It is reported in the media that President Rajapaksa has referred to the Supreme Court for its opinion the question of his own competency to contest a further term, and that the Registrar of the Court, on the instructions of the Chief Justice, has written to the President of the Bar Association of Sri Lanka inviting submissions in writing but denying an opportunity to make oral arguments in Court. Furthermore, submissions are required to be submitted to Court no later than 3.00 pm on 7 November, which gives anyone less than 48 hours to do so. It appears that the Court is required to give its opinion to the President on 10 November 2014 (read the full letter here).
It is evident that President Rajapaksa has made this reference purportedly acting under Article 129 (1) of the Constitution, which provides for the Court to exercise it consultative jurisdiction. A president, acting under this provision, may refer ‘a question’ (not any question) ‘which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it’. Naturally, the question that ought to be asked at the outset is: is the question on which the reference has been made one of public importance? There is no doubt that a serious question has arisen about the incumbent’s eligibility as an individual to contest a further term but that does not make the question one of public importance to be resolved by the Supreme Court in the exercise of its consultative jurisdiction. It is not a question that affects him qua President but as Mahinda Rajapaksa. It is an improper invocation of the Court’s jurisdiction.
It is a question that affects Mahinda Rajapaksa’s fortunes in his individual capacity. The Supreme Court does not exist to give private opinions to individuals and the fact that it relates to the eligibility of a person who happens to occupy the office of the President does not transform it into one that affects the Presidency or make it a question of public importance.
If he so wishes Mr Rajapaksa may invoke the jurisdiction of the Court of Appeal under Article 140 or the District Court and seek a declaration. The Court would in turn refer it to the Supreme Court as it would involve the interpretation of the Constitution. Ultimately the question might reach the Supreme Court, but through a different route, following a different procedure which would give the Court and relevant parties sufficient time and opportunity to participate in the proceedings. The reference is obviously intended to short circuit those procedures and to preclude full argument on the issues involved.
The question on which the Court’s opinion has been sought is itself one which has been in the public domain for several months and Mr Rajapaksa could have sought this declaration by going to Court several weeks ago. There is no apparent reason for the expeditious manner in which the Court has set out to act. The President might have given the Court a deadline by which to report to him with its opinion but that does not mean that the Court should act blindly to his bidding and not give an informed opinion, which can only be arrived at by hearing full argument on this question from all interested parties.
Article 129 (1) does say that the Court ‘may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon’
In my view it would be impossible for the Court to arrive at a considered opinion within such a short period of time as is specified in its letter to the BASL. Even if the President had specified a time frame for the Court to give its opinion there is provision for it to be extended. Instead of blindly adhering to the impossible deadline set by the President, the Court should seek from the President the reasons why it is being asked to give its opinion urgently and in any event ask the President to give it sufficient time to address it and seek an extension.
An opinion given in haste is likely to be erroneous as has been proved by the Court’s own opinions regarding the Third and Eighteenth Amendments. If no extension is given it would be sensible for the Court to refuse to give its opinion.
A significant feature about the Court’s consultative jurisdiction is that it has failed to frame rules of guidance setting out the procedure that it would follow when responding to a reference made to it in terms of this jurisdiction.
The Presidential term has two more years to run and there is no reason why the Court should show such urgency in giving its opinion. The Court ought to decline giving an opinion but going by past experience this is unlikely to happen.
The writer is an Attorney-at-Law