THE JUSTICIABILITY OF PRESIDENTIAL ACTS

ASANGA WELIKALA- 12/09/2018

In a week of high-stakes litigation in the two highest courts in the land, a key question in the public discussion over the continuing constitutional crisis in Sri Lanka has focused on whether the presidential act of dissolving Parliament on 9th November is justiciable. That is, whether this presidential decision – second only in significance to the question whether the President can dismiss a Prime Minister and appoint another at his sole discretion – can be judicially reviewed in the courts.

I have discussed the overarching constitutional framework for the dissolution of Parliament following the changes made by the Nineteenth Amendment elsewhere. However, more specifically at the heart of the current constitutional litigation is this question: what is the scope and nature of the legal immunity granted to the President under the Constitution when his actions are challenged? It is important to unpack the competing arguments in order for us to form a view about whether or not the Supreme Court can determine if the President has acted in violation of the Constitution, and if so, quash the presidential act of dissolution.

The defence of the President’s course of action can be summarised in the following terms:

1. The Supreme Court has no jurisdiction to entertain a legal challenge to the President’s act of dissolving Parliament, because any allegation that the President is acting in violation of the Constitution or abusing his powers in doing so, is not for the courts but for Parliament to deal with according to the procedure for the impeachment of the President (Article 38). That procedure has not been invoked by Parliament.
2. While, after the Nineteenth Amendment, the Supreme Court has jurisdiction to entertain fundamental rights applications in respect of presidential actions, this can only be invoked if the impugned act falls within the scope of ‘executive and administrative action’ as contemplated by Article 126 (Article 35). The dissolution of Parliament is not such an executive and administrative action, because it is a power exercised by the President as the Head of State under Articles 33(2)(c) and 70(1) read with Article 62(2). If the Supreme Court holds that the power of dissolution is an executive and administrative action so as to activate the court’s jurisdiction over fundamental rights under Article 126, then that would be a usurpation by the court of a presidential power over which the Constitution grants the President legal immunity from suit.
3. In any case, a dissolution of Parliament cannot be a violation of fundamental rights, because a dissolution leads to a general election in which the people exercise their franchise, and as such it is an enhancement of their fundamental rights.
4. The President’s power of dissolution is a ‘prerogative’ power, and prerogative powers are not subject to judicial review.
5. The President’s power to dissolve Parliament is a ‘political question’ and as such a category of political decision-making which it is inappropriate for courts to interfere in.

While points (1) and (2) are based on the interpretation of the text of the Constitution, (3) to (4) go much further in making propositions about more general matters in constitutional law and politics. Let us consider each in turn.

1. Is legislative impeachment rather than judicial review the proper constitutional procedure for addressing allegations of presidential misconduct?

Like many democratic semi-presidential systems, the Constitution contemplates both legal and political forms of accountability for the President. The President is politically accountable both to the people and to Parliament. Political accountability is ensured through a number of devices and procedures, with general principles and routine procedures governing day-to-day conduct, and more specific and consequential mechanisms to deal with serious abuses. These include his election by the people, the two-term limit, his responsibility to Parliament, his attendance in Parliament, the answerability of the Cabinet (of which he is the head) to Parliament, the explicit statement of his duties and responsibilities, the general principles of democracy and constitutionalism underpinning the Constitution (which envisage a functioning democracy including through the freedom of the media), through to the exceptional procedure informally known as ‘impeachment’ which can be invoked by Parliament for the removal of the President from office in cases of serious misconduct or incapacity.

The Constitution also contemplates the President’s legal accountability, subject to certain limits defined by the extent of legal immunity that the President is granted. The entire Constitution is based on the Rule of Law, and therefore there is the strong presumption that the President will generally act in good faith in compliance with the law and the Constitution (Visuvalingam v Liyanage (No.1)[1983] 1 SLR 203). However, for reasons of efficient government and in keeping with the norms of other presidential and semi-presidential systems, the Constitution also protects the President from legal proceedings while in office. This framework of presidential legal immunity is governed by Article 35, which establishes the general immunity subject to specific exceptions. As they relate to the present discussion, the following are the applicable rules:

1. The person holding the office of President is immune from civil or criminal proceedings for anything done or omitted to be done by him in either his official private capacity.
2. A declaration of war or peace by the President is covered by absolute immunity.
3. The President enjoys no immunity against a judicial enquiry by the Supreme Court as part of impeachment proceedings.
4. The President enjoys no immunity against legal proceedings challenging his election to office, or the validity of a referendum.
5. Legal immunity applies only so long as the person holds the office of President.
6. The immunity only shields the doer and not the act (Karunatilake v. Dayananda Dissanayake (No.1)[1991] 1 SLR 157). The courts can declare a presidential act unconstitutional, and while immunity shields the person of the President from any punitive consequences of such unconstitutional act, no other person may rely on the unconstitutional presidential act.
7. The immunity only extends to civil and criminal proceedings. While Article 35 prior to the Nineteenth Amendment covered all forms of legal proceedings, the Nineteenth Amendment restricted this to ‘civil and criminal proceedings’, and necessarily so, because it introduced a public law limitation on presidential immunity by subjecting anything done or omitted to be done by the President, to the fundamental rights jurisdiction of the Supreme Court. Accordingly, any presidential action can be challenged by any citizen under Article 126 if it violates or imminently violates a fundamental right, by filing action against the Attorney General.

From this it is clear that the Constitution subjects the President to legal accountability as well as to political accountability. There is therefore no substance in the argument that impeachment is the only way in which the President can be held accountable. The question is not either/or. Like in any other democratic constitution, both forms of executive accountability are envisaged by our Constitution and the two methods are complementary to each other.

2. Is the presidential act of dissolving Parliament within the scope of Article 126?

There is no sustainable distinction to be made between presidential acts that constitute ‘executive and administrative action’ within the scope of Article 126, and those that are beyond it as executive acts of the Head of State. Article 126 establishes the jurisdiction of the Supreme Court to determine applications concerning violations of fundamental rights. It was a significant innovation of the 1978 Constitution to enable individual petitions to be made to the highest court to vindicate the fundamental rights recognised by the Constitution, against actions of the government. There is nothing in Article 126 that makes a distinction between high acts of the Head of State such as the dissolution of Parliament, and subordinate administrative actions. To do so would have been to weaken the protection for fundamental rights offered by Article 126, and even to raise the President above the law. There is nothing anywhere in the Constitution to suggest that the framers intended the President to have the freedom to act in violation of constitutionally entrenched fundamental rights. And even if such a distinction was tenable prior to the Nineteenth Amendment, it is no longer possible to do so, because the Nineteenth Amendment specifically extended the reach of Article 126 to presidential acts (albeit maintainable against the Attorney General rather than the President himself). This was part and parcel of the whole raft of reforms made by the Nineteenth Amendment, the clear and unambiguous purpose of which – and the mandate of the President elected in January 2015 – was to cut back the powers of the executive presidency.

The assertion of the Supreme Court’s jurisdiction to hear and determine the pleading that the purported dissolution of Parliament on 9th November – prima facieagainst the provisions of the Constitution – violates citizens’ fundamental rights therefore is no usurpation of a presidential discretion. It is simply the courts carrying out their constitutional duty to uphold the Constitution and the Rule of Law to determine if the President has acted validly within his constitutional powers, and in doing so, whether or not any fundamental rights protected by the Constitution have been violated.

3. Is the dissolution of Parliament leading to a general election an enhancement rather than a violation of fundamental rights?

This is an unworthy argument. It is trite that the franchise is one of the most important of rights of the citizen in a democracy. It does not, however, follow that elections can be called in violation of established legal and constitutional procedures, at the whim of an individual called the President, for reasons that are manifestly mala fideand partisan. Appealing to the people in contravention of established procedures is populism, not constitutional democracy. As historical experience shows, populism leads to the destruction of democracy, constitutional rights, and possibly even the franchise itself, not to their enhancement.

It also begs this question. When the people voted in a Parliament in August 2015, they did so in the knowledge of the Nineteenth Amendment that it would be a Parliament elected for five years, which could only be dissolved in the first four and a half years of its term by a resolution passed by two-thirds majority. Even more widely known was the fact that the Nineteenth Amendment had curtailed presidential powers, including the power to dissolve Parliament at will. In August 2015, the people of Sri Lanka were approving and renewing the mandate in January 2015 for further constitutional reforms to democratise the state and to finish the unfinished business of abolishing the executive presidency. To uphold an unconstitutional and illegal presidential act to dissolve a Parliament that was vested with such an important mandate therefore is a rejection of the people’s will. A President that engages in such an unconscionable repudiation of his own mandate and that of his governing coalition cannot be defended by arguments based on the franchise.

4. Is the President’s power of dissolution a prerogative power immune to judicial review?

That the President of Sri Lanka enjoys (pre-constitutional, meta-constitutional, or extra-constitutional) prerogative powers is an argument without any foundation whatsoever. Stemming from a poor understanding of both constitutional history as well as the British constitutional concept of prerogative powers, this argument seems to be to the effect that the President continues to enjoy certain residual powers not expressly mentioned in the written constitution that are derived from the royal prerogatives of his British predecessors as Head of State.

The royal prerogative remains a source of governmental power and thus a source of constitutional rules in the United Kingdom. They are surviving relics of the ancient constitution, from pre-democratic times when the monarch took an active part in executive government. As the Supreme Court of the United Kingdom stated in R (Miller) v. Secretary of State for Exiting the European Union[2017] UKSC 5 at [47]:“The Royal prerogative encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation.”Or as Colin Munro defines it, “The royal prerogative may be defined as comprising those attributes belonging to the Crown which are derived from the common law, not statute, and which still survive.”

As remnants of the medieval constitution, they exist as long as Parliament allows them to exist. Like any other part of the common law, Parliament can by statute abolish or change the prerogative.A good example directly relevant to the present discussion is where the Queen’s prerogative to dissolve Parliament on the advice of the Prime Minister was abolished and a new statutory framework for this purpose put in place by the Fixed-term Parliaments Act 2011. A prerogative power can be reduced or abolished, but no new prerogatives can be created and they cannot be extended. The Crown cannot claim a new prerogative has come into existence, or that an existing one has been enlarged; it is “…three hundred and fifty years and a civil war too late” for that, as Lord Diplock put it in BBC v. Johns [1964] All ER 923 at 941. Of course, Parliament can and does create new powers for the executive (the Crown) all the time. But these are statutory, not prerogative, powers.

Prerogative powers could no doubt be relevant where the written constitution was silent or unclear in the period between 1948 and 1972 when Ceylon was a Dominion (videCeylon (Constitution) Order in Council 1946: s.4(2)). However, when Sri Lanka became a republic in 1972, the constitutional links through which the prerogatives of the British Crown applied in Ceylon were completely severed. While the 1972 Constitution emulated the Westminster model, its terms were self-contained within the text of the new written constitution. The same is true for its successor, the semi-presidential 1978 Constitution. Thus, the royal prerogative as a source of executive power did not survive the constitutional revolution of 1972 and the formation of the republic. To the extent that these two republican constitutions contain provisions that resemble the Soulbury Constitution, they are mere replicas and not continuations of a constitutional source of power.

Moreover, the royal prerogative is unique to the peculiarities of British constitutional history and its uncodified constitution. It may apply in other Commonwealth constitutional monarchies through specific retention, but it ceases to exist when a written constitution is made for a republic. It does not survive other than as an inspiration for an extra-legal assertion of latent authoritarian power by republican executives. There is therefore no concept of prerogative power recognised by the 1978 Constitution. All the powers that are granted to the President are those enumerated in the Constitution and what might be inferred from them through the interpretation of the text. In this context, to assert that the President enjoys prerogatives unmentioned in and unregulated by the written Constitution is to question the very character of the Sri Lankan state as an independent and democratic republic.

5. Does the ‘political questions doctrine’ apply to the dissolution of Parliament under the Sri Lankan Constitution?

The ‘political questions doctrine’ is a judicially developed doctrine in American constitutional law (although there are appearances of it in many other common law countries as well as in the jurisprudence of the Court of Justice of the European Union and of the European Court of Human Rights through the ‘margin of appreciation’) that affords judicial deference to the political branches in matters that are inherently political rather than legal. The rationale of the doctrine derives from notions of the separation of powers, whereby the courts are or ought to be concerned exclusively with legal questions. In countries where courts have the jurisdiction to interpret a written constitution and police the legality of the actions of the political branches, the purpose of the doctrine is to act as a safeguard against judicial overreach, although not as a self-denying ordinance to denude the courts of their essential constitutional role in upholding the constitution and the Rule of Law against especially executive abuses.

A question of judicial overreach is not the situation we are confronted with in Sri Lanka. The role of both political branches in relation to the dissolution of Parliament is stated in the Constitution. Even though the provisions are clear, President and Parliament have reached a seemingly insurmountable deadlock. An unprecedented constitutional crisis has ensued, with major implications for the political stability and economic well-being of the country. Under the Constitution, the Supreme Court is the final arbiter and interpreter of its meaning. It would be difficult to imagine a worse case in which to apply the political questions doctrine and take the courts out of the equation than the current Sri Lankan constitutional crisis. The crisis insofar as the legal disputes are concerned can only be resolved by the courts. Their task is simply to determine with independence, impartiality, clarity, and finality, the disputed meaning of the relevant constitutional provisions. In such a situation, there is no scope whatsoever for the political questions doctrine to apply.

Conclusion    

For all the reasons canvassed above, it is clear that presidential acts under the Sri Lankan constitution are justiciable, and that the President’s purported act of unilaterally dissolving Parliament on 9th November 2018 is subject to the fundamental rights jurisdiction of the Supreme Court. There have been no plausible arguments presented that serve to oust the jurisdiction of the Court, or other constitutional or policy considerations that preclude the Court from hearing and determining the legality of this disputed action with finality.