By Reeza Hameed –

At last, the Supreme Court’s opinion on the President’s reference has seen the light of day, albeit unofficially, and it makes for miserable reading.

The feature that stands out in the opinion is not only the unctuous tone which the Court has adopted in responding to the President’s request for an opinion, but also the sanctimonious view it has taken of the importance of its own opinion given in an advisory capacity, and the un-judicial language with which it has chosen to castigate those who have taken a view contrary to its own. The engagement of the Court in this manner on a controversial issue at the request of a person who sought its opinion on his capacity to stand for re-election at a poll that he was about to announce is bound to affect its own dignity and standing in the eyes of the public both at home and abroad.

Rajapaksa and the de facto CJ

The defining characteristic of the Court’s jurisdiction under Art 129 is that the question that is referred to it by the President must be one of public importance. The recent reference related to the qualification of the incumbent President in his individual capacity and nobody else. He did not even pose the question as to the qualification of any other person who has been previously elected for two terms. Naturally, the public had an interest in knowing the Court’s opinion on the questions but that does not make it a question of public importance.

The Constitution does not oblige the Court to give an opinion whenever a question is referred to it. The Court ought to say ‘No’ if it is asked to give an opinion on a question falling outside its jurisdiction. The President cannot involve the Court on matters affecting his personal or domestic affairs and the Court cannot and should not allow itself to become entangled in such matters. Many people drew this to the Court’s attention before it gave its opinion but the Court ignored their views.

A similar advisory jurisdiction is reposed in the Indian Supreme Court by Article 143 of the Indian Constitution. The relevant provision in that Constitution reads as follows:

‘If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, 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, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.’

The Indian Supreme Court declined to express an opinion on a reference made by the President relating to the Ayodhya controversy, namely whether a temple originally existed at the site where the Babri Masjid subsequently stood. The Court explained its refusal not only by relying on the wording of the Article, which says that the Court “may” report to the President its opinion on the question referred to it, but also because it took the view that the question was superfluous, unnecessary and opposed to secularism. As Justice Bharucha said, the Court was not willing to compromise its dignity and honour by answering the reference.

The Sri Lankan Constitution, too, states that the Court ‘may’ report to the President its opinion ‘after such hearing as it thinks fit’.  Yet, the Court has virtually regarded itself as duty bound to give its opinion on the reference. In its own words, the reference focussed ‘on a matter of public importance which concerns the irreducible components of sovereignty’ and ‘being the Custodian of judicial power of the people cannot flippantly dismiss the questions as a private matter and refuse to exercise our jurisdiction vested in the Court’. Yet, the Court did not consider it amiss to flippantly dismiss the pleas of interested parties, including the Bar Association of Sri Lanka, whose opinion the Court sought, to make oral submissions.

No rules regarding procedure

A disconcerting feature of the advisory jurisdiction as exercised by the Supreme Court is that it has not framed any rules specifying how it would exercise its jurisdiction under Article 129. In comparison, the Indian Supreme Court has laid down rules announcing the procedure it would follow when it receives a reference from the President. The Indian Court had stated that it will follow as nearly as may be the procedure in proceedings before the court in the exercise of its original jurisdiction. The court may issue notice upon persons or institutions interested in expressing views on the question under reference and may also grant them leave to appear at the hearing.

The words ‘after such hearing as it thinks fit’ in Article 129 (1) of the Sri Lankan Constitution imply the necessity for a hearing. The words ‘as it thinks fit’ do not give the Court a warrant to dispense with a hearing altogether but that was what the Court did. It is not a matter that concerns only the judges who form the Court. The framers must have intended a hearing to ensure that the Court does not form an opinion on a matter of public importance without subjecting the views and counter views to proper scrutiny through an oral hearing at which the various views and counter views may be tested. It is apparent from the tone of the Court’s opinion that it did not take even the written submissions made to it with the seriousness they deserved.

Despite its pronouncement that it was exercising the judicial power of the people when called upon to give the President its opinion, the Court did not adopt a procedure that is appropriate for the exercise of such jurisdiction. Unlike in the exercise of its jurisdiction in respect of other matters, the Court has thus far failed to frame any rules by which it would be guided in relation to its advisory jurisdiction. Rules of procedure such as the ones that the Indian Court has in place would lend the process a degree of transparency, uniformity and predictability which are essential for the Court to maintain its impartiality and credibility as a Court. Instead, the Court followed an ad hoc procedure and went through the process of making up its mind without the public knowing how it went about its business.

The Opinion is not binding

The Supreme Court has made a basic error in stating that its opinion given in advisory capacity acting under Article 129 (1) should be given the same weight as that given to a judgement or determination given by the Court in the exercise of its jurisdiction under other provisions in the Constitution. In the words of the Court, ‘it is our solemn duty to emphasize the fact that the effect of our opinion is no different to a judgment that we would pronounce in any one of our jurisdictions’.

Not only is the Court wrong but it has expressed an opinion on a question on which its opinion was never sought. The Court has gone out of its way to gratuitously express this opinion instead of confining itself to the two questions on which it was asked to express an opinion.

The Court has cited the judgement of Sharvananda J in Bandaranaike v Attorney General (1982) 2 Sri L R 786 in support of its proposition that the same weight attached to a judgment of the Court should be attached to an opinion given on the reference. Incidentally, a similar view was expressed by Professor G. L. Peiris some days ago when he stated, on the basis of Justice Sharvananda’s judgment, that an opinion given by the Supreme Court under Article 129(1) of the Constitution ‘has exactly the same authority as a judgment handed by the Court in litigation between parties’.

The Court’s opinion on the Rajapaksa reference has relied also on the Court’s dictum in the Determination on the Appropriation Bill 2013 [SC/SD 19/2013], which has in turn relied on Justice Sharvananda’s statements in the Bandaranaike case. The Court has made the sweeping conclusion that there are ‘compelling reasons as to why advisory opinions proferred by the Supreme Court in the exercise of its jurisdiction in terms of Article 129 of the Constitution should not be treated any differently’ to that of a determination made by the Court under a different provision as in the case of the Eighteenth Amendment.

The Court, I submit, is seriously mistaken in making such a statement; it follows from an obvious misreading of Justice Sharvananda’s observations in the Bandaranaike case.

The Bandaranaike case arose in relation to a Bill that sought to extend the life of the then Parliament. The Speaker had referred the Bill to the Court for its opinion under a different provision of the Constitution, namely Article 122(2), as urgent in the national interest. It was certified on the Bill itself that Parliament intended to pass it by the special majority required under Article 83 and also have it submitted to the people at a referendum. After hearing the Petitioner, the Court made a determination to the effect that it ‘does not have and exercise any further jurisdiction in respect of the said Bill. Three members of the Court are not in agreement with the above views’.

Following this amendment, the Bill was passed with the special majority as the Fourth Amendment to the Constitution and it was submitted to the people at a referendum. While it was pending, Felix Dias Bandaranaike petitioned the Court alleging that no valid determination had been made on the Fourth Amendment Bill on which the Court had already made its determination because of certain errors committed by the Court. His argument was based on Article 132 (4) of the Constitution which requires that a ‘judgment of the Supreme Court shall, when it is not a unanimous decision, be the decision of the majority’ (emphasis added). He sought to distinguish between a ‘judgment’ and ‘determination’ for the purposes of article 132 (4) and contended that only a judgment rendered by the Court may be by a majority whereas a determination required a unanimous decision of the Court. The Court rightly dismissed this argument stating that the provisions of Article 132 (4) prescribing a decision by a majority of the Court applied not only to a judgment but also to a determination and an opinion.

There is nothing in the Court’s judgment in the Bandaranaike case to support the proposition that an opinion expressed by the Court under Article 129(1) shall carry the same weight as a judgment rendered by the Court say, for instance, under Article 126. Given the virtually surreptitious manner in which the Court gave its opinion on the reference and the equally surreptitious and hasty manner in which it went about preparing its opinion without giving an opportunity to interested persons to make oral submissions, it cannot be said that the Court’s opinion is deserving of any weight.

There must be a reason why the framers had deliberately employed the word ‘opinion’ instead of ‘determination or judgment’ used elsewhere in the Chapter conferring the Courts its various jurisdictions. It is to ensure that the same weight attached to a judgement or determination is not attached to an opinion.The Court’s opinion is not even binding on the very person who sought the opinion. Several days have passed since the Supreme Court conveyed its opinion to the President. Yet, neither the President nor the Court has made it available to the public for its edification. The very fact that the President has chosen to conceal the opinion from the public goes to show that he does not regard it as a matter that should concern the public. If, by definition, the questions that have been referred to the Court are of public importance, then it beggars belief as to why the answers to those questions are not made available to the public.

The Supreme Court may be the highest judicial authority in this country but when it gives an opinion it is not acting as such because the jurisdiction that it is called upon to exercise lacks the characteristics of a Court giving a judgement in the exercise of its adjudicatory function. Its opinion is no different to that given by the President’s personal advisers or even the Attorney General, who strangely has been silent even though he is supposed to act as the guardian of public interest.

Conclusion

An opinion given without a hearing is no ‘opinion’ at all and it has no constitutional validity as the Court acted in breach of its constitutional duty to have a hearing on the reference before giving it.

It would have been better if the Court did not get involved at all in this controversial matter, and if its standing were to suffer in the eyes of the people, then it has only got itself to blame.

 *The author, Dr.Reeza Hameed is an Attorney-at-Law