May 24

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.

May 16

We Sri Lankans are very happy when anyone praises us.  However, when someone criticises us, we usually react by abusing the critic.  We do not look at ourselves to see whether there might be some truth in such criticism but rush to attribute unfriendly motives to the critic.  For example, we recently learnt that a US Athink tank had carried out an extensive study, from published material in 146 countries, of twelve aspects pertaining to what are principally issues of governance and human rights.  Based on this study, Sri Lanka has been identified by this organisation as belonging to a group of twenty-six Afailed states.

Some commentators have questioned the bone fides of the think tank instead of analysing our ranking in respect of the specified criteria, examining how valid they are, and deciding on the appropriate steps to be taken to rectify whatever is found to be wanting.  Whilst we may question this organisation’s motives and competence, the inescapable reality is that important foreign institutions are likely to be guided in their assessments of Sri Lanka’s standing by the position our country occupies in the ranking of Afailed states.  Such assessments could have very adverse repercussions for our international relations and trade, foreign investment, tourism etc.

CIMOGG is certain that the primary reason why states fail is the progressive erosion of the Rule of Law, compounded by the exercise of arbitrary power by those in positions of authority.  This erosion assumes frightening dimensions when the powers that be start breaking ordinary laws and later begin to breach, abuse or ignore the Constitution itself.  Once the Constitution is treated as a mere piece of paper, the downward slide towards becoming a failed state will accelerate so rapidly that there will be no way to halt our descent into inevitable anarchy.

We, at CIMOGG, fear that Sri Lanka has begun to enter the last phase of the dismantling of the Rule of Law, with increasingly blatant violations of the Constitution, and the inability of the government to maintain law and order or apprehend armed persons who resort to extra-judicial killings, bypassing judicial processes.

We have to remind you that, when you assumed office, you solemnly affirmed that you would uphold and protect the Constitution.  Whereas there is no bar to your endeavouring to have the Constitution changed to suit your requirements, it must necessarily be done in conformity with the relevant provisions contained in the Constitution.  The powers conferred on you by the Constitution do not permit you to do otherwise or to violate it with impunity, claiming blanket immunity.  If persons at the apex of power renege on their word of honour, all oaths and affirmations will lose their sanctity.  Would not any governments or parties with whom we attempt to enter into written treaties or agreements of a commercial, political or military nature become very wary of accepting our assurances that we would scrupulously honour the terms and conditions of such treaties and agreements?  How would continued our violations of the Constitution be regarded by the Co-Chairs, India and the UN with regard to the North-East problem?

In the light of what we have said above, we earnestly request you, on a most urgent basis, to appoint forthwith to the Constitutional Council (CC) the six persons who have been identified by you, the Prime Minister, the Speaker, the Leader of the Opposition and the Aminor opposition parties in Parliament.  These six persons, together with the three Aex officio members, could then proceed to perform their constitutional function of recommending persons to be appointed to the seven independent Commissions referred to in Clause 41B of the 17th Amendment.  There is no need whatever to hold up the appointments of the said six members pending any agreement among the JVP, JHU and the TNA about the tenth member.  After all, it would not be first time the CC has functioned with less than its full complement of ten members.  Moreover, as has been pointed out repeatedly in the media, the quorum for meetings of the CC is only six members.

If you particularly wish to help fill the tenth place in the CC, CIMOGG calls upon you to request the Speaker to hold a secret ballot of all minor parties who claim to belong to the Opposition to elect one from among the names submitted, including that of any distinguished person whom the Speaker might be willing to nominate as a compromise candidate.  But this exercise should not in any way delay the appointment of the six persons referred to above.

Failing all these, the issue of which party is entitled to nominate this member could be referred to the Supreme Court for an advisory opinion.

The purported resort to Athe doctrine of necessity to justify the appointment of your own personal choice of members to the independent commissions, without getting the recommendation of the CC is entirely self-serving.  There is no perceivable need whatever for the much-abused doctrine of necessity to be invoked, as is understood to have been proposed by some, when a constitutional remedy is available.

We wish to remind you that the objective of the 17th Amendment, which you yourself voted for whilst in Parliament, was to insulate the Public Service, the Police Service etc from politicisation.  Therefore, it is completely unacceptable that you should act in total contravention of the primary purpose of the 17th Amendment when a constitutionally correct alternative is there before us.

The Aappointments made by you recently to the Public Service Commissions and the National Police Commission are null and void ab initio and should be rescinded by you with dignity and without delay.  The more rapidly this is effected, the less the damage that will be done on all counts.

In conclusion, we wish to state with the greatest possible emphasis that tinkering with and flouting laws and the Constitution is not acceptable democratic practice and is bound to bring the State of Sri Lanka and its peoples to ridicule in the eyes of the law-abiding nations of the world.  If you wish to be remembered in the future as a great President, you have no choice but to respect the Constitution which has conferred so may powers and privileges on you, and act accordingly.  Your choice will decide in which direction the future of this country will lie.