Latest (Wednesday): day one ran until about 10.30pm before the bench adjourned. The hearing is now in its second day, with the intervening petitioners and then the Attorney General still to be heard. Jump to the latest update.

Chief Justice Preethi Padman Surasena has nominated a five-judge Supreme Court bench to hear the petitions challenging the proposed 22nd Amendment to the Constitution, with hearings due to begin on Tuesday.

The Chief Justice will preside. The remaining members are Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath Abeykoon and Gihan Kulatunga, the Daily Mirror and NewsFirst both reported on Monday.

The matters before the bench are Special Determination petitions, the procedure by which the Supreme Court rules on whether a proposed constitutional amendment has been presented lawfully and what majority Parliament needs to pass it.

The bench was named on the day filing closed

The composition answers a question left open over the weekend. When nearly 30 petitions had been filed and the filing window was closing on Monday, no outlet had reported when the Chief Justice would constitute the bench or who would sit on it. Both details emerged within hours of the deadline passing.

Of the 30 petitions counted by NewsFirst on Sunday night, 27 opposed the amendment and three supported it. Neither outlet has published a final tally now that filing has closed.

Five judges is not a full bench

The number matters because of what the Bar Association of Sri Lanka has been asking for. The BASL filed a motion on 29 August seeking a full bench of the court, arguing that every sitting Supreme Court judge has a direct interest in the outcome because the amendment would extend their own tenure. It invoked Section 49(3) of the Judicature Act and asked for the motion to be supported in open court on 31 August, 1 September or 2 September.

A five-judge bench is larger than the three judges that hear most Special Determination references, but it is not the full court. Neither the Daily Mirror nor NewsFirst reported whether the BASL motion has been ruled on, withdrawn or is still to be taken up when the bench sits.

What the court has to decide, and by when

The amendment’s central clause would raise the retirement age of Supreme Court judges from 65 to 67 and of Court of Appeal judges from 63 to 65, while capping the Chief Justice’s tenure at six years. A second clause would increase the number of Court of Appeal judges from 19 to 24.

Under the Constitution the Court has three weeks from the filing of a challenge to deliver its determination to the Speaker. That clock now governs the government’s own timetable: Cabinet spokesman Nalinda Jayatissa has placed the parliamentary debate at the end of September or early October, and Justice Minister Harshana Nanayakkara said on Sunday that the government would not back down.

The central question for the bench is whether a two-thirds majority in Parliament is sufficient, or whether the amendment must also be approved at a referendum — the outcome the BASL is seeking.

What has not been reported

Neither outlet said what time the bench sits on Tuesday, whether all the petitions will be taken together, or how long the hearing is expected to run. Neither reported the final petition count.

The two outlets also differ on the spelling of two judges’ names: NewsFirst gives Obeysekera and Abeykoon, the Daily Mirror Obeyesekere and Abayakoon. This report follows the forms used in earlier Sri Lankan court reporting.

Update: the hearing opens with a record filing

The Supreme Court began hearing the petitions on Tuesday morning before the five-judge bench as constituted, Ada Derana reported. The Daily Mirror said the petitions were listed for 10 a.m.

The final tally answers the question left open above. A total of 67 Special Determination petitions were filed against the 22nd Amendment Bill, of which 41 were submitted online, Hiru News reported. A further five petitions were filed against the related Judicature (Amendment) Bill. Ada Derana gave the same two figures.

The Daily Mirror described 67 as a record — the largest number of petitions ever filed over a constitutional amendment in Sri Lanka. No other outlet made that claim, and the Daily Mirror did not say which amendment previously held the record.

The count has moved steadily as filing progressed: 37 by 19 August, nearly 30 counted by NewsFirst on Sunday night in a separate tally, and 67 once the window closed.

The bill’s timetable

Hiru supplied the procedural history none of Monday’s reports carried. The bill was presented to Parliament on 18 August by Justice Minister Harshana Nanayakkara, opening a two-week window in which it could be challenged before the Supreme Court. That window expired on Monday. The court issued notices to the Attorney General on Monday evening directing that the facts be presented.

A courtroom too small

The bench adjourned for 15 minutes shortly after taking up the petitions, and moved the hearing to a larger room.

President’s Counsel M.A. Sumanthiran told the court that proceedings should be held in Courtroom No. 501, the ceremonial courtroom, which has greater seating capacity, and submitted that under the Constitution court proceedings are to be conducted in public so that members of the public can observe them, the Daily Mirror reported. The bench agreed and shifted the hearing to Courtroom 501.

The two accounts differ on which room was originally listed. The Daily Mirror said the petitions were taken up in Courtroom 502 although the daily court list had assigned them to 501. Ada Derana reported the reverse — that they had been scheduled for 502 and were moved to 501 on the application of counsel. Both agree the hearing ended up in 501 and that Sumanthiran made the request.

Update: the court refuses a full bench

The Supreme Court rejected the application to have the petitions heard by a bench of all the court’s sitting judges, Ada Derana reported. Delivering the order, the Chief Justice said the request was refused and that consideration of the petitions would continue before the existing five-judge bench.

That answers the question left open above. The full-bench question — raised in writing by the Bar Association on 29 August and pressed orally in court on Tuesday — has now been decided against the petitioners.

Who asked, and what the state argued

President’s Counsel M.A. Sumanthiran made the application when the petitions were called, asking the court to arrange for them to be heard by a bench comprising every sitting judge of the Supreme Court. President’s Counsel Saliya Pieris, Ali Sabry, Geoffrey Alagaratnam, Eraj de Silva, Srinath Perera, Anura Meddegoda and Maithri Gunaratne, with other counsel appearing for several petitioners, made the same request.

Solicitor General Viraj Dayaratne, for the Attorney General, opposed it. He submitted that the authority to determine the composition of a bench rests with the Chief Justice, citing Article 132(3) of the Constitution, and argued that the discretion as to how many judges sit is the Chief Justice’s alone, with no other party entitled to interfere.

President’s Counsel Nigel Hatch, appearing for an intervening petitioner, also submitted that the discretion rests with the Chief Justice.

The bench adjourned for 15 minutes to consider the submissions before delivering its order — a second, separate 15-minute adjournment from the one described above, which was about seating capacity.

The underlying argument the court has now set aside is the one the BASL advanced when it filed its motion: that every sitting Supreme Court judge has a personal interest in an amendment that would extend judicial tenure, so all of them should sit. No outlet reported the court’s reasoning beyond the order itself.

The courtroom question resolves

Hiru News says the hearing began in Courtroom 502 and was relocated to 501 after the bench considered the request about insufficient space. That matches the Daily Mirror’s account and is the reverse of Ada Derana’s, resolving the discrepancy noted above in the Daily Mirror’s favour.

Hiru also gives the fullest description of who is before the court: the 67 petitions come from political parties, individuals, civil society organisations, trade unions and the Bar Association of Sri Lanka, and seek an order that the bill be passed by referendum.

The hearing moves to the merits

NewsFirst’s account of the day is the first to report what counsel argued after the full-bench question was decided, and it sets out the constitutional case now before the court.

It also confirms the sequence: the hearing opened in Courtroom 502, moved to 501 on the application of counsel who said the room lacked capacity given the public interest, the full-bench request was then made and opposed, the bench adjourned for 15 minutes, and on resumption the Chief Justice announced that the petitions would continue before the originally appointed five-judge bench. That is a third outlet confirming the 502-to-501 direction.

NewsFirst gives Viraj Dayaratne’s rank as Additional Solicitor General, where the account above has Solicitor General.

For the Bar Association, President’s Counsel M.A. Sumanthiran addressed the court once the bench was settled. NewsFirst quotes him:

“Your Lordships, this Bill directly violates Article 3 of the Constitution. Judicial independence is one of the most important components of the sovereignty of the people. However, the proposed Bill undermines the independence of the judiciary and thereby infringes upon the sovereignty of the people. Article 3 is directly linked to Article 4 of the Constitution. Article 3 concerns sovereignty and fundamental rights. Therefore, if any amendment affects matters connected to Article 4, a referendum becomes essential. Before filing this petition, the Bar Association convened a General Meeting. It was unanimously decided that this petition should be filed.”

That last sentence is the first confirmation that the BASL petition, filed on 24 August by association president Rajeev Amarasuriya and secretary Nalin De Silva, was authorised by a unanimous vote of a general meeting rather than taken by the office-bearers alone — the same unanimity the association showed when its special general meeting adopted seven resolutions against extending judges’ retirement age in July.

For former minister Professor G.L. Peiris, President’s Counsel Ali Sabry argued the amendment conflicts with Article 170 and relied on precedent:

“Your Lordships, this amendment directly conflicts with Article 170 of the Constitution. The balance of power in a democratic state exists between Parliament, the Executive and the Judiciary. If the independence of the judiciary is compromised, that balance of power is directly affected. Based on the Supreme Court determinations relating to the 18th and 19th Constitutional Amendments, any amendment affecting these provisions must necessarily be approved at a referendum in addition to obtaining the required parliamentary majority.”

Both submissions run to the same destination — that a two-thirds majority alone is insufficient — by different routes: Sumanthiran through the Article 3 and 4 sovereignty link, Sabry through Article 170 and the court’s own determinations on the 18th and 19th Amendments.

Counsel for several other petitioners also made submissions, NewsFirst said, and the hearing continued. It did not report any submission from the state on the merits, or any response to the Article 3 argument.

Sumanthiran’s appearance for the BASL immediately after the ruling suggests the association’s written full-bench motion was subsumed into Tuesday’s oral applications rather than disposed of separately, though no outlet says so directly.

Three weeks to report to Parliament

The Supreme Court has three weeks from Tuesday to determine whether the amendment requires a referendum, Cabinet Spokesperson Minister Nalinda Jayatissa said at the weekly Cabinet media briefing, according to Ada Derana. The court will consider all the petitions before communicating its determination to Parliament, and will decide whether a two-thirds majority suffices or a referendum is also required.

Jayatissa added that a referendum cannot be held on the amendment without a Supreme Court determination, whether the request comes from the government or the opposition.

His three-weeks-from-Tuesday framing is slightly narrower than the constitutional rule described above, under which the clock runs from the filing of a challenge. Ada Derana did not report the discrepancy, and no outlet has given a date by which the determination is due.

Still open

No outlet has reported the court’s reasoning for refusing the full bench, how many of the 67 petitions oppose the bill and how many support it, or the exact date the determination must reach the Speaker. None has stated explicitly how the BASL’s written motion of 29 August was disposed of.

Update (Wednesday): the hearing runs late and the Attorney General is next

Submissions by the petitioners’ side concluded at around 10.30pm on Tuesday, after which the bench adjourned the hearing until Wednesday, Ada Derana reported.

A Supreme Court sitting past 10pm is unusual, and none of the outlets that covered the opening day noted it as such or explained why the bench sat so late. It is the first indication of how long the court intends to take: with 67 petitions to hear inside a three-week constitutional deadline, the bench appears to be compressing the timetable rather than extending it across more sitting days.

The running order for Wednesday

Ada Derana set out what remains. The petitioners have submissions still to finish. After them come the intervening petitioners — the parties who filed in support of the bill rather than against it — and then the Attorney General.

That sequence matters because it dates the state’s answer on the merits, which this article previously recorded as unreported. The court issued notice to the Attorney General on Monday evening directing that the facts be presented; the state’s substantive case is now scheduled for Wednesday. Until then the only submission on record from the Attorney General’s Department is Solicitor General Viraj Dayaratne’s opposition to the full-bench application, which was a point of procedure rather than a defence of the amendment.

The hearing resumed on Wednesday morning before the same five-member bench of Chief Justice Preethi Padman Surasena and Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath Abeykoon and Gihan Kulatunga.

Why counsel asked for every judge

Ada Derana’s longer account of the first day gives the argument behind the full-bench application in more detail than earlier reports.

President’s Counsel M.A. Sumanthiran, for the Bar Association, submitted that the bill directly affects judicial independence because it would extend the term of the Chief Justice by two years as well as raising the retirement age of the other judges. That is a sharper version of the BASL’s written motion, which put the point as a general interest shared by all sitting judges: Sumanthiran’s oral submission located the conflict in the presiding judge specifically.

The same report confirms that the bill was gazetted on 7 August, eleven days before it was tabled in Parliament — a date none of Monday’s or Tuesday’s other filings carried.

What is now settled

The retirement ages in the bill are confirmed across filings: Supreme Court judges would go from 65 to 67, and Court of Appeal judges from 63 to 65. The 67 petitions include both challenges to and expressions of support for the amendment, with 41 filed online, and a further five petitions target the related Judicature (Amendment) Bill.

Day two opens

Two further outlets confirmed on Wednesday morning that the hearing had gone into its second consecutive day before the same five-member bench.

Hiru News sets out the running order for the day in the same terms as Ada Derana: submissions from the petitioners resume, followed by the intervening petitioners and then the Attorney General. It confirms that the petitioners’ submissions concluded around 10.30 on Tuesday night, and that the 67 petitions seek an order that the bill be passed by referendum.

NewsFirst, filing at 7.28am, adds that Additional Solicitor General Viraj Dayaratne presented facts on behalf of the Attorney General. Its wording does not make clear whether that refers to Tuesday’s proceedings — where Dayaratne appeared on the procedural question of the bench’s composition, as recorded above — or to the state’s substantive case now scheduled for Wednesday. No outlet has yet reported the Attorney General’s argument on the merits.

Neither report gives a sitting time for Wednesday, and neither says how many further days the bench expects to sit.

A note on the names: Hiru renders two of the judges as Achala Vengappuli and Sampath Abeyekoon, a third set of spellings alongside those already noted. NewsFirst uses Wengappuli and Abeykoon, the forms followed in this report.

Sources