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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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