CJ
and AG clash over jurisdiction
By Chandani Kirinde
Attorney General K.C. Kamalsabayson's submission that the opinion
of the Supreme Court which the President has sought on the question
of law relating to the exercise of executive powers of defence is
non-binding, led to an exchange of words between Chief Justice Sarath
N. Silva and the Attorney General in open court on Friday.
The Chief Justice
who said that the Attorney General's submission was 'outrageous'
said he was surprised that Mr. Kamalasabayson was making such a
submission. The Attorney General held the view that the President
was only seeking an opinion from the Court and in this instance
the Court was exercising consultative jurisdiction and not judicial
power.
The Chief Justice
said that the Court can exercise judicial power and nothing else
and said he was surprised the AG was making such a submission. The
case came up before a five-member Bench of the Supreme Court comprising
Chief Justice Sarath N. Silva (Chairman) and Justices Shirani Bandaranayake,
Hector S.Yapa, J.A.N. De Silva and Nihal Jayasinghe.
The case has
been referred to the Court by the President for a ruling on the
constitutionality of the regulations made by the Defence Minister
to retire commissioned officers of the Army at the age of 55. The
reference was made under Article 129 of the Constitution to obtain
the opinion of the Supreme Court on a question of law relating to
the exercise of executive powers including the defence of Sri Lanka.
Under Article
129, 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 maybe extended
by the President, report to the President its opinion thereon.
President's
Counsel H.L. De Silva and Senior counsel R.K.W. unasekera made submissions
on behalf of the applicant whereas the Attorney general represented
the State. Mr. De Silva said these proceedings are unprecedented
and that it is the first occasion an application has been made to
court for the expression of an opinion under Article 129. He said
that under the Constitution, sovereignty is in the people and is
inalienable and this sovereignty of the people is exercised under
Article 4 (b) of the Constitution by the President elected by the
people.
Article 4 (b)
says the executive power of the people, including the defence of
Sri Lanka, shall be exercised by the President of the Republic elected
by the people.
He said that the appointment of the defence minister was a delegation
of power not a divest.
There is an
essential difference between delegation and divesting. Delegation
is only permission to acting in that capacity until that power is
revoked. No other interpretation is possible especially in the field
of defence which is so much part and parcel of the executive power,
Mr. De Silva submitted. He also pointed out that there were other
powers vested in the President relating to the subjects of defence.
Article 33 (e) gives the President the power to declare war and
peace.
The President
alone possesses the power to declare war and peace. Any attempt
to change this would be an attempt to encroach on the President's
power. He said the primary question that the Court has to look into
is if there is a right to override any decision taken by the President.
The Attorney
General who made submissions said that the President is not a minister
and under the Constitution, she has been provided with a machinery
to exercise these powers. There is a minister of defence and he
is entitled to make a regulation. The role of a minister is different
from the role of the President, the Attorney General submitted.
The Chief Justice
held that the President has to exercise her powers directly, otherwise
it was a violation of the Constitution. Army officers are not considered
as public officers. They come under the purview of the Commander
in Chief, the Chief Justice said. He also said that the Constitution
clearly states that the President shall exercise the executive power
of the people including the defence of Sri Lanka. There is a specific
reference to defence in the Constitution, he said. The court will
make order on Nov. 4.
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