5 August, 2020

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The Executive President – Public Office Above The Law

By Nagananda Kodituwakku – 

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 6th 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.

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Latest comments

  • 5
    0

    NK@,
    congrats for this great article. You have articulated it clearly.

    “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”

    This are the tricks of govt of MR; tricks of Rajapakshes; they dont care what the educated and right thinking masses would feel. This is becoming very clear from his dead silence against the physical/mental harm made to the UNP MPs during their late fact finding missions to Hambantota. He, MR behaves so, so long majority gaping folks welcome whatever he ignores to this day, but I really dont think that one can fool the very same nation again and again.

    My great hope is a change of the current system (lawlessness, injustice, high crime friendly rather than civilized)towards good.

    • 3
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      The President of Sri Lanka is at war with the people of Sri Lanka. There is a war in the country between the people and the Jarapassa military dictatorship which is bent on DESTROYING ALL DEMOCRATIC INSTITUTIONS, that may put breaks on the Dictator and his family and their looting of the Sri Lanka people.

      Many thanks for this article!

  • 3
    0

    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.”

    Want to know more? Listen yo Anura Dissanayake’s Speech

    All Learn from JVP- JVP May Day Rally 2014

    https://www.youtube.com/watch?v=r0V7f1pSZ5k

    Published on May 2, 2014 JVP May Day Rally 2014 – Anura Dissanayake’s Speech

    • 4
      0

      My question is even if AKD, JVP PC candidates raised all these injustice, corruption, lawlessness related issues shortly before the elections were held, mostly, with all proof materials in their hands, none of these issues to be taken up so far. Some JVP pc candidates repeatedly questioned what happened to 90% loans taken from Chinese and other foreign banks since their calculations made very clear only 10% included all these sums spent on the gigantic development projects like Hambantota port, airport, colombo theatre, southern highway and other road constructions.. …..
      The very same indifference treatment of the govt – towards the attacks made to the UNP parliamentarians lately; not forgetting the muslim fellow citizens were attacked all abusive language by PSEUDO MONK -GHANASARA, nothing seem to have worked against him in terms of proper investigations. So, how can the general public make hopes about their own security today ?

  • 5
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    The Executive Presidency is the worst aspect of our constitution – MR promised to abolish it and even gave the promise in writing to the JVP but promptly forgot about it after becoming president.
    Is there any other country professing “democracy” with a similar power conferring section on the Head of State in the constitution – I think not.
    The blanket immunity from prosecution has created a dictater – who enforces his will aided by the military and police.

    Of course there is no Rule of Law – only a “Rule of Mahinda Rajapakse”.

    Mohan Peris who decides guilt of persons from his own “personal knowledge” is unique among heads of judiciaries,and a good subservient lapdog.

    • 3
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      This is all because country^s CJ Mohan Peiris is hypnotised by executive president. The days in which predecessors of him worked independently have now become the history of lanken justice to this day.

      If no change would be the case within next few months, arab spring like rise will be inevitable. Our past shows a clear picture of the nature of people.

  • 1
    0

    Dear Mr Nagananda Kotituwakku

    Your learned discourse in this article is very much the truth. However if it is your hope the Executive will correct course you are living in a fool’s paradise.

    The abuse and the corruption our motherland is subjected to has gone beyond the legal and the justiciable. Shirani Bandaranayaka was instrumental in handing over the hen house to MR the fox. The fox in turn handed it over to Mohan Peiris to keep it in trust for him.

    The bitter truth is that only People Power can now save the country from the inexorable path to ruin and destruction. The People must unite, particularly the Sinhala Buddhists must take the initiative, and with the co-operation of the other constituents of the electorate send back the Rajapaksa gang to oblivion at the next Presidential Elections. When this happens it will be exhilarating and heartwarming, to see the terrorized and blackmailed victims forced to bootlick (examples: G.L.Peiris, Rauf Hakeem, judges of the Supreme Court and other courts, policemen, civil servants, teachers, trade union leaders) liberated from their shameful bondage and start to live as normal respectable human beings subject only to the constraints of the Rule of Law. It will be fulfillment of one one’s duty to the motherland to restore her to her rightful destiny.

    People like you, Nagananda Kotituwakku, who belong to the Sinhala Buddhist constituent of the voting public, have a very heavy responsibility to make sure that this will happen at the next Presidential elections. Yesterday the Tamils paid, today Muslims and Christians are paying. Let not the Sinhala Buddhist majority put themselves in misery by their silence. It will happen to them too if you do not act. So take care NOW.

  • 0
    0

    There is a point in this comment which says that the SB constituency which belongs to a larger proportion of the voting constituency has to lead and take the initiative in taking responsibility to ensure the results at the next presidential elections.

    For that to happen there has to an election.
    There is a precedent in the 1980’s where the elections were not held, and there is no guarantee that that precedent will not be followed with the type of SC and CJ the country burdened with.
    The ‘misery’ will continue.

    Take care ‘NOW’.

    The beast has to be slowed.
    Waiting till the next round of presidential elections will only ensure continuing misery.
    Powerlessness is only reaffirmed by helplessness.
    That was the gist of Anura Dissanayake’s speech on May day 2014.

  • 0
    0

    We as Sri Lankan people seem to pinpoint all that is wrong, but it’s all in closed circles, how can the common man fight when there is no opposition? what can and should be done to rectify the situation?

    I think most living in the cities are aware of the corruption and lawlessness, but in truth, it affects only us. There is absolutely no requirement, how can this be addressed is the question

  • 0
    0

    even bandaranayke came to supreme court from bank door without having any experience to the position due to political appointed by unauthentic corrupted lady president.this lady to wrote many wrong judgments to secured regime.who give more terms to president?????????????was it this supreme court judge????????just top ensconce and let this lady out???when it comes to political animal who can trust monks or people or lady??????????all animals are same until they get power.yo u have two choice leave or dies or go out of this dirty hell.

  • 0
    0

    sriyani bandaranayake who gave more terms to current president does not understand basic law,so it was better remove from that position keeping this lady as chief justice was more liability than current president.do you thinks this lady was clean?this lady also came to place from back do due to family back ground.no matter who cme this is the game you like or not.

  • 2
    0

    This country has no “Rule of Law”. In other words, there is no law. So how come any office be above the law when there is no law? I agree with the writer that it was unfair as to oust Dr. Shirani B. However, she did not have the qualification to be CJ in the first place as mentioned by Laksiri. Be that as it may, I agree with the writer that the unceremonious ouster of the CJ is government impunity that shows the executive president is supreme when he is not. This is unconstitutional and we don’t need a nitwit professor like GLP who plagiarized his own doctoral thesis to explain this to us.

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