( November 6, 2014, Hong Kong SAR, Sri Lanka Guardian) “A careful reading of the two questions, posed in the letter as (a) and (b), makes it clear that what is being attempted is a political trick; the Court’s opinion has been requested in order to give credence to the political scheme,” pointed in its latest statement issued by the Asian Human Rights Commission, a rights group headquartered in Hong Kong SAR.
According to a letter written to the Bar Association by the Registrar ( click here to read the letter ) of the Supreme Court, the President of Sri Lanka has, under Article 129(1) of the Constitution, referred two questions to the Supreme Court for its consideration. The Court has been asked to submit its opinion to the President on or before the 10th of November 2014.
A careful reading of the two questions, posed in the letter as (a) and (b), makes it clear that what is being attempted is a political trick; the Court’s opinion has been requested in order to give credence to the political scheme.
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 guise, and the role of the Supreme Court mandates that the independence of judges should be maintained, and seen to be maintained, by the Court distancing itself from 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 of public importance, for 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. The request is legally, logically, and linguistically meaningless. Such a request cannot be honoured 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 to gain political advantage by holding an election while he has two more years remaining 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.
Perceived or real advantage for one party in an election against 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 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 be taking up a political role. This will not only destroy the Supreme Court as a judicial body, it will also destroy 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 the term ends. Someone who is in possession of 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, given the facts, the questions raised by the President are absurd ones.
It is common sense that the President cannot utilise Article 129(1) to put any question he likes to the Supreme Court. For example, if the President were to raise a question whether he should shave or grow a long beard, or from which doctor he should take his medication, or what he should do in his leisure time, such 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 about fact. The President has requested an opinion about his “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 matters that can be scrutinized by the 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 have 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 for an opinion, it is 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 endorsed by the Supreme Court, the people will have the opportunity to challenge the action. Under the pretext of a reference, the people are being deprived of the right to legally challenge whatever action 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 Election Commissioner that has the power to call for elections. It is also the Commissioner’s power to declare whether an election has been properly held and whether a conclusion has been correctly arrived at. Whatever intention the President may have, when it comes to the real action of calling an election, it is not the President but the Election Commissioner that 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 the right to decide on the issue.
By depriving the Election Commissioner of the 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 contesting 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 other contestants the opportunity to challenge the President’s intentions before the Election Commissioner.
For all these reasons, the only course of action open to the Supreme Court is to inform the President that, as the requirements of Article 129(1) have not been met, the Court is not in a position to entertain the request made by the President. To do otherwise will wound the Supreme Court the most. The Court should avoid such self-harm.
Will the Supreme Court opinion be binding?
The final question is whether the 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 what position the Supreme Court will take. He can change his intentions as he likes. Therefore, the Supreme Court opinion will not have a binding effect on him. It will also not have any binding effect on any entity other than the Supreme Court itself.
Suppose some citizens bring a question of legitimacy about a call for elections before the Supreme Court. If the Supreme Court has already expressed its opinion, then it would be binding on the Court, as the Court cannot express two contrary opinions on the same matter. The only way this can happen is if a Supreme Court bench, consisting of a larger number of judges, was to express a different opinion. However, such a situation is unlikely given the number of Supreme Court judges available.
Aside from whether such an opinion would be legally binding, one may ask whether it would be morally binding. An opinion can be morally binding only if such an opinion is expressed in a credible and morally worthy manner. At the moment, there is unanimous opinion in the country that the President has handpicked the Chief Justice and many other Supreme Court judges. 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 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 in Sri Lanka. It will only increase the cynicism and pessimism about the future of democracy in Sri Lanka.