no, the appropriate ethical mechanisms should be followed.

There should be no double standards.

The same principle should apply to the Government.

The same principle should apply to the Opposition.

The same principle should apply to corporations.

The same principle should apply to President's Counsel.

And the same principle should apply to judges.

SRI LANKA'S TAXPAYERS DESERVE THE TRUTH

The alleged Rs.16 billion BMW revenue controversy cannot simply be buried beneath a new constitutional argument.

If taxpayers genuinely lost billions of rupees, they deserve accountability.

If the State's allegations are wrong, the affected company deserves vindication.

If lawyers acted properly, they deserve to have their professional integrity protected.

If conflicts exist, they must be addressed.

If payments were made unlawfully, they must be investigated.

If rumours are false, they should be exposed as false.

And if the 22nd Amendment is unconstitutional, the Supreme Court must be free to declare it unconstitutional.

That is the rule of law.

The greatest danger to judicial independence is not necessarily criticism of judges.

The greater danger is a system in which judges become afraid to decide cases involving powerful people because every adverse judgment is followed by a political or personal campaign against them.

Sri Lanka must not allow that culture to develop.

The question before the country is therefore much bigger than the 22nd Amendment.

It is whether the legal system belongs to the public—or to those with the money, influence and legal power to manipulate it.

The Sri Lankan taxpayer has a right to demand an answer.

And if there is nothing to hide, transparency should not be feared.