According to a letter written to the Bar Association by the Registrar of the Supreme Court, the President of Sri Lanka has, under Article 129(1) of the Constitution, referred to the Supreme Court two questions for its consideration and opinion to be submitted to the President on or before the 10th of November 2014.
After careful reading of the two questions, posed as (a) and (b) ,it becomes glaringly clear that what is being attempted is a political trick and an opinion of the Supreme Court has been requested to give credence to this trick with. The Supreme Court needs to refuse to submit an opinion in terms of this request for the following reasons:
- As Article 129(1) of the Constitution cannot be used as a political trick and the role of the Supreme Court clearly mandates that the independence of judges should be maintained and seen to be maintained by the Supreme Court clearly standing outside any political strategy or scheme of the government or the President, or anyone else.
- To invoke the jurisdiction of Article 129 (1) there should be a question of law or fact which is of public importance and on which it is expedient to obtain an opinion of the Supreme Court. These requirements have not been complied with in the request made by the President. No meaningful question of law or fact has been referred to in the President’s request. This request is legally, logically and linguistically meaningless. Such a request cannot be maintained by the country’s highest court.
A political trick
The President has a mandate to rule for six years. However, the President wants to violate this mandate with the view to gaining political advantage by holding an election while he has two more years to remain in office, as he seems to think that by holding an election at this time he will have a greater advantage against his opponents who may contest him in elections. An issue of gaining a perceived or real advantage for one party in an election against his opponents is not a matter in which the Supreme Court should use its mandate. By the very nature of the judicial role, the Supreme Court needs to be impartial and therefore acting to give undue advantage to any candidate is contrary to the very nature of the judicial role exercised by the Supreme Court.
The political role and judicial role are completely separate, and by no means can these two roles co-exist. The Supreme Court cannot become a part of the government’s strategy or the President’s strategy to remain in power. Article 129(1) does not confer a political role to the judiciary. Therefore, if the Supreme Court is to entertain this request by the President, it will take upon itself a political role. That not only destroys the Supreme Court as a judicial body, but it also destroys the sovereignty of the people of which independence of the judiciary is an integral and inseparable part.
The President can refer a question to the Supreme Court only when it has a meaning in terms of law or fact and when the issue is of public importance. At the present stage, no such question has arisen. The President is the holder of his position and he has two or more years to go before that term ends. Someone who is in possession of a power and a mandate has no reason to ask whether he has such a power and mandate or not. To raise such a question is absurd. Therefore, under the actual factual situation, the questions raised by the President are absurd ones.
It is simple common sense that the President cannot utilise Article 129(1) to raise just any question he likes to the Supreme Court. For example, if the President were to raise a question whether he should shave or have a long beard, or from which doctor he should take his medication, or what he should do in his leisure time, these questions cannot be posed under Article 129(1). For a valid question, the President must satisfy the requirement of meaning. Asking for a mandate when he has a mandate is not a meaningful issue.
Article 129(1) also requires that the question raised should be a matter of law or fact. A question about intention is neither about law nor fact. The President requests an opinion about “my intention of appealing to people for a mandate to hold office.” Clearly, the Supreme Court opinion is sought about an intention of the President. Intentions are not subject matter that can be scrutinized by the Supreme Court. The President can have intentions and change his intentions. These are mental activities going on inside the head of the President. Whatever goes on inside anyone’s head are not “facts”.
There cannot be an issue of law about anyone’s intentions. Therefore, the requirement of there being a question of law and fact has not been fulfilled. For this reason, the Supreme Court is obliged to reply to the President stating that, as the requirements of Article 129 has not been met, the court is without jurisdiction to give any opinion on the reference made by the President.
The Supreme Court cannot thwart the will of the people
The people, by voting the President into power, have expressed their will that he should, within the framework of the law, rule for six years. This will of the people can be frustrated only if the President resigns or he is duly declared unqualified or his term comes to an end. None of these have happened in this instance. Therefore, to express any opinion on this issue will be to go against the will expressed by the people through an election. It is not mere phraseology that the people are sovereign. Both the President and the Supreme Court are subordinate to the will of the people. Neither have a legal power to disturb the will of the people.
Under the pretext of asking an opinion, it is quite clear that what is being asked for is a declaration of the legitimacy of an intention of the President from the Supreme Court, an intention which may later be translated into an action. If the action were to be taken without an opinion endorsing it from the Supreme Court, the people will then have the opportunity to challenge that action. What is being done under the pretext of a reference is to deprive the people of the right to legally challenge whatever action that the President may take in terms of his express intention. The Supreme Court does not have the power or jurisdiction to do this.
Interfering with the powers of the Commissioner of Elections
It is the Commissioner of Elections who has the power to call for elections. It is also his power to declare whether an election has been properly held and whether a conclusion has been correctly arrived at. Whatever intention that the President may have, when it comes to the real action of calling an election it is not the President but it is the Commissioner of Elections who can decide on the legitimacy of such a course of action. If the Supreme Court declares its opinion, the Election Commissioner will be bound by the opinion, or it could be made to appear to the public that the Election Commissioner is bound by such opinions. This means that the Election Commissioner will be deprived of his right to decide on the issue.
By depriving the Election Commissioner of his right to decide on this issue, people are also deprived of their opportunity to contest whatever proposal is made by the President before the Election Commissioner. Other parties that will context the election may want to challenge the President’s intentions. It is their legitimate right to do so. The Supreme Court should not act in a manner that deprives the opportunity of the other contestants to challenge the President’s intentions before the Commissioner of Elections.
For all these reasons, the only course of action that is open to the Supreme Court is to inform the President that, as requirements of Article 129(1) are not met, it is not a position to entertain the request made by the President. To do otherwise will wound the Supreme Court more than anyone else. The Supreme Court should avoid self-inflicting such a wound.
Will the Supreme Court opinion be binding?
The final question is as to whether whatever opinion that the Supreme Court will give in response to the request of the President will be binding. Obviously the President can change his “intentions” irrespective of whatever the Supreme Court may hold. He can change his intentions as he likes. Therefore, the Supreme Court opinion will have no binding effect on him. It will also not have any binding effect on anyone else other than on the Supreme Court itself. Suppose a question of legitimacy about a call for elections is brought by some citizens before the Supreme Court. If the Supreme Court has already expressed its opinion, then it would be binding on itself as it cannot express two contrary opinions on the same matter. The only way that can happen is if a bench of the Supreme Court consisting of a larger number of judges were to express a different opinion. However, such a situation is unlikely given the number of Supreme Court judges available.
Aside from the issue of whether such an opinion would be legally binding, we can ask ourselves whether it would be morally binding. An opinion could be morally binding only if such an opinion is expressed in a credible and morally worthy manner. At the moment, it is quite unanimous opinion in the country that the Chief Justice and many other Supreme Court judges have been hand-picked by the President. There is hardly anyone who believes that the Supreme Court is in a position to give an opinion which will be politically damaging to the President’s political schemes. Under such circumstances, whatever opinion is expressed it will not have any morally binding effect.
The only impact of a Supreme Court opinion expressed in terms of the President’s wishes would be to confirm the public perception of the comic nature of the politics taking place in Sri Lanka. It will only increase the cynicism and pessimism about the future of democracy in Sri Lanka.
*Statement of the Asian Human Rights Commission