Understanding the exercise of Judicial
Powers under the Constitution

Last week, Minister of Nation Building, Jagath Pushpakumara, was quoted in more than one newspaper as having said that he would request the President to appoint a commission to review the judgments delivered by former Chief Justice Sarath N. Silva.

This idea seems to have occurred to the Minister after a seven-judge Bench of the Supreme Court headed by the present Chief Justice Asoka De Silva implicitly overruled a 2005 judgment of a Bench headed by Chief Justice Sarath N. Silva regarding the date on which the second term of an incumbent President who has won re-election begins.

The 2005 case took the form of a fundamental rights petition under Article 126 of the Constitution, by a Member of Parliament who claimed that his party’s political work was hampered owing to the uncertainty about the date of the next election.

The 2010 pronouncement was the result of a reference by the President to the Supreme Court under Article 129, whereby he may refer any question of law or fact which is of such nature and public importance that it is expedient to obtain the opinion of the apex court.

However Minister Pushpakumara’s suggestion, as it appeared in the press, has no place under the Constitution, and this column will attempt to explain why.

Firstly, it is a long established principle of law that overruling is prospective, not retrospective. It should not be confused with an appeal or revision application, which is a procedure whereby the finding of a lower court can be challenged in a higher court. Overruling occurs where a Bench hearing a particular case decides to re-interpret the law in respect of the case before it.

This does not happen very often. One of the best known examples in this country concerned the law governing divorce. In 1984 in the case of Muthuranee v. Thuraisingham, the Court of Appeal held that an amendment to the Civil Procedure Code giving parties who had lived apart for seven years the right to sue for divorce by summary procedure virtually created a new grounds of divorce, obviating the need of the plaintiff to prove marital fault on the part of the defendant. The aggrieved party apparently did not seek a further appeal to the Supreme Court.

In 1986 another Bench of the Court of Appeal reached a different decision in the case of Tennekoon v. Somawathie Perera, holding that the amendment to the Civil Procedure Code only changed the procedure for obtaining a divorce where the parties had lived apart for seven years, and did not change the substantive grounds for divorce which still had to be established before a divorce would be granted. In this instance the losing party sought and obtained leave to appeal to the Supreme Court which had to decide which of these conflicting interpretations represented the correct law.

A five-member Bench decided (with one dissenting judge) that the interpretation in Tennekoon v. Somawathie Perera was to be preferred and affirmed that judgment while declaring that the interpretation in Muthuranee v. Thuraisingham was thereby overruled. However the divorce that had already been granted in the latter case was not interfered with.

The practical necessity of following this principle can be well understood when one considers the adverse consequences that could follow from interfering with seemingly final judgments in matters of land ownership, family relationships or employment status, years after the parties have acted on the basis of those judgments.

Returning to the present, an equally apt illustration can be furnished if we consider the recent Supreme Court rulings regarding the commencement of the President’s second term of office.

To re-cap for the benefit of any readers who did not see last week’s article in this paper on that subject, the Third Amendment to the Constitution permitted an incumbent President to call a presidential election any time after completing four years in office (although his full term is six years) and Article 31, sub-article (3A)(d) of the Constitution provides the following formula for determining when the new presidential term of office begins:

"The person declared elected as President at an election held under this paragraph shall, if such person –

(i) is the President in office, hold office for a term of six years commencing on such date in the year in which that election is held (being a date after such election) or in the succeeding year, as corresponds to the date on which his first term of office commenced, whichever date is earlier; or

(ii) is not the President in office, hold office for a term of six years commencing on the date on which the result of such election is declared."

Having called and won a Presidential election in the latter part of 1982, President Jayawardene took oaths for his second term on February 4, 1983, on the anniversary of the commencement of his first term of office which was deemed to have begun on February 4, 1978.

The interpretation of this Article became a matter for the Supreme Court when President Chandrika Bandaranaike Kumaratunga ran for a second term in 1999.

Having commenced her first term on November 10, 1994, President Kumaratunga took advantage of the Third Amendment to call a presidential election on December 21, 1999, approximately 11 months before her term was due to end, and was declared duly elected on December 22.

In a court case filed by a Member of Parliament in 2005, the Supreme Court was asked to determine when President Kumaratunga’s second term would end.

A five-member Bench headed by Chief Justice Sarath N. Silva unanimously determined that President Kumaratunga’s second term began on December 22, 1999, the day on which she was declared elected, and therefore would end six years from that date, namely December 22, 2005.

This judgment came under criticism even at the time it was delivered. If the second term of the incumbent President was to begin on the date that the election result was declared, such person would be in the same position as a candidate newly elected to the post, and there would have been no need for the separate sub-sections "(d)(i)" and "(d)(ii)" quoted above.

This same issue surfaced following the re-election of President Mahinda Rajapaksa on January 27 this year. A seven-member panel headed by the present Chief Justice Asoka De Silva determined that in accordance with sub-section (3A)(d)(i), the President’s second term would begin on November 19, 2010, being the first date after the election coinciding with the day on which he began his first term of office.

Had this determination been made to operate retrospectively, by setting aside the judgment of the Sarath Silva Bench, what would have been the result? Would President Rajapaksa have been asked to step aside so that President Kumaratunga could come back and finish the unexpired period of her term, of which she seems, on hindsight, to have been wrongfully deprived?

This example, one hopes, will close the door on any idea of introducing retrospective overruling.

Furthermore, in any country which claims to function under the Rule of Law, one does not set out to review the decisions of a particular judge, but only, if at all, of a particular case or cases.

The Judicial Service Commission (JSC) comprising of the Chief Justice and two other Supreme Court judges exercises disciplinary control over judges of High Court level or lower. Such judges are removable by the President only on the recommendation of the JSC.

Serving judges of the Court of Appeal and Supreme Court are removable by the President only upon an address of Parliament, on the ground of proven misbehaviour or incapacity. Article 107 of the Constitution prescribes the procedure for doing so.

Under Article 116 of the Constitution, every person who, without legal authority, interferes or attempts to interfere with the exercise of judicial powers or the functions of any judge shall be liable to be tried without a jury and could face up to one year’s imprisonment, a fine and loss of civic rights for up to seven years.

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