By Nagananda Kodituwakku – 

Nagananda Kodituwakku

There are very serious allegations being leveled against the government particularly by the international community about the apparent lawlessness in the country. Some are of a very serious nature including that there is no Rule of Law in Sri Lanka, the fundamental constitutional norm respected by all democracies.

In response to these allegations, which include the lack of Good Governance, Separation of Power and Accountability, the government repeatedly states that there is a system of accountability in place, no one is above the law and all government actions are driven by the Rule of Law. Are these statements, mostly made by  Minister G L Peiris well-founded or grossly baseless and lacking any credibility?

In this backdrop the statement made by the Chief Justice Mohan Pieris at the KDU International Research Symposium – 2013, in this regard is very important.  The Chief Justice expressed the government view on the Rule of Law, Good Governance and Separation of Power, stating that Good Governance and Rule of Law are nice words but are not found in any part of the world and therefore one need not worry too much about it. The Chief Justice further stated that there is no clear line that demarcates the Separation of powers between the Legislature, Executive and the Judiciary.

Those who are concerned with the plight of the Judiciary in this country today are quite aware that Chief Justice Dr Bandaranayake lost the ‘pleasure of the executive’ as  the Supreme Court declared a number of bills presented by the government which were challenged before the Supreme Court, as unconstitutional and that prompted the government to take ‘corrective measures’ to ensure her removal, the process of which was held unlawful by both the Supreme Court and the Court of Appeal.

Thereafter, despite serious allegations of dishonesty and gross misconduct, leveled against Mr Mohan Pieris in a fundamental rights petition filed before the Supreme Court, which were hitherto uncontested, the Executive President installed him at the office of the Chief Justice.

It is learned that name of another lawyer has been short listed to be appointed to the Supreme Court, despite strong objections taken by the Bar Association that people with little or no standing are being considered as judges in the Supreme Court by the Executive President, who enjoys total immunity over any of his actions.

Recently a very valid question was raised in Parliament on behalf of the people by the JVP about the colossal waste of public funds by the Executive President on his foreign trips. Several dozens of his men are regularly ferried on Sri Lankan airlines’ passenger aircrafts (A330) which are taken out of their regular fight schedules.

The government however, turned a blind eye to this query, citing immunity afforded to the Executive President under Article 35 of the Constitution and refused to provide any details of the public funds spent on these trips, which critics say is a gross abuse of peoples’ sovereignty by the Executive and the Legislature.

In this backdrop, as the government’s spin doctors continue to mislead the people and the international community with false statements about the Rule of Law, Good Governance and Accountability, it is important to understand the plight of the Judiciary in this country that has been effectively denied the right to exercise the peoples’ judicial power against alleged wrongful actions committed by the Executive President by entrenched provisions enacted in the Constitution, providing absolute immunity to the Executive President .

The following two judgments pronounced by the Supreme Court in the recent past that challenge the actions/conduct of the Executive President on two occasions: 1) Mr. Mohan Pieris’ appointment to the office of the Attorney General and 2)His appointment to the office of the Chief Justice, , are self-explanatory, as they provide a clear and unambiguous answer to the sorry state of affairs in the government’s administration of this country.

SC (FR) No. 297/2008 and 578/2008

The Fundamental Rights Applications No 297/2008 dealt with alleged acts or omissions committed by H.E. the President with regard to the non-appointment of the Constitutional Council.

The other case (578/08) dealt with the appointment of Mr. Mohan Pieris as Attorney General of Sri Lanka by the President, allegedly without following  due process and without obtaining the approval of the Constitutional Council.

Prior to the objections being filed by the Respondents, both applications were taken up for argument based on preliminary objections raised by the Attorney General, regarding the maintainability of both applications due to the Provisions contained in Article 35 of the Constitution, which provides total immunity to the Executive President against any thing done by him.

In the written submissions dated 18th September 2008 the Attorney General took up the objection that Petitioners cannot have and maintain these proceedings in view of the specific provisions contained in Article 35(1) of the Constitution, which confers immunity from suit on the President in respect of anything done or omitted to be done by him in his official or private capacity, which had been dealt with by the Court as follows in Mallikarachchi vs. Siva Pasupathi, Attorney General (1985 1 SLR 74 at 77);

“Article 35(1) confers on the President during his tenure of Office an absolute immunity in legal proceedings in regard to his official acts or omissions and also in respect of acts or omissions in his private capacity.

Therefore, the Court determined that Article 35 of the Constitution does not permit the Executive President to be cited as a Respondent in matters (concerning his conduct or actions) before the court of law.

SC (FR) Application No. 23/2013

The vacancy that arose in the office of the Chief Justice of Sri Lanka consequent to the removal of the Chief Justice Dr Shirani Bandaranayake, was filled by a warrant issued by the President of Sri Lanka under his hand on 15th January 2013 in terms of Article 107(1) of the Constitution appointing Mr Mohan Pieris, the 6^th Respondent in the case as the Chief Justice.

Petitioners in this action made this application in the public interest with the objective of safeguarding the rights and interests of the general public of Sri Lanka and securing due respect, regard for, and adherence to, the Rule of Law and the Constitution, which is the Supreme Law of the land. And the Petitioners sought a declaration inter alia that any attempt by Mr Mohan Pieris to accept the   office of Chief Justice,  or to exercise the functions of the Chief Justice  (unless and until the incumbent Chief Justice Dr Shirani Bandaranayake retired or unless and until the Chief Justice Dr Bandaranayake is found guilty by a competent court,   established by law and a Resolution is subsequently passed by Parliament, calling upon the President to remove the Chief Justice), would amount to an infringement of the Fundamental Rights guaranteed to the Petitioners.

In this matter as well the Attorney General raised preliminary objections when this case came up for support for leave to proceed. The preliminary objection was based on Article 35(1) of the Constitution, which states 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.

Citing the ruling given in the Mallikarachchi v. Shiva Pasupathy, Attorney-General (1985) 1 SRI LR 74, where it had been held that having regard to Article 35 of the Constitution, an act or omission of the President is not justiciable in a Court of Law, the Supreme Court upheld the preliminary objections taken up by the Attorney General and the application filed by the Petitioners challenging the appointment of Mr Mohan Pieris to the Office of the Chief Justice was dismissed.