Commonwealth Lawyers Association (CLA) President Steven Thiru has raised several concerns over procedural fairness, transparency and public confidence arising from the Supreme Court proceedings challenging Sri Lanka’s proposed 22nd Amendment to the Constitution.
In a report dated Sept. 7 following his visit to Sri Lanka, Thiru said he attended the second day of the Supreme Court hearing on Sept. 2 as an observer at the invitation of the Bar Association of Sri Lanka (BASL). The CLA said its involvement was linked to its commitment to judicial independence and the rule of law.
A total of 67 petitions, including one by the BASL, were filed challenging the proposed amendment, while 27 interveners opposed the petitions. The cases were heard by a five-member bench headed by Chief Justice Preethi Padman Surasena.
The BASL had sought the recusal of the Chief Justice and requested that the cases be heard by a full bench comprising all 17 sitting Supreme Court judges. Both motions were dismissed by the five-member bench on Sept. 1. Thiru said he was informed that no reasons were given for the dismissal other than that the court had jurisdiction to hear the matter.
Addressing the recusal issue, the report said petitioners had raised a potential conflict of interest on the basis that the Chief Justice would be the first Supreme Court judge who could benefit from the proposed amendment.
Thiru stressed that his observation was not intended to suggest that the Chief Justice was actually biased or that the recusal request was necessarily justified. However, he said sufficiently clear reasons were important to prevent questions arising over perceptions of impartiality and procedural fairness.
The CLA President also questioned the decision not to constitute a full bench, saying that in the absence of publicly apparent reasons, it could raise questions over public confidence in the empanelling process and the institutional impartiality of the court. He clarified that this did not by itself establish that the composition of the bench was unlawful.
The report further highlighted that, apart from the Chief Justice, several of the Supreme Court’s most senior judges were not included in the five-member bench. It specifically noted that the four judges immediately senior to Justice Achala Wengappuli — Justices Yasantha Kodagoda, A.H.M.D. Nawaz, Shiran Gooneratne and Janak De Silva — were not on the bench.
Another concern related to the refusal to allow petitioners to make oral submissions in reply after arguments by the interveners and the Attorney General’s side. Petitioners were instead permitted to submit written replies.
Thiru described the denial of an oral reply as “unusual” in the circumstances, noting that the court had heard arguments until 10:45 p.m. on the first day and could potentially have heard replies after proceedings ended at 5:30 p.m. on the second day.
The report also noted that the BASL subsequently informed the Supreme Court that it would not submit post-hearing written submissions, referring among other matters to the decision not to permit oral replies.
During his visit, Thiru sought meetings with Justice Minister Harshana Nanayakkara and Opposition Leader Sajith Premadasa to discuss judicial independence. He was unable to meet the Justice Minister but met Premadasa and discussed maintaining public confidence in the independence and impartiality of the judiciary.
Concluding the report, Thiru stressed that his observations did not amount to a concluded view on the merits of the petitions or issues awaiting determination by the Supreme Court.
However, he said the procedural issues identified warranted “careful scrutiny” in the interests of procedural fairness, transparency and public confidence in the administration of justice.
He said confidence in the impartiality of judges, the composition of the bench and the opportunity given to parties to present their cases was particularly important in constitutional matters, adding that maintaining confidence in the judiciary was fundamental to the rule of law and judicial independence. (Newswire)
Download the full report ⬇️
Report on the Visit of the President of the Common_260907_173003