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The Supreme Court’s recent Special Determination on the Anti-Corruption (Amendment) Bill, 2026 has raised an important constitutional question concerning the relationship between the Legislature, judiciary and the fundamental constitutional principle that judicial power is exercised by the Courts on behalf of the People.

While several provisions of the Bill were challenged before the Supreme Court, one provision attracted a particularly significant constitutional consequence — Clause 17, which proposed to introduce a more restrictive bail regime for certain offences under the Anti-Corruption Act, No. 9 of 2023.

The Supreme Court determined that Clause 17, in its present form, is inconsistent with Article 4(c), read with Article 3, of the Constitution, with Article 13(2) further supporting that conclusion. Consequently, the Court determined that Clause 17 could become law only if passed by the special majority contemplated by Article 84(2) and approved by the People at a Referendum under Article 83.

The significance of this determination lies not merely in the question of bail. At its heart is a deeper constitutional question: To what extent can Parliament restrict the judicial power of a Court to determine whether a person should remain in custody or be released on bail?

What did clause 17 seek to achieve?

Clause 17 proposed to repeal the existing section 149(1) of the Anti-Corruption Act and substitute a new provision establishing a special bail regime as follow –

“All offences under this Act shall be cognizable and non-bailable as per the provisions of the Bail Act, No. 30 of 1997:

Provided that, where a person is suspected or accused of soliciting, accepting or offering a bribe of not less than one hundred thousand rupees or where by committing the offence of corruption, has caused to the Government a loss of not less than five hundred thousand rupees or has gained a benefit, favour or an advantage of not less than five hundred thousand rupees to himself or to any other person, the value of which has been confirmed by the Director General by issuing a certificate, such suspect or accused shall not be granted bail except in exceptional circumstances by a High Court.”.

At the time of the hearing, the Court was also informed that an amendment would be moved at Committee Stage to increase the relevant monetary threshold from Rs. 500,000 to Rs. 2.5 million.

The practical effect was therefore important. A suspected person could be produced before a Magistrate, but once the statutory conditions under Clause 17 were satisfied, the Magistrate would no longer have the ordinary discretion to consider whether that particular person should be released on bail. Instead, the suspect would have to seek bail from the High Court, and even there, bail would be available only in exceptional circumstances.

The question before the Supreme Court was whether such an arrangement merely regulated the procedure for obtaining bail — something Parliament is ordinarily entitled to do — or whether it went further and interfered with the judicial power constitutionally vested in the Courts.

The Constitutional Foundation: Sovereignty of the People

The Court’s determination must be understood against the constitutional scheme contained in Articles 3 and 4. Article 3 declares that sovereignty is in the People and that sovereignty includes, among other things, the powers of government, fundamental rights and the franchise.

Article 4 sets out the manner in which that sovereignty is to be exercised. In relation to the judiciary, Article 4(c) provides for the exercise of the judicial power of the People through the Courts established by or under the Constitution.

This constitutional arrangement has a particular significance where personal liberty is concerned. The power to determine whether an individual should continue to remain in custody or should be released on bail is not merely an administrative function. It involves the exercise of judicial power.

The Supreme Court therefore approached Clause 17 by asking whether the proposed statutory restriction would leave the relevant judicial officer with a genuine ability to exercise that judicial power.

The Court’s Central Concern: Meaningful Judicial Determination

The Court recognised that Parliament is entitled to legislate regarding bail. Parliament may determine:

• which Court should exercise jurisdiction over bail;
• the circumstances in which bail may be granted;
• conditions upon which bail may be granted; and
• particular categories of offences for which a special bail regime may apply.

The constitutional difficulty arises, however, when legislation goes beyond regulating the exercise of judicial discretion and effectively removes the judicial discretion itself. The Court therefore distinguished between regulating judicial power and preventing its effective exercise. In relation to Clause 17, the Court found that the latter problem arose.

What Happens When the Accused is Produced Before the Magistrate?

This was central to the Court’s reasoning.

Under the proposed Clause 17, once the statutory conditions were satisfied, the Magistrate would have no discretion to consider whether the particular circumstances of the accused justified release on bail. The Magistrate could not independently assess matters such as the circumstances of the individual case and decide that continued detention was unjustified. Instead, the accused would remain in custody unless the High Court subsequently granted bail upon an application based on exceptional circumstances.

The Court considered this consequence significant. It observed that the continued detention of the person would not result from a judicial assessment of the individual circumstances by the Magistrate, but from the statutory restriction imposed by Parliament itself. That distinction goes to the heart of the constitutional problem.

The Court explained that where the law leaves the Magistrate without legal authority to consider release, the resulting deprivation of liberty follows from the statute rather than from an effective judicial determination Bail is an Exercise of Judicial Power.

The Supreme Court’s earlier constitutional determinations concerning bail were important to its reasoning. The Court referred to its earlier Special Determination relating to the Poisons, Opium and Dangerous Drugs (Amendment) Bill, where the Court had considered an attempt to restrict the judicial power to grant bail. The underlying principle emerging from those decisions is that the power to determine whether an individual should remain in custody or be released on bail is a judicial power.

That does not mean that Parliament is prohibited from regulating bail. Rather, the constitutional limitation is that Parliament cannot place that judicial power under the effective control of an executive or other non-judicial authority, nor can it structure the law so that the Court is deprived of the ability to make a genuine judicial determination. The present Court applied that constitutional principle to Clause 17

The High Court Remedy Did Not Cure the Constitutional Problem

An important argument considered by the Court was that the suspect/accused was not completely deprived of access to judicial consideration. The suspect could still make an application to the High Court for bail. Therefore, it was argued that Clause 17 merely transferred the jurisdiction to grant bail from the Magistrate to the High Court.

The Supreme Court did not accept that this fully answered the constitutional concern. The Court considered that the issue was not simply which Court hears the bail application. The important question was whether there remained an effective judicial determination of the person’s continued deprivation of liberty at the stage when the person was first produced before the Magistrate. The fact that an accused could subsequently approach another Court did not, by itself, eliminate the constitutional problem.

As the Court observed, the person would already have been produced before the Magistrate, yet the Magistrate would have no power to consider release. The person would remain in custody until the High Court’s jurisdiction was invoked. Thus, the proposed mechanism was not regarded by the Court as merely a change in procedural forum. It materially restricted the judicial discretion available at the first judicial stage of detention.

Article 13(2) and Personal Liberty

The Court’s conclusion was further supported by Article 13(2) of the Constitution.

Article 13(2) provides constitutional protection in relation to deprivation of personal liberty and requires a person deprived of liberty to be brought before the Judge of the nearest competent Court according to the constitutional framework. The Court emphasised that constitutional safeguards relating to liberty become particularly important where a person is deprived of liberty before guilt has been established. This is also connected with the constitutional presumption of innocence under Article 13(5).

Clause 17 would operate at a stage when the accused remained legally presumed innocent, yet the statutory scheme would prevent the Magistrate from determining whether continued detention was justified in the circumstances of the particular case. The Court therefore regarded Article 13(2) as providing further constitutional support for its conclusion regarding Clause 17

Parliament May Restrict Bail — But Cannot Eliminate Judicial Judgment

One of the most important aspects of the determination is that the Supreme Court did not hold that Parliament is constitutionally prohibited from creating a special bail regime for corruption offences. The Court recognised the legitimate legislative authority of Parliament to prescribe different bail arrangements for different categories of offences.

Indeed, the Court considered examples of other legislation where Parliament has created special bail regimes.

The constitutional problem with Clause 17 was more specific. The problem was that, once the statutory conditions were satisfied, the Magistrate would effectively be precluded from exercising judicial discretion concerning release on bail.

The Court therefore drew a distinction between: Parliament prescribing the legal framework within which a Court exercises discretion, and Parliament removing the Court’s ability to exercise that discretion in the individual case. It was the latter consequence that engaged the constitutional protection of judicial power

Why Does This Trigger a Referendum?

This brings us to the most significant part of the determination.

The Court found Clause 17 to be inconsistent with Article 4(c), read with Article 3, with Article 13(2) further supporting the conclusion. Because Articles 3 and 4 concern the sovereignty of the People and the constitutional manner in which that sovereignty is exercised.

The Constitution establishes that judicial power — which forms part of the sovereignty of the People — is exercised through the Courts. Therefore, where legislation substantially interferes with the constitutionally protected exercise of judicial power, the issue is no longer simply one of ordinary legislation. It engages the constitutional sovereignty of the People themselves.

Article 83 consequently becomes relevant. Where a Bill is inconsistent with provisions of the Constitution specified in Article 83, it cannot ordinarily be enacted merely through the ordinary legislative process. It requires the special majority contemplated by Article 84(2) and approval by the People at a Referendum under Article 83.

The Court’s determination was expressly that Clause 17, in its present form, may become law only if passed with the special majority required under Article 84(2) and approved by the People at a Referendum in terms of Article 83.

Note: Strictly speaking, the Supreme Court did not require the entire Anti-Corruption (Amendment) Bill to be approved at a referendum. Its determination was specifically that Clause 17, in its present form, requires both the special parliamentary majority and approval by the People at a referendum.