Tuesday, October 23, 2012

The Myth of Blanket Immunity Of The President

By Elmore Perera -October 23, 2012

Elmore Perera

Article 3 of the much maligned 1978 Constitution unambiguously sets out that “In the Republic of Sri Lanka Sovereignty is in the People and is inalienable. Sovereignty includes the powers of Government,fundamental rights and the franchise”. Article 4 clearly defines how the Sovereign People shall exercise and “enjoy” their inalienable Sovereignty through its creatures – the Legislature, the Executive and the Judiciary.

Vested with the sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, the Supreme Court headed by the President’s hand-picked Chief Justice Hon. Neville Samarakoon Q.C., withstood covert and even overt attempts (such as stoning of Judge’s bungalows and rewarding those found guilty of violating fundamental rights) by the Executive to intimidate the Judiciary into submission. A despicable attempt to subvert the Independence of the Judiciary was described by the Chief Justice in these words.

“Here is a classic example of the uncertainties of litigation and the vicissitudes of human affairs. The annals of the Supreme Court do not record such a unique event and I venture to hope, there never will be such an event in the years to come. It behoves me therefore to set out in detail the events that occurred in their chronological order …… On Monday the 12th (September 1983) I was informed that the Courts of the Supreme Court and the Court of Appeal and the Chambers of all Judges had been locked and barred and armed police guards had been placed on the premises to prevent access to them. The Judges had been effectively locked out. I therefore cautioned some of my bother Judges who had made ready to attend Chambers that day not to do so. I referred to this fact in my conversation with the Minister of Justice on the morning of Monday the 12th and he, while deprecating it, assured me that he had not given instructions to the police to take such action. I was made aware on Tuesday that the guards had been withdrawn. This matter was referred to in the course of the argument (in SC Application No. 47/83 (Visuvalingam v Liyanage) and the Deputy Solicitor General informed the Court that it was the act of a blundering enthusiastic bureaucrat. He apologized on behalf of the official and unofficial Bar. On the last day of hearing the Deputy Solicitor General withdrew the apology and substituted instead an expression of regret. The identity of the blundering bureaucrat was not disclosed to us. However his object was clear – that was to prevent the Judges from asserting their rights ……On the15th September all Judges of the Court of Appeal and Supreme Court received fresh letters of appointment, commencing 15th September ….. Counsel for the Petitioners vehemently objected to proceedings de novo and contended that proceedings must continue from where it stopped on the 9^th September as the Judges had not ceased to hold office. I considered this a matter of the greatest importance and therefore referred all points in dispute to this Full Bench of nine Judges. The following issues were raised for decision…… ‘Is the President’s act of making a fresh appointment of the Judges an executive act not questionable in a Court of Law?’….. The Deputy Solicitor General contended that the oaths taken by the Judges before their fellow Judges are not legally binding or valid even though Judges of the Court of Appeal and Supreme Court are ex-officio JPs….. He added that the requirement to take the oath before the President is mandatory. His reason for stating this needs to be quoted verbatim: ‘The reason for this is not far to seek. The Head of State as repository of certain aspects of the People’s Sovereignty has a constitutional obligation to obtain from the Judges their allegiance. The personal allegiance which the Judges owed to the sovereign in the days of the Monarchy is continued to the present day where the allegiance is owed to the Head of the State as representing the State. The Head of the State is entitled to ensure that the allegiance is manifested openly and in his presence?’ This is a startling proposition. Sovereignty of the People under the 1978 Constitution is one and indivisible. It remains with the People. It is only the exercise of certain powers of the Sovereign that are delegated under Article 4 as follows:-

(a) Legislative power to Parliament

(b) Executive power to the President

Fundamental Rights (Article 4(d)) and Franchise (Article 4(e)) remain with the People and the Supreme Court has been constituted the guardian of such rights. I do not agree with the Deputy Solicitor General that the President has inherited the mantle of a Monarch and that allegiance is owed to him….. There is no doubt that Judges had been denied access to the Courts and Chambers by a show of force. There is also no gainsaying that this Act had polluted the hallowed portals of these Courts and that stain can never be erased.”