Mahinda tests his Achilles' heel
Sripavan, Hon. Justice Chandra Ekanayake, Hon. Justice Priyasath Dep, PC ,Hon. Justice Eva Wansundera, PC, Hon.Justice Rohini Marasinghe, Hon. Justice Buwaneka Aluwihare, PC Hon. Justice Sisira J de Abrew Hon. Justice Sarath de Abrew and Hon. Justice Priyantha Jayawardena, PC.
Out of these judges, the Chief Justice will choose a bench and the judges so chosen will hold in their judicious hands the future fate not only of the President but also of all Lanka. Until Monday's judgment day, it will indeed be heavy heads that wear the full bottomed wig. For they, the chosen seed of the court's chief, will be called upon to discharge the onerous burden of duty that lies before them. Their judgment arrived at their sole discretion and without appeal to any other body, will determine the course of Lanka's history.
But however just and merited one subjectively holds one's cause to be, howsoever self evidently true and fair one considers it to be, however much one feels that commonsense can dictate no other course but the path that one has chosen and now seeks legal sanction to trek, , the outcome of any Supreme Court hearing is unpredictable. Especially because the apex court has the overriding legal right to overrule past precedents set by lower courts; and with a fuller bench in exceptional circumstances, to even overturn its prior rulings, giving it absolute power to interpret the law as it deems fit with the stamp of finality. If responsibility for the nation's affairs stops at the Presidential table, then final answer to questions of law, is found on this supreme judicial bench
And, in that respect, the President, in soliciting an opinion from the court which, though it may not validly bind him now will still possess an over binding influence in the future if it goes against him, has displayed enormous courage and taken a massive gamble voluntarily. He has taken a risk unasked. The judgment, any judgment for that matter, can go either way. The only safety net is that if the court opinion goes against him, he still has two more years to remain as President till his second six year term expires.
Already with the president's voluntary act, the floodgates have been opened and the Bar Association on Friday was to move the Supreme Court in respect of the President's reference to Court seeking a ruling on his third term bid. Their objection was based on the opinion expressed by law Professor Suri Ratnapala that the 18th Amendment to the Constitution could not have been enacted without the approval of the people at a referendum if it had the effect of retrospectively extinguishing the two term limit. However their request for an oral hearing prior to filing written submissions did not receive a response, the BASL claimed.
Furthermore in another unprecedented move the Chief Justice on Thursday requested all lawyers to give their own written opinion, if they so desired, to the Supreme Court Registrar before 3 pm on Friday the 7th of November in respect of the issues raised by the President to the Supreme Court for an opinion. This request by the Chief Justice was duly sent by the Bar Association Secretary via SMS to all lawyers to tender their opinion gratis. Only 35 out of the 14,000 strong Bar Association membership responded - not surprising, for members of a profession known to lapse into silence if asked even by a close friend 'do you think it will rain today?' unless fees are paid beforehand for a forecast.
America which has called for a Rajapaksa regime change in Lanka will be watching the proceedings closely with interest. So will UNP leader Ranil Wickremesinghe who also called for a Rajapaksa regime change on Wednesday. For the USA led Western powers, there will be no necessity for an Arab Spring, no need to spawn revolution, no need to fuel protests, no need to create mayhem and anarchy on the streets if the president is opined by the Law Lords to be disqualified from contesting again.
For Ranil Wickremesinghe, if such an opinion is forwarded, there will be no need for him to fear the outcome of the election. It will enable him to see realised his twenty year dream of finally making it to the top; and will exorcise his many defeats to assume the seat of power by default. For the West and for Ranil, their aims and ambitions can be achieved by the simple flourish of legal quills, inked in the temple of democracy in a highly legal and civilized manner tomorrow morning.
But while America and Ranil may be forgiven for indulging in a spot of wishful thinking, the people of Lanka may not easily forgive curtailment of choice. For many Mahinda Rajapaksa is eminently qualified and is regarded as the man for all seasons, the man for all reasons, perfect in every way but for this Achilles' heel in the constitution which may prove fatal if so interpreted.
That then is the task and challenge that await the chosen bench of the Supreme Court whose jurisdiction the President has invoked, to settle a matter that might well seal his fate or eliminate all doubts and sniggering as to his eligibility to place his name on the nomination list for the third time. No doubt the judges will approach the question with the utmost objectivity, and exercise the strictest impartiality and embed their canvassed opinion solidly on compelling legal grounds. The nation expects no less.