The President has no other option but to refer the impeachment matter to the Supreme Court according to the Constitution under Article 129 if passed by the Parliament
| The Sri Lankan Supreme Court has more power than the United States Supreme Court | |||
  (Lanka-e-News -23.Dec.2012, 11.50PM) The President must refer to the Supreme Court his doubt about the impeachment proceedings and the Constitutionality of the Parliamentary select Committee under the constitution.The U.S. Supreme Court has no consultative jurisdiction under the U.S. Constitution. Whereas the Sri Lankan constitution Article 129 specifically stated that the Supreme Court has Consultative jurisdiction. Even though the U.S. Constitution has not mandated the consultative jurisdiction the Supreme Court stated that “but courts cannot avoid their respon¬sibility merely because the issues have political implica¬tions” “And even assuming that the recognition power was the President’s alone, the Constitution did not commit to the Executive “the power to determine the constitutionality of a statute.” Instead, that category of question has for centuries been “emphatically the province and duty of the judicial department.” That duty may have political implications, Chief Justice Roberts conceded, but the judiciary nevertheless has a “responsibility” to adjudicate such conflicts when they arise”. He further stated “That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their respon-sibility merely “because the issues have political implica¬tions.” INS v. Chadha, 462 U. S. 919, 9 In this case, determining the constitutionality of §214(d) involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be invalidated…..” “No policy underlying the political question doctrine suggests that Congress or the Executive . . . can decide the constitu¬tionality of a statute; that is a decision for the courts.” ………” See: Zivotofsky v. Clinton 566 U. S. (2012) Therefore the U.S. Supreme court accepted to render decision on a case by case basis. Interestingly the makers of the Sri Lankan Constitution were aware of this concept. They drafted the constitution creating an article (129), granting the power to the Supreme Court to give opinion regarding any matter it appeared before the President. This concept is not a new one; there are many other constitutions around the world that the above concept has been inserted to their constitutions. Consultative jurisdiction in the Sri Lanka Constitution. ---------------------------------------------------------------------- 129. (1) 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 may be extended by the President, report to the President its opinion thereon. (2) Where the Speaker refers to the Supreme Court for inquiry and report all or any of the allegation or allegations, as the case may be, contained in any such resolution as is referred in Article 38 (2) (a), the Supreme Court shall in accordance with Article 38 (2) (d) inquire into such allegation or allegations and shall report its determination to the Speaker within two months of the date of reference. (3) Such opinion, determination and report shall be expressed after consideration by at least five Judges of the Supreme Court, of whom, unless he otherwise directs, the Chief Justice shall be one.
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