By Mohamed Harees –

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 26^th 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. 

The Presidents of Sri Lanka  since 1978 have had their many shades of idiosyncrasies starting with JRJ. Then R. Premadasa and CBK had their own unique ones. MR also basically ran the country with an iron fist  as a dictator and tyrant while feathering his own nest (nepotism) and reportedly corrupt.  He hid behind his oft quoted pseudo- role-the champion of the Sinhala Buddhist masses. Yes! He bent the provisions of the Constitution to suit his own ends, nut even he did not violate in such raw form Maithri did. In comparison to his predecessors, Maithri was a complete disaster and a disappointment to the electorate which elected him. Maithri started off clipping his own wings as promised and reducing his own term. But, the greed and many other ills usually infecting the incumbents in this office overtook his sanity. He focussed more on SLFP   than the country and thus become a political figure rather than an apolitical figure as expected. Three years down the line, he became a totally different personality to what he projected in January 2015- cutting a sorry figure being corrupt, thoroughly inefficient and blaming others for his deficiencies. He also showed his cunning and devious side on October 26^th 2018 by aligning with the same man whom fell out with in 2015. Later he said that they were mere gimmicks. 

Today, Sri Lanka thus has a Head of State, who is being viewed by the country at large as an outcast, a mentally disabled, a liar, a comedian as well as a political cheat, lying shamelessly through the teeth. Through his irresponsible actions, he has dragged Sri Lanka into an irretrievable situation, towards a political and economic cliff while making the country a laughing stock in the eyes of the international community.  The irony is that  such a ‘crackpot’ can continue to act with total impunity and insanity , without any worry of legal proceedings to be taken against him for all his follies which have adversely affected the country, in the light of the cover of immunity legally afforded to him.  This is absurd to say the least. 

Immunity as referred above may be suitable to the holder of office of Presidency in a country which totally abides by the Rule of law and the ambit of the limitations. But, in the light of the self-centered manner in, and impunity with , which the incumbents have been discharging their powers in office in SL, this immunity has been found to be self-defeating and negates the very purpose for which such immunity is granted. Crimes and civil offences included. All Presidents failed to be apolitical as should be the case. Some Presidents have serious charges of corruption and in some instances blood in hands too. We do not have the quality of Heads of State like in Austria for example. In Austria, the President has much of power on paper, but, apparently, by convention, Austrian Presidents stay above politics and serve national interests. In the SL context, we have/had the likes of arrogant JRJs, dictatorial/corrupt MRs and crackpots like Maithris; all poster boys for narcissism and political insanity in their own ways.    

Eric M. Freedman in an article in  ‘The Law as King and King as Law( Maurice A.Deane School of Law at Hofstra University) concluded in the US context. ‘The argument in favour of immunity is inconsistent with the history, structure, and underlying philosophy of our government, at odds with precedent, and unjustified by practical considerations. To the extent that the belief is not a legal one, achieving political adulthood requires “We the People” to accept the responsibility of discarding it’. This is equally true in SL context too. 

Rule of Law is one among the basic Constitution principle which is interpreted to mean equal subject to all people before the law of a particular country. The idea of Rule of law at the beginning came as the mechanism to control the king who were regarded to be above the law within the notion that “King can do no wrong ” in latin maxim it goes by the name of “  Rex non potest peccare” which it meant that King is not subjected to the law of the land but this notion was later resolved to consider King also should be subject to the laws of God and laws of the nation. So the immunity that the President is entitled in the Constitution defeats the true meaning of the Rule of law, because the President acts above the law of the land and it makes this principle of Rule of law only to exist on paper and theory but not in practical way , although some jurists argue that there are certain equality  before the law that does not mean that power of the private citizen should be the same as power of public officials such as President. 

As Micaela F Rulli (scholarship.law.duke.edu) says, ‘It is inconsistent to give a different solution to the immunity of state officials depending on the nature of the court, and it is this incongruity that brings us back to he question of attribution as the pivotal one around which the issue of functional immunity is usually solved. If we abandon the idea that functional immunity is a substantive obstacle to the exercise of jurisdiction, then why should it be upheld before a civil court? Moreover, if international crimes may not be covered y functional immunity rules, why could the same acts fall under the reach of functional immunity in civil proceedings?’ Thus, if it is one of the fundamental principles of the rule of law, that everyone is equally subject to the law, this cannot be altered by whim or caprice, or even by legislative enactment, for any such action would itself violate the rule of law, and would therefore be in violation of a founding principle of the constitution. Presidential Immunity appears to be grossly abused in SL.  

The conclusion therefore is abundantly clear: The Executive President too should ideally be subject to precisely the same law as every other citizen of the country. Maithri or MR in this sense should be criminally answerable for all the offences committed by them during the course of their administration in fairness to the people of this country who are asked to abide by the rule of law. If the Constitution is a barrier to doing so, then it is nothing but fair that the Constitution should be amended accordingly to ensure no one can escape the long arm  of the law  due to the position  they hold. In this regard, as it was seen earlier,  the higher courts of the lands have attempted to so interpret the constitution  and the law towards narrowing down the Presidential immunity cover, which has been a positive development.