Executive Presidency- Absurdity Of The Immunity Cover!
Lukman Harees
The concept of presidential immunity became very much entrenched in the scope and structure of the present Constitution. 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’. The 1978 Constitution essentially took away much powers of the Parliament and gave the President excessive power, presumably to balance representation with governability.
US Judge Brett M. Kavanaugh, once wrote about Presidential Immunity, in a review article in the Minnesota Law Review Magazine titled, ‘Separation of Powers During the Forty-Fourth Presidency and Beyond’; ‘ I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be “one of us” who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office’.
In the SL Context, 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’.
The provisions of Article 35(2), however, explicitly limits immunity to the duration of tenure, as it suspends the running of time during a person’s tenure in office as President for the purpose of determining whether an action against that person is out of time or subject to prescription. Further, the Constitution provides three specified instances in which the presidential immunity would not, during the Presidency, apply. First, where the President under Article 44(2) of the Constitution ‘…..assigns to himself any subject or function not assigned to any Minister…..’ proceedings may be instituted against the President, in that capacity regarding matters arising out of that Ministry. Second, Parliament has a power to move a Resolution alleging that the President is ‘permanently incapable of discharging the functions of his office by reason of physical or mental infirmity or that the President has been guilty of’ one of the offences enumerated in five sub-paragraphs of Article 38(2)(a). Third, the President has no immunity from proceedings where his own election as President is being challenged or any matters pertaining to that election has given rise to any other legal proceedings, including any appeals that may result.
Prof. S. Sarath Mathilal de Silva- Attorney-at-Law in an article in CDN on ‘Presidential immunity: Scope and application’ (May 2018) commented;’ Immunity does not render acts committed, obligations assumed, duties breached, privileges and powers misused in law, a nullity; rather it merely shields makes the one with immunity from legal proceedings during the currency of that immunity, thereby ‘disabling’ others from commencing legal proceedings against him/her. However, if ever that shield is lost and the person loses that immunity, the person becomes liable to legal proceedings for any and all liabilities incurred during the period in which he had the protection of immunity.
He quoted Justice Sharvananda (as he was then) in Visvalingam v Liyanage, as dismissing the preliminary objection raised by the State, his Lordship observed:…..an intention to make acts of the President non-justiciable cannot be attributed to the makers of the Constitution. Article 35 of the Constitution provides only for the personal immunity of the President during his tenure of office from proceedings in any Court. The President cannot be summoned to Court to justify his action. But this is a far cry from saying that the President’s acts cannot be examined by a Court of Law. This was an important principle in relation to the scope of the doctrine of presidential immunity. The Court appeared to draw a crucial distinction between the person of the President –who is necessarily granted immunity from suit – and the acts of the President – which necessarily remain subject to judicial review. Justice Sharvananda further opined: Though the President is immune from proceedings in Court a party who invokes the acts of the President in his support will have to bear the burden of demonstrating that such acts of the President are warranted by law; the seal of the President by itself will not be sufficient to discharge that burden.
Learned Professor in his article concluded, ‘It appears that both presidential immunity and other indemnity provisions within the law contribute significantly towards the culture of impunity in Sri Lanka. The provisions in the present Constitution and statutory law that form the basis for official immunity must be narrowly interpreted to reflect greater consistency with the rule of law. Yet such an approach is wholly contingent on the independence and integrity of the judiciary as well as the competence of individual judges.’ This is quite true as we noted from subsequent developments. It became apparent that the concentration of executive powers in one individual along with the immunities attached to the office had proved to be greatly inimical to the constitutional balance of powers, despite the limitations and the gradual repeal of the powers of the Presidency, with the enactment of the 19th Amendment to the Constitution.
In the context of controversial developments wholly authored and instigated by the present incumbent Maithri since 26th October 2018- appointment of MR (who himself brought disrepute to this high office during his tenure of office) as PM, proroguing the Parliament as well dissolving it and calling for fresh elections, speaks volumes of his high-handedness, impunity and many other acts and statements unbecoming of this post. These contentious issues are presently before the higher courts of law for adjudication as to whether they violated the constitution. Be it as it may, Maithri would have been definitely brought before courts , if he did not enjoy the immunity of his office and makes or does many of the statements or acts he made or did in recent times. There is also a writ of mandamus to push the Police to ask the courts to refer MS to mental health review.
