Sunday Times 2
Justice must also be seen to be done
“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
The hallowed words of Chief Justice Hewart in R V Sussex Justices ex parte McCarthy, lay down the fundamental principle that judges must not only do justice, but in doing so ensure that it must appear to be done. This is an important principle and on this is rooted public confidence in the judicial system of any country.
An oral hearing would enable the judges of the Supreme Court to ask counsel for clarification on matters which are unclear
On November 5, 2014, the Registrar of the Supreme Court wrote to the President of the Bar Association of Sri Lanka stating that she has been directed by the Chief Justice to inform him that the President has referred to the Court for an opinion on the question of his eligibility to seek re-election, to be submitted on or before November 10, 2014.
The letter requested the BASL President to inform the membership that written submissions will be entertained from them until 3 p.m. on Friday November 7, 2014. With the intervening weekend, it appears that interested members of the public will be deprived of oral hearings and the court itself will be deprived of the benefit of oral arguments.
References to the Supreme Court by the President are part of the consultative jurisdiction of the Supreme Court under Article 129(1) of the Constitution. This Article enables the President to refer to the Supreme Court “a question of law or fact ……which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court ….”
The particular clause goes onto say that “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.”
The Constitution requires the jurisdiction to be exercised by at least five Judges of the Supreme Court, one of whom should be the Chief Justice. Of course the Chief Justice can direct otherwise and recuse himself.
Article 129(4) provides that proceedings shall be held in private unless the Court directs otherwise for special reasons. Private hearings are not imperative. Over the years a healthy convention has been established by the Court, that important Constitutional issues are heard not in private but in public. In such matters the Court has quite rightly had public proceedings, enabling members of the public not only to make representations but also to observe the conduct of the proceedings.
The President has, it appears, required the Supreme Court to report back to him in double quick time, notwithstanding the important and complex constitutional issues that have arisen and despite the question of early elections not arising until the November 19, 2014.
Although the President appears to be rushing the Court, it is still open for the Court to request the President for further time to enable it to conduct public hearings and to fully examine the legal provisions and arguments for and against. The President having understood that the question of his eligibility to re-contest is one of public importance will no doubt oblige a request by the Court for an extension of time.
The letter of the Registrar fails to address several concerns which members of the public may justly have on the procedural aspect of the hearing.
It specifies neither the composition of the bench hearing the matter, nor whether the Court intends to conduct public hearings on the most important Constitutional issue that has arisen since the 18th Amendment to the Constitution in September 2010.
While the notice calls for written submissions by members of the Bar Association, there is no indication whether the Court will entertain written submissions from other interested parties including concerned citizens, political parties, trade unions and professional bodies.
It is known that former Chief Justice Sarath N Silva, the JHU Chairman Ven. Athuraliye Rathana Thera and the JVP have expressed their opposition to the calling of early elections. How will these concerned members of the public be heard by the Court?
In 2003 and 2004, the then President Chandrika Kumaratunga made two references to the Supreme Court headed at that time by Chief Justice Sarath N Silva — one pertaining to the powers of the President vis a vis the Minister of Defence. The second reference was pertaining to the tax amnesty law passed by the then UNP government. No doubt while the references themselves were sent by the Executive President with a political objective in mind, the Supreme Court dealt them in the open. Oral submissions were heard not only from the Attorney General but also from other parties. In 2005 when the President again submitted a reference on the expiry of her term of office, the Supreme Court chose not to deal with the reference but instead heard the Fundamental Rights Application filed by Ven. Omalpe Sobitha Thera on the same issue and made order after hearing all parties.
In 2010 after the last Presidential elections, the present President referred a question for opinion by the Supreme Court on when his next term begins. Public hearings were conducted by a seven judge bench of the Court. The Court heard oral submissions of several parties including the then Attorney General Mohan Peiris PC and D.S. WIjesinghe PC for the President.
Thus it can be seen that when it comes to matters of public importance, especially Constitutional matters, the Court has always thought it fit to conduct public hearings despite the provision in the Constitution making public hearings the exception.
The necessity to have public hearings and oral submissions must be understood in the context that references made on Constitutional issues are not a mere exercise of the Court’s jurisdiction under Article 129(1) but also an exercise of its sacred jurisdiction to interpret the Constitution of Sri Lanka- a jurisdiction within the sole purview of the Supreme Court.
Why is a public hearing so important in the present case?
Firstly it will enable parties other than members of the Bar Association to be heard by the Court. For instance during the determination of the new Constitution Bill 2001 (under the Court’s jurisdiction on Bills) several interested parties including Maduluwawe Sobhitha Thera appeared before the Court. During the 18th Amendment to the Constitution, the Court entertained submissions from Rohan Edirisinghe, Senior Lecturer in Law of the University of Colombo.
Secondly every citizen has a right to know as to the composition of the bench of judges who will determine this important constitutional issue. Will it be a full bench of the entire Supreme Court, or a divisional bench of five, seven or nine judges? Who will be the judges making the determination? Are there any judges on the bench who perhaps should be requested to recuse themselves from hearing the matter? For instance one issue that could arise is that the Chief Justice Mohan Peiris was the Attorney General when the 18th Amendment was determined and made submissions in support of the same. As Attorney General, he, no doubt, would have been concerned in the drafting of the 18th Amendment and perhaps examined the Bill as part of his duties as Attorney General, under Article 77 of the Constitution. Will there be a conflict if he having been Counsel at that time were to determine a matter which essentially arises from the same 18th Amendment?
Public hearings and oral submissions will enable the Court to hear a party which requests the Chief Justice to recuse himself from this particular reference.
Some may argue that written submissions would suffice for the Court to make a determination. Even in cases of lesser importance, many Supreme Court Judges indicate their preference to hear oral submissions of Counsel before they decide on a matter. Lawyers know and recognise that a major part of being a Counsel is one’s skill and ability to convince the members of the bench as to their arguments. This is best done on one’s feet. Numerous cases are heard and judges persuaded and convinced by Counsel making oral submissions. An oral hearing would enable the judges of the Supreme Court to ask counsel for clarification on matters which are unclear. It would enable Counsel to elucidate to Court on the law and answer the questions.
It was re-iterated in Sarath Amunugama’s case in 2000 by the Supreme Court:” As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered, of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”
As I said at the commencement the appearance of justice being done, is so fundamental to public confidence in the judicial system of any country. In our country at a time when the manner of appointments and removal of judges to the superior courts by the President himself has been called into question in recent times and subjected sometimes to sharp criticism, due to the erratic manner in which these have been done, the procedural fairness adopted, will be just as important as the final determination made by the Court, whichever way it might be made.
In February 2000 when the expulsion of Minister Sarath Amunugama was challenged in the same Court, Dr. A.R.B. Amerasinghe, one of the most distinguished members of the Supreme Court at that time, quoted the following words of Megarry, V.C “Those with any knowledge of human nature who pause to think for a moment (are not) likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”
(The writer is an attorney-at-law)