By Elmore Perera –

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 I was made aware on Tuesday that the guards had been withdrawn.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

(c)           Judicial power through Parliament to the Courts

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.”

Sharvananda J. opined, inter alia, that “The matters referred to the Full Bench involve important questions which concern the jurisdiction, dignity and the independence of the Supreme Court and of the Court of Appeal of the Republic of Sri Lanka….  It is therefore in a spirit of detached objective inquiry which is a distinguishing feature of judicial process, that we need to find an answer to the questions that are raised. It is essential to deal with the  problems objectively and impersonally ….. In dealing with problems of Constitutional importance and significance it is essential that we should proceed to discharge our duty without fear or favour, affection or ill-will and with the full consciousness that it is our solemn duty and obligation to uphold the Constitution of the Democratic Socialist Republic of Sri Lanka (1978) ……Rule of Law is the foundation of the Constitution,  and independence of the Judiciary and fundamental human rights are basic and essential features of the Constitution…… There can be no free society without law, administered through an independent judiciary ….. The supremacy of the Constitution is protected by the authority of an independent judiciary to act as the interpreter of the Constitution.,….. It was contended by the Deputy Solicitor General that this Court is precluded from directly or indirectly calling in question or making a  determination on any matter relating to the performance of the official acts of the President. He supported this objection by reference to Article 35 of the Constitution. I cannot subscribe to this wide proposition. Actions of the Executive are not above the law and can certainly be questioned in a Court of Law. Rule of Law will be found wanting in its completeness if the Deputy Solicitor General’s contention in its wide dimension is to be accepted. Such an argument cuts across the ideals of the Constitution as reflected in its preamble. An  intention to make acts of the President non-justiciable cannot be attributed to the makers of the Constitution.”

Neville Samarakoon CJ, Sharvananda J, Wanasundera J, Wimalaratne J, Ratwatte J, Soza J and Abdul Cader J held, with Ranasinghe J and Rodrigo J dissenting, that “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 that is a far cry from saying that the President’s acts cannot be  examined by a Court of Law. 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 will not be sufficient to discharge that burden.”

The comprehensive and unambiguous interpretation of the extent of Immunity granted to the President by Article 35 has thereafter never been considered by a bench of nine or more Judges of the Supreme Court and therefore continues to be the only lawful and valid interpretation of the provisions of Article 35. Clearly therefore,  all judgments delivered thereafter by Supreme Court Benches of 3, 5, or even 7 Judges purporting to confer blanket immunity on the  President based the erroneous/ mythical presumption that “the process of election ensures in the holder of the office based on the erroneous/mythical presumption that  “the process of  election ensures in the holder of the office correct conduct and full  sense of responsibility for discharging properly the functions entrusted to him”  have all been made “per incuriam” and are therefore void, ab initio. The limited immunity conferred on the President by Article 35 shall therefore, clearly not apply to anything done or omitted to be done by him in his official capacity, provided only that such proceedings shall be instituted against the party invoking the act of the President in his support and the Attorney General, and not against the President.

*Elmore Perera, Attorney-at-Law, Founder, Citizen’s Movement for Good Governance,Past President, Organisation of Professional Associations.