Ordinary citizens are confused by the debates which are going on in various fora regarding Presidential immunity and want to know what the word Ablanket immunity implies in this context. The following brief non-legal explanation, based on common sense, is offered by the Citizens’ Movement for Good Governance (CIMOGG) with a view to helping these citizens to come to their own conclusions.
The people of any country are sovereign. They are the fount of legislative, executive and judicial powers. For practical reasons, they generally delegate their legislative powers to representatives elected by procedures defined in whatever is the current Constitution. We call such representatives Members of Parliament. In some countries, as in Sri Lanka, they also elect an Executive President to exercise the executive powers of the people. Moreover, 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.
When it becomes essential, the people expect their lawmakers to amend the Constitution or enact a new one in order to help protect the people’s hard-earned rights and foster their socio-economic progress. It is for this reason that Constitutions spell out in much detail how the sovereign powers of the people are to be exercised. No citizen, unless he is a lunatic, would 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. On the other hand, where there is an Executive President, he cannot be expected to spend his time defending his day-to-day decisions in the courts of law. This is why our Constitution provides for personal immunity against legal action during the President’s tenure of office and, therefore, the Attorney-General is required to represent him in the courts. On the grounds of plain common sense, the immunity given to the President must be seen to be limited to this aspect alone and not to confer on him the right to violate the Constitution at will. If one were to argue that it was the intention of the legislature, on behalf of the people, to confer blanket immunity on the President even to violate the Constitution, all that the lawmakers would have needed to do was to add explicit words to the effect, namely that the Executive President would have absolute protection against all actions of his, including violations of the Constitution. What we have to consider is whether any person, with even the most elementary knowledge of the law, would agree to the inclusion of such a constitutional provision, which would in effect confer on an individual elected by a part of the population the absolute powers which were exercised in the past only by kings, emperors and despotic tyrants against the interests of the people? One could safely state that no lawmaker would ever agree to such an explicit wording. That being so, is it not absurd and untenable for anyone, however distinguished in the law, to argue that the current wording of the Constitution provides such blanket immunity solely and entirely by implication? Where is the place for natural justice and common sense in this kind of blind interpretation of the written law?
As mentioned above, lawmakers have clearly seen the need to provide personal protection for the President against litigation but this does not mean that such a provision automatically gives legitimacy to any of his unconstitutional or illegal acts of commission or omission. If one were to persist in arguing that the immunity given to the President allows him to do anything he wishes without any restraint, what need would there be for a Constitution? The Constitution could state that, once an Executive President is elected, he is vested absolutely with the sovereign powers of the people and that the Constitution subsequently would no longer subsist and would be of no value whatever in judicial proceedings; everything that he does, right or wrong, would be upheld as legal and legitimate by the Courts. For example, if the President were to have the Prime Minister, the Speaker, the Chief Justice, the Leaders of Opposition parties or the Service Chiefs, or all of them, killed by his security officers, in order, say, to help him go on beyond his two terms of office, there would be nothing that anyone could do about it. This kind of interpretation of the Constitution defies all common sense and makes an ass of the law.
In view of all these considerations, CIMOGG holds that the only valid position that a thinking person can take up about Presidential immunity is that it 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 him to put things right.