Chief Justice has constitutional power to hear 22nd Amendment case despite unwarranted objections
By Legal Correspondent
The recent decision by Chief Justice Preethi Padman Surasena to preside over the Supreme Court bench hearing petitions challenging the 22nd Amendment to the Constitution has drawn criticism from certain quarters, with some arguing that he should have recused himself due to an alleged conflict of interest. However, a careful examination of both Sri Lankan constitutional law and international judicial precedent demonstrates that these objections are legally unfounded and represent a dangerous attempt to manipulate the composition of the judiciary.
The Constitutional Framework
The proposed 22nd Amendment seeks to increase the retirement age of Supreme Court judges from 65 to 67 and Court of Appeal judges from 63 to 65. In the case of the Chief Justice, the amendment provides for retirement upon reaching 67 years of age or completing six years from the date of appointment as Chief Justice, whichever comes first.
This provision has prompted some petitioners, including the Bar Association of Sri Lanka, to argue that the Chief Justice has a personal interest in the outcome and should therefore recuse himself from hearing the case. The BASL also requested that the petitions be heard by a full bench comprising all sitting Supreme Court judges.
Both applications were dismissed by the five-member bench on September 1, with the Court stating that it had jurisdiction to hear the matter.
Article 132(3): The Chief Justice's Discretion
The legal foundation for the Chief Justice's decision to constitute the bench rests firmly in Article 132(3) of the Constitution. As Solicitor General Viraj Dayaratne correctly submitted before the Court, this provision vests the Chief Justice with the discretion to determine the composition and number of judges on a Supreme Court bench.
This is not a mere procedural formality. The Chief Justice's authority to constitute benches is an essential component of judicial administration, enabling the efficient allocation of judicial resources and ensuring that cases are heard by appropriately qualified judges. To suggest that this discretion should be surrendered whenever a litigant raises an objection would effectively transfer control over bench composition from the judiciary to the parties appearing before it.
The Danger of Unsubstantiated Recusal Demands
The recusal application in this case rests on a fundamentally flawed premise: that a judge should step aside whenever an accusation of potential bias is made, regardless of whether that accusation has any factual foundation.
This approach, if accepted, would create a dangerous precedent. Any party dissatisfied with a judge's previous rulings could attempt to remove that judge from future cases simply by filing a recusal motion. This would allow litigants to manipulate the composition of the bench and undermine the independence of the judiciary.
Indian Example
International jurisprudence has consistently rejected this approach. In India, the Delhi High Court recently rejected a recusal plea in the liquor excise policy case, with Justice Swarana Kanta Sharma stating that "recusal would have been an easy path, but it would have amounted to abdication of duty and would have given an impression that any judge could be pressurised by unsubstantiated allegations". The Court emphasised that "a courtroom cannot be a theatre of perception."
Similarly, in the Singapore International Commercial Court case of Bolkiah, the tribunal dismissed objections to the Chief Justice of Brunei's impartiality, finding that the allegations were "unequivocally dispelled" by the objective record of the proceedings.
The Doctrine of Necessity
Even where a genuine question of potential conflict exists, the doctrine of necessity may require a judge to hear a case rather than step aside. In the landmark Indian case concerning the National Judicial Appointments Commission, Justice J.S. Khehar refused to recuse himself despite arguments that his future position as Chief Justice created an institutional stake in the outcome. He invoked the doctrine of necessity, noting that if he were to accede to the prayer, he would be "initiating a wrong practice, and laying down a wrong precedent".
This principle applies with equal force in the present context. If the Chief Justice were to recuse himself whenever a group of lawyers accused him of bias, the functioning of the Supreme Court would be severely compromised.
Distinguishing Real Conflicts from Political Accusations
It is important to distinguish between genuine conflicts of interest and mere political or professional accusations. In the United States case of Williams v. Pennsylvania, the Supreme Court ruled that a Chief Justice's participation in a death penalty case violated the Constitution because he had "significant, personal involvement" as a prosecutor in the critical decision of the defendant's case.
The contrast with the present situation is stark. In Williams, the conflict arose from direct, personal involvement in the underlying criminal proceedings. Here, the Chief Justice is not accused of any personal involvement in the legislative process that produced the 22nd Amendment. He is merely accused by a group of lawyers whose arguments he has previously rejected.
The Indonesian case of Chief Justice Anwar Usman, who was dismissed for failing to recuse himself from a ruling that cleared the way for his nephew by marriage to run for president, demonstrates what a genuine conflict of interest looks like. There, the conflict was direct and familial. No such conflict exists in the present case.
The Appearance of Impropriety Argument
Critics may argue that even if no actual bias exists, the appearance of impropriety requires recusal. However, this argument proves too much. If mere perception were sufficient grounds for recusal, any judge could be removed from any case by a determined litigant willing to make accusations.
As the AfricanLII legal analysis has noted, "accused persons may, especially during a long and difficult trial, deliberately orchestrate a ploy, leaving the presiding officer no option other than to recuse herself and thereafter apply for a permanent stay of prosecution on the basis of inordinate delay and prejudice. Courts should be wary of this".
The same warning applies here. The recusal application in this case appears to be part of a broader strategy to delay or derail the 22nd Amendment proceedings.
The Commonwealth Lawyers Association's Intervention
The Commonwealth Lawyers Association President Steven Thiru has raised concerns about the refusal to constitute a full bench, though he explicitly stated that he did not suggest the Chief Justice was actually biased or that the recusal application was necessarily well founded. He stressed the importance of addressing such applications with sufficient care and transparency.
These are fair points for procedural discussion. However, the Chief Justice has the constitutional authority to determine bench composition, and the Solicitor General correctly noted that Article 132(3) vests this discretion in the Chief Justice. The exercise of this discretion is not arbitrary but is grounded in the Constitution and the practical necessities of judicial administration.
The Reality of Political Pressure
It is impossible to ignore the broader context in which this recusal application has been made. The 22nd Amendment has generated significant political controversy, with opposition parties and activists demonstrating against the government's proposal. Forty professional organisations and trade unions have joined the Bar Association in opposing the amendment.
In this charged atmosphere, accusations against the Chief Justice must be viewed with appropriate scepticism. The Foundation that has filed the most recent action against the Chief Justice, Vinivida Foundation, has been involved in previous challenges to constitutional amendments. The timing and nature of these accusations suggest they may be motivated more by strategic considerations than by genuine concerns about judicial impartiality.
The Chief Justice has both the constitutional authority and the institutional duty to preside over the 22nd Amendment case. The accusations against him are unsubstantiated, and accepting them would set a dangerous precedent that would allow any disgruntled litigant to manipulate the composition of the bench.
International jurisprudence, from India to Singapore to the United States, supports the principle that mere allegations of bias, unsupported by evidence of actual conflict, are insufficient grounds for refusal. The Chief Justice's decision to hear the case is legally sound and constitutionally justified.
The proper forum for addressing concerns about the 22nd Amendment is the courtroom, not the court of public opinion. The Chief Justice should be commended for refusing to abdicate his constitutional responsibilities in the face of unwarranted pressure.