Lakshman Indranath Keerthisinghe Attorney-at-Law
The question has often been asked by ordinary citizens: ‘If all persons are equal before the law, why should the Executive President enjoy immunity from legal proceedings under the Constitution?’ An attempt is made in this article to supply an answer to that question without traversing complex legal arguments,
The Constitution of Sri Lanka 1978) which is the supreme law of Sri Lanka, provides that the people are sovereign. From the people emanate legislative, executive and judicial powers. The legislative power of the people is delegated to the elected representatives in Parliament, who are elected according to the procedures set out in the Constitution and other laws. The judicial power is vested in the judiciary as the Constitution contains procedures for the creation of courts and the appointment of judges to interpret the Constitution and the other laws passed in accordance with the provisions of the Constitution. In some countries, as in Sri Lanka, the people elect an Executive President to exercise the executive powers of the people. A right thinking citizen would not agree to the people’s representatives framing a Constitution or passing legislation that would allow an individual or a group of individuals to exercise unlimited power over their lives, freedom and property. It is also true that an Executive President cannot be expected to spend his time in courts of law defending his day to day decisions, which he is required to take in the discharge of his functions. This is the reason that prompted the makers of our Constitution to make provisions for personal immunity in the case of legal action being taken against the Executive President during the tenure of office of such President and, hence, the Attorney-General is required to represent the President in the courts.
Article 35(1) of the Constitution provides that: ‘While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity’. It should be noted that Article 35(3) as amended by the Fourteenth Amendment states that: ‘The immunity conferred by paragraph 1 of this Article shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article 130(a) relating to the election of the President or the validity of a referendum or to proceedings in the Court of Appeal under Article 144 or in the Supreme Court, relating to the election of a Member of Parliament. Provided that any such proceedings in relation to the exercise of any power to any such subject or function shall be instituted against the Attorney General’.
Thus when the President assigns to himself any cabinet or non cabinet ministerial subject or function, the immunity is not available in relation to the exercise of any power pertaining to any such subject or function. The immunity is not available against any inquiry or report by the Supreme Court of any or all allegations made by any Member of Parliament contained in a resolution referred to the Supreme Court by the Speaker alleging that the President is permanently incapable of discharging the functions of his office by reason of physical or mental infirmity or when the President is guilty of intentional violation of the Constitution, treason, bribery, misconduct or corruption involving the abuse of power of his office or any offence under any law involving moral turpitude.
The Constitution further provides that the notice of such a resolution shall be signed by not less than two thirds of the whole number of Members of Parliament in which event the Speaker is bound to refer such matter to the Supreme Court but if such resolution is signed by not less than one half of the whole number of Members of Parliament, the Speaker must be satisfied that the allegation/allegations merit consideration by the Supreme Court. Further, immunity is not available in proceedings in the Supreme Court under Article 130(a) relating to the election of the President or the validity of a referendum or to proceedings in the Court of Appeal under Article 144 or in the Supreme Court relating to the election of a Member of Parliament. Thus it is seen that the immunity granted to the President is not absolute.
Sharvananda CJ in Mallikarachchi vs. Siva Pasupathy explained the immunity granted to the President as follows: ‘…the President is not above the law. He is a person elected by the people and holds office for a term of six years. The process of election ensures in the holder of the office correct conduct and full sense of responsibility for discharging properly the functions assigned to him. It is, therefore, necessary that special immunity must be conferred on the person holding such high executive office from being subject to legal process or legal action and being harassed by frivolous actions. If such immunity is not conferred not only the prestige, dignity and status of the high office would be adversely affected but the smooth and efficient working of the Government of which he is the head would be impeded. That is the rationale for the immunity cover afforded to the President’s actions both official and private’.
In Victor Ivan vs. Hon. Sarath N. Silva The Supreme Court held that ‘…the Constitution itself gives the President immunity under Article 35(1) thereof and therefore she cannot be brought before court to answer for her actions.’ In Karunathilake vs. Dayananda Dissanayake, Commissioner of Elections, Mark Fernando J held that ‘Article 35 only prohibits the institution or continuation of legal proceedings against the President while in office. It imposes no bar whatsoever on proceedings against him when he is no longer in office’. The punishment meted out to the former President Chandrika Bandaranaike Kumaratunga by the Supreme Court for an act done while in office indicates the said position. Thus it is evident that Presidential immunity extends only to him personally during his term of office and that the courts have the power and the duty to examine any and all actions of his, when called upon to do so, and declare them either to be constitutional and in conformity with the ordinary laws, or declare them to be otherwise. If any of his acts are declared to be unconstitutional or illegal, it is incumbent upon the President while in office to correct such errors. In Bandula vs. Almeida the Supreme Court set aside an order by the then President as the Minister in charge of Urban Development made under Section 2 of the Urban Development Projects (Special Provisions) Act No.2 of 1980 acquiring property for an alleged project when no such project existed.
Thus it is seen that the notion that the Pres