By The Pulseline News Desk
The Commonwealth Lawyers Association (CLA) has raised concerns over procedural fairness, transparency and public confidence in Sri Lanka’s judiciary following its president’s observation of Supreme Court proceedings challenging the proposed 22nd Amendment to the Constitution.
CLA President Steven Thiru, in a report dated September 7 following his visit to Sri Lanka, has said several aspects of the proceedings warranted careful scrutiny, particularly given the constitutional significance of the case and the importance of maintaining confidence in the independence and impartiality of the judiciary.
Thiru had attended the second day of the Supreme Court hearing on September 2 as an observer at the invitation of the Bar Association of Sri Lanka (BASL). The CLA has said its involvement was consistent with its commitment to judicial independence and the rule of law.
The proposed amendment has come under significant legal challenge, with 67 petitions, including one filed by the BASL, were presented before the Supreme Court. A further 27 parties had intervened in opposition to the petitions.
The proceedings were heard by a five-member bench headed by Chief Justice Preethi Padman Surasena.
Questions over recusal and bench composition
One of the key concerns highlighted by Thiru relates to the BASL’s request for the recusal of the Chief Justice and its call for the matter to be heard by a full bench of all 17 sitting Supreme Court judges.
Both requests were dismissed by the five-member bench on September 1. Thiru has said he was informed that no reasons were provided for the decisions beyond the court’s determination that it had jurisdiction to hear the matter.
The recusal request was based on a potential conflict of interest, with petitioners arguing that the Chief Justice would be the first Supreme Court judge who could benefit from the proposed constitutional amendment.
Thiru, however, was careful to stress that his observations should not be interpreted as a finding that the Chief Justice was biased, nor as a conclusion that the recusal application was necessarily justified.
Instead, he has argued that sufficiently clear reasons for such decisions were important to avoid questions over perceptions of impartiality and procedural fairness.
The CLA president has also questioned the decision not to constitute a full bench.
He has said that, where publicly apparent reasons for the decision were absent, this could give rise to questions about public confidence in the process by which the bench was constituted and the institutional impartiality of the court.
At the same time, Thiru has made clear that the composition of the five-member bench did not, by itself, establish that it was unlawful.
The report has also drawn attention to the fact that several of the Supreme Court’s most senior judges were not included in the bench. It has 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 part of the five-member panel.
Oral reply becomes another flashpoint
A further concern raised by the CLA has involved the opportunity given to petitioners to respond to arguments made by interveners and the Attorney General’s side.
According to Thiru’s report, petitioners were not permitted to make oral submissions in reply and were instead allowed to submit written responses.
He has described the denial of an oral reply as “unusual” in the circumstances, particularly considering the amount of time available during the proceedings.
The court had heard submissions until 10.45 p.m. on the first day of the hearing, while proceedings on the second day concluded at 5.30 p.m. Thiru has observed that, in those circumstances, the court could potentially have accommodated oral replies after the conclusion of the second day’s arguments.
The issue subsequently became significant enough for the BASL to inform the Supreme Court that it would not file post-hearing written submissions, citing, among other matters, the decision not to permit oral replies.
Wider implications for judicial confidence
Thiru’s intervention comes as the proposed 22nd Amendment has become an increasingly sensitive constitutional and political issue, with the Supreme Court’s determination expected to have significant implications for the Government’s legislative programme.
During his visit to Sri Lanka, the CLA president had also sought a meeting with Justice Minister Harshana Nanayakkara to discuss judicial independence, although the meeting did not take place.
He did, however, meet Opposition Leader Sajith Premadasa, with discussions focusing on the need to maintain public confidence in the independence and impartiality of the judiciary.
Importantly, Thiru has stopped short of expressing a view on the substantive merits of the petitions before the Supreme Court.
His report does not conclude that the court acted unlawfully or that any judge was biased. Instead, it has placed the emphasis on how judicial decisions and procedures are perceived by the public, particularly in a case involving proposed constitutional changes.
“Careful scrutiny” of the procedural issues was warranted, he has said, in the interests of procedural fairness, transparency and public confidence in the administration of justice.
That concern is particularly significant in constitutional litigation, where the credibility of the process can be almost as important as the eventual determination.
Thiru has stressed that public confidence in the impartiality of judges, the composition of judicial benches and the opportunity afforded to parties to present their cases is fundamental to the rule of law.
For Sri Lanka, where judicial independence has repeatedly featured in debates over constitutional reform and institutional accountability, the CLA’s observations add an international dimension to the scrutiny surrounding the 22nd Amendment case.
The Supreme Court’s eventual determination will settle the legal questions before it. But Thiru’s report suggests that the manner in which the court reaches that determination — and the transparency of the procedures surrounding it — will also be closely watched.
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