Considering the many discussions about the impending Presidential Election an important question on the minds of people is whether the incumbent, President Mahinda Rajapaksa can contest for a third term at a presidential election.

Meanwhile, President Mahinda Rajapaksa himself on November 5 sought the Supreme Court’s opinion on the constitutionality of contesting for a third term under the 18th Amendment to the Constitution in terms of Article 129 of the constitution.

The reference sent to the Supreme Court was as follows:
(a) Whether in terms of Article 31 (3A) (a) (1) 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 November 19, 2010, to declare by Proclamation my intention of appealing to People for a mandate to hold office as President by election, for a future term.
 (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 of the 18th Amendment was enacted, have any impediment to be elected for a further term of office.”

A ten-judge bench comprising Chief Justice Mohan Peiris, Justice K. Sripavan, Justice Chandra Ekanayake, Justice Priyasath Dep, Justice Eva Wanasundera, Justice Rohini Marasinghe, Justice Buwaneka Aluwihare, Justice Sisira J de Abrew, Justice Sarath de Abrew and Justice Priyantha Jayawardena had taken up for consideration the written submissions filed by various individuals and parties. Supreme Court sources said Justice Saleem Marsoof was not present on the bench as he was away on an official overseas tour.

The Supreme Court had received more than 35 written submissions by 3.00 p.m. Friday November 7. Five days later, on November 10, the Supreme Court communicated its opinion to President Mahinda Rajapaksa on the constitutionality of contesting for a third term under the 18th Amendment to the Constitution.

Meanwhile, Leader of the House and Minister Nimal Siri Pala de Silva informed Parliament last Tuesday (11) that the full-judge bench of the Supreme Court was of the opinion that President Rajapaksa had no legal impediment to contest for a third term.

Dailymirror spoke to several legal experts to find out what the implications of the Supreme Court opinion are.

“What the SC judges have done is declare their bias”

-Sarath N. Silva

Sarath N. Silva, former Chief Justice, speaking to  explained that there were serious concerns with regard to the opinion made by the Supreme Court regarding President Rajapaksa running a third time for the Presidency, said, “Under the Article 129 of the 1978 Constitution, the head of state can consult the Supreme Court on a matter of public importance and seek its advice In essence, the head of state can ask for Supreme Court’s guidance on the conduct of the government.

He said that in the past, former President Chandrika Bandaranaike Kumaratunge sought the opinion of the Supreme Court on three instances of public importance. “At the time I was the Chief Justice and I had a public hearing each time before communicating the opinion of the SC. Based on this she took certain steps, some which even went beyond the SC’s advice,” he noted.

"This opinion has been announced in Parliament;  that should not have been done"

“However, the opinion the incumbent President has sought from the Supreme Court is not on a matter of public importance. It is a personal matter; a private concern. The head of state is asking for the Supreme Court’s opinion on Mahinda Rajapaksa’s eligibility to run for a third term. In other words he is asking ‘Can I run for a third term? Do I have any legal impediments in running for a third term? So this is not under the purview of the Article 129,” he added.

The former Chief Justice also explained that there had been no public hearing on the matter and that this consultancy jurisdiction given by the SC has prevented the Supreme Court from exercising an ordinary jurisdiction with regard to this matter and was therefore unfair.

He reiterated that the opinion of the Supreme Court was in no way a ruling and was not binding.
“What it is, in fact, is an opinion and it is just that. Usually such opinions are only a communication between the SC and the head of state. But in this case, this opinion has been announced in Parliament;  that should not have been done,” Mr. Silva said.

However, he explained that while this was not a ruling, it had brought on a much graver issue.
“We have been informed that all 10 SC judges have signed in favour of this opinion. Essentially what they have done is they have expressed their bias on this matter. This is not contempt of court because that is what they have done. If a judge is biased, he is then disqualified from hearing any other cases or petitions pertaining to the matter.

That is the right of any individual – to have his case heard by an unbiased judge. Now, all 10 Supreme Court judges have been disqualified from hearing any petitions that might be brought forward with regard to President Mahinda Rajapaksa’s third term. So who is going to hear such a case? We cannot go before biased judges who have already expressed their opinion, so where are we going to go? It is very unfair that this advisory jurisdiction has prevented an ordinary jurisdiction from taking place. The Chief Justice has not realised the gravity of this matter and the implications of it,” the former CJ added.

“This is a decision of the court”

-K. N. Choksy

K. N. Choksy, PC said, “Although Article 129 of the Constitution refers to ‘opinion’ of the Supreme Court, it is in fact a decision of the Court. This is implicit in Article 129 itself. My reasons for saying so are as follows.

“Firstly Article 129 is not open ended. It is confined to question of law or fact of constitutional importance.The determination is that of the highest judicial authority in the country.

Secondly, the choice of such question is left in the hand of the head of the government. Further the ruling is by the highest judicial authority. Although Article 129 speaks of the ‘opinion’ of the Supreme Court, it is a constitutionally binding ruling by the court. This is an inevitable conclusion. Every question of constitutional or legal importance requires having a finality.

The Supreme Court communication to the President on the question is in effect its decision or ruling on the constitutional question referred to court by the President.”

“Supreme Court opinion is persuasive”

-Manohara de Silva

“A different view of any decision of the Supreme Court can be taken at anytime. But when ten judges of the Supreme Court unanimously hold an [opinion] I think it has tremendous persuasive value. There is no question whether it is binding or not. All judgements of the Supreme Court are of persuasive value. I do not think the public need to have any doubt about it. The law relating to that is very clear,” Manohara de Silva, PC said.

When the Daily Mirror inquired whether what was given by the Supreme Court is binding as it is just an opinion and not a ruling,  Mr. De Silva said it is persuasive.

“It is persuasive; nothing is binding on anybody. When ten judges of the Supreme Court decide on this very particular issue the law is very clear. I think it is wrong question to raise whether it is binding or not; no judgement is binding. The Supreme Court is not bound by its own judgements they can change them anytime; and they do it always. But when the entire Supreme Court holds that view and the entire Bar holds that view I don’t think there is any doubt about it,” he said.

“Any party is free to persuade the court to take a different view”

-Dr. Jayampathy Wickramaratne

Dr. Jayampathy Wickramaratne, PC said that the reasoning of the Supreme Court is unknown.“What is given by the Supreme Court is an advisory opinion; it is not an interparty judgement. My own opinion is that this is not binding.  Any party through another case would be free to persuade the court to take a different view. It is not a hearing in public and ordinary people did not have an opportunity to intervene. That is why it is merely advisory and not binding,” he said.

“Whether the opinion is binding or not has not been decided yet”

-Shibly Aziz

Shibly Aziz, PC who was a former President of the Bar Association, Sri Lanka (BASL) and a former Attorney General said whether the decision given by the Supreme Court is binding or not as a judgement has not been decided yet.

“It is an opinion of the Supreme Court. So you have to consider that as a pronouncement of the Court that has the right to interpret the Constitution. Whether it is binding in the sense of a judgement is something which has not being
decided yet.

But certainly it has to be respected,” he said.

“An opinion is not of an obligatory nature”

-Upul Jayasuirya

Upul Jaysuriya, President of the Bar Association expressed his personal view on the matter in his capacity as an attorney- at- law.
“Article 129 Section 1 and 2 of the Constitution explains what it means when the Supreme Court gives an opinion. In section 1 it explains that the Supreme Court can give an opinion to the President on a matter of public importance. However, this opinion is not a determination and it is not of a binding nature. The Supreme Court can even refrain from giving an opinion. Section 2 says that the Speaker has the power to seek a SC determination on a matter of public importance.”

“Now the other issue is that this is not a matter of public importance. It is a private concern of Mahinda Rajapaksa and it applies only to him. It has nothing to do with the Presidency. Therefore, such matters cannot be referred to the Supreme Court for opinion.”

“However, the matter has been referred and an opinion has been given. But an opinion is not of an obligatory nature. The opinion of the Supreme Court doesn’t determine that Mahinda Rajapaksa can run for a third term of presidency for certain. However, who has the guts to stand up to the opinion of the Supreme Court is another question.”

“Article 134 (2) of the Constitution says that ‘any party to any proceedings in the Supreme Court in the exercise of its jurisdiction shall have the right to be heard in such proceedings either in person or by representation by an attorney-at-law.’ However, the public was not notified with regard to this. The BASL was notified but we were not given a chance to be heard. We should be heard before any ruling is given.”