Monday, 10 November 2014 00:00
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By H.K. Seneviratne
The Registrar of the Supreme Court by letter dated 2nd November 2014 addressed to the President of the Bar Association of Sri Lanka has stated His Lordship the Hon. Chief Justice has directed the Registrar of the Supreme Court to inform the President of the Bar Association that His Excellency the President in terms of Article 129 (1) of the Constitution, has referred to the Supreme Court the following questions for its consideration and for an opinion to be submitted to His Excellency on or before 10th November2014 :-
“(a). Whether in terms of Article 31 (3A)(a)(i) of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, have any impediment, after the expiration of four years from the date of commencement of my second term of office as President on 19th November 2010, to declare by Proclamation my intention of appealing to the People for a mandate to hold office as President by election, for a further term; and
(b). Whether in terms of the provisions of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, and was functioning as such on the date the 18th Amendment was enacted, have any impediment to be elected for a further term of office.”
The Registrar in this communication has requested the President of Bar Association to inform its membership that written submission in respect of the above mentioned questions will be entertained at the Registry of the Supreme Court until 03 p.m. of 07th November 2014.
The incumbent President by the said referral is seeking to invoke the ‘consultative jurisdiction of the Supreme Court’ which is somewhat different from the exercise of what is called the ‘constitutional jurisdiction’ of the Supreme Court in terms of articles 120,121, 122, 123,125 and 126 of the Constitution.
Article 118 of the Constitution empowers the Supreme Court of Sri Lanka, subject to the provisions of the Constitution, to exercise, among other things, its jurisdiction in respect of the constitutional matters (art.118 (a)) and consultative jurisdiction (art.118 (d).
As regards the constitutional jurisdiction of the Supreme Court , in terms of articles 120,121,122 ,123 and 125 , it will inquire into or pronounce upon the constitutionality of any Bill or any provision of thereof or its due compliance with the legislative powers. It could also do so where any of such questions arises in the course of any proceedings in any other court or tribunal or other institution that administer justice or judicial or quasi-judicial functions.
In the ordinary exercise of constitutional jurisdiction to determine the constitutionality or otherwise of any Bill or any provision thereof the President or any ordinary citizen may in writing addressed to the Supreme Court invoke the jurisdiction of the Supreme Court.
In invoking the ‘consultative jurisdiction of the Supreme Court ‘on the other hand only the President is empowered to seek the opinion of the Supreme Court on any matter that the President considers it is of public importance and is expedient to do so in terms of article 129 of the Constitution which states thus –
“129 (1) If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and 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 view of the above provisions certain concerns already made by some for the need for any citizen of the country to participate in the consultative jurisdiction of the Court and public hearing of the proceedings is expelled by the restrictive nature of Article 129 as quoted above.
Further article 129(4) states that every proceeding under paragraph (1) of article 129 shall be held in private unless the Court for special reasons otherwise direct. It is therefore solely at the discretion of the Supreme Court to have any public hearing of such proceedings.
It seems that Supreme Court on its own wisdom has decided to accept written submissions from the Bar Association of Sri Lanka on the issue/s before it. Yet, we are unaware whether the Court has sought observations from any other person or body of persons in relation to the said “question of law or fact ‘referred to it by the incumbent President.
Under question (1) submitted to the Supreme Court the date of commencement of the second term of the incumbent President has been specified as 19th November 2010 vis-à-vis the contention of legal experts that the incumbent the President was elected for his second term on 26 January 2010 and the 18th Amendment become Law on 9th September 2010 that failed to repeal the provisions retroactively consequent thus being the incumbent President was continued to suffer from the disabilities under the repealed provisions. Would oath of office of the second term being taken on a date subsequent to the Eighteenth Amendment become Law cure or cured the disability suffered from January 26, 2010 without an amendment to the Constitution that would expressly repealing the impugned disability retroactively ?
The writer is an Attorney-at-Law, LL.B
