The president of the Commonwealth Lawyers Association, Steven Thiru, has issued a nine-page report raising concerns over procedural fairness, transparency and the composition of the Supreme Court bench that heard the petitions against the proposed 22nd Amendment, Daily Mirror reported on Tuesday.
The report is the document Thiru said he would prepare when he spoke to reporters on September 2 after observing the hearing in person. He visited Sri Lanka at the invitation of the Bar Association of Sri Lanka.
It lands on the day the court’s determination is constitutionally due. Under Article 121(2), the Supreme Court was required to make and deliver its determination by September 8 — the day Parliament’s sitting week began, with the determination expected before the House this week.
The bench, and the judges not on it
A total of 67 petitions were filed against the amendment, including by the BASL, with the Attorney General as respondent. There were also 27 interveners opposing the petitions. The case was heard on September 1 and 2 by a five-member bench headed by Chief Justice Preethi Padman Surasena, sitting with Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath B. Abeykoon and Gihan Kulatunga.
Thiru drew attention to the absence of the four judges immediately senior to Justice Wengappuli — Justices Yasantha Kodagoda, A.H.M.D. Nawaz, Shiran Gooneratne and Janak De Silva. Seniority alone does not determine a bench, he said, but given the constitutional significance of the case the basis on which it was constituted should be transparent and discernible.
The BASL had sought both the recusal of the Chief Justice and a full bench of all sitting Supreme Court judges. Both applications were dismissed on September 1 and, according to the report, no reasons were given beyond that the court had jurisdiction to hear the matter.
Petitioners had argued the Chief Justice could potentially be the first Supreme Court judge to benefit from the amendment, which raises the retirement age for Supreme Court judges to 67 and Court of Appeal judges to 65. For a Chief Justice, retirement would come at 67 or six years from appointment, whichever is earlier.
Thiru did not suggest the Chief Justice was actually biased, or that the recusal application was necessarily well founded. He said such an application should be addressed with care and transparency, with justifiable reasons given either way. On the full-bench refusal, he said the Chief Justice’s authority over bench composition should not be exercised in a way that appears arbitrary or irrational, citing the Indian Supreme Court’s landmark Kesavananda Bharati v. State of Kerala as an example of larger benches in cases of exceptional constitutional importance.
The refused oral reply
At the close of the hearing on September 2, several counsel for the petitioners asked to reply orally. The Chief Justice declined, allowing written replies by 3 p.m. the following day. Thiru called the denial unusual given the complexity of the issues and the extensive oral submissions made by the interveners and the respondent.
The BASL then filed a motion on September 3 saying it would not tender post-hearing written submissions, citing the refusal among its reasons. A number of other petitioners were reportedly taking the same position.
The hearings ran from 10.30 a.m. to 10.45 p.m. on September 1 and from 10 a.m. to 5.30 p.m. on September 2.
Who would not meet him
Thiru met Opposition Leader Sajith Premadasa to discuss public confidence in judicial independence. He also sought meetings with Justice and National Integration Minister Harshana Nanayakkara and ministry secretary Ayesha Jinasena PC. The report says the minister was unable to meet him as he was not in Colombo, and that no response was received from the secretary.
Thiru stressed his observations were not a concluded opinion on the merits of the petitions, but were intended to identify procedural matters warranting scrutiny. In constitutional matters involving judicial independence, he said, public confidence depends not only on the outcome of a case but on the process by which it is reached.
No other verified newsroom carried the report, and no response from the Government, the Attorney General’s Department or the courts has been reported.
