Supreme Courts opinion

on the Presidents
Reference

At last, the Supreme Courts opinion on the Presidents reference has seen
the light of day, albeit unofficially, and it makes for miserable reading.
by Reeza Hameed

- on 11/25/2014

At last, the Supreme Courts opinion on the Presidents 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 Presidents 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.
The defining characteristic of the Courts 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 Courts 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 Courts
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 Courts 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 Sharvanandas 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 Courts opinion on the Rajapaksa reference has relied also on the Courts dictum
in the Determination on the Appropriation Bill 2013 [SC/SD 19/2013], which has in

turn relied on Justice Sharvanandas 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 Sharvanandas 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 Courts 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 Courts 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 Courts 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 Presidents
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.
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 writer is an Attorney-at-Law
Posted by Thavam