15 December, 2017

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President’s Reference To The Supreme Court

By Reeza Hameed

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.

Mahinda and Mohan

Mahinda and Mohan

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, Dr Reeza Hameed is an Attorney-at-Law

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Latest comments

  • 3
    0

    THERE IS A NICE PICS DEPICTING MARA & PACHA (PACHORIS) IN ONE OF THE BANNED SITES IN SRI LANKA. THAT SUMS UP EVERYTHING. I DO NOT INTEND TO MENTION THE NAME OF THE WEB SITE FOR OBVIOUS REASONS. PEOPLE WHO CARE WOULD KNOW.

    IT’S IN A PADDY FIELD, MARA BEING THE CULTIVATOR AND PACHA BEING THE PUPPET.

    VERY PICTURESQUE SITE. PLEASE VISIT AND HAVE A LOOK.

    • 0
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      Where on the earth Presidents sit with CJustices of the states ?
      if not under Rajapakshe Administration, under whom?

      Had this been the case with any presidents ruled the nation since independence ?

      I have heard that CJs in general are not seen taking together with heads of states, since the norms and standards

      Anyways, we dont need to question anymore, if this is the reality with the incumebent s actions. Prima facie evidence to the entire world, the man held JUSTICE of the nation is ONE ANOTHER Sajin Vassa like charactor… ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo ha hi hoo hoo

      • 0
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        Leelawathie,

        You are right. The Chief Justice should honour his post and not be subservient to the Executive on any stage. Unfortunately wrong individuals appointed to CJ’s office have demeaned this post including CJ 43 SB. At least in the end, CJ 43 SB stood her ground when she was summoned by MR, refusing to see him when she was summoned. Sadly this bugger De Facto CJ 44 is like MR’s house boy runs to him whenever he is summoned day or night. Such is the calibre of the present CJ who are not fit for such Honourable posts. This bugger Mohan Peris is like a leach that can not be kept on a mattress. Like a dog’s tail he will always curl and wag before MR. CJ is another Baiya, what to do?

  • 3
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    thus explains the knowledge of law by ‘Game Baiya’ turned lawyer and president of our unfortunate motherland. Looks like he is still wearing hid ‘Amude’ (loin cloth).

  • 2
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    Excellent Dr.REEZA.
    The Supreme Court does not exist to give private opinions to individuals and the fact that it relates to the eligibility of a person……….
    S.Nadesan QC.is not in our midst but you are there to highlight the abuse of Power.

  • 0
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    Dr. Reeza Hameed,
    Your articles on this subject is crystal clear to a layperson like me. Thank you. Hope you continue to shine the light to all people. The Chief Justice’s decision to hear the question by the President appears to me clouded with political themes.

    The President has an LLB. He also has a Minister who was a Professor of Constitutional Law I think. Besides there are so many PCs who would have given him advice on his personal predicament.

    Now that the case is going to be heard I hope the Seven Judges would prevail and act according the constitution and the legal process without bowing to political pressure.

    • 0
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      You are living in a fool’s paradise

  • 0
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    MR survives through corruption. All his appointments are made in a manner to make sure his corrupt practices continue. So he appointed a corrupt CJ too. My question is a court of law is the ultimate place where the public can go to to find respite from their grievances.When this fundamental right is hijacked by are own President what do average people like us do? If the legal fraternity also sits back like the passive masses who really don’t understand what is going on, may I ask you Sir, what the legal fraternity can do to save us from these monsters? I am sure in 25 yrs we will be still writing to CT while Mahinda Rajapakse and his band of brothers will be running a mock.

  • 0
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    Reeza , your analysis is incisive & constructive

  • 0
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    The analysis is fine.

    But in Sri Lankan context, as the judicial system itself paralized as every other systems by the corrupt incompetent political system, its hard to overcome the ongoing MR dominance.

    Also coming out of the MR Family dominance is the only way that can ease the way toward democratization. But that too far from predictable lens at near future, as we lack visionary policy studies and intellectual discourse in this country.

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