26 May, 2019

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The Myth of Blanket Immunity Of The President

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 I was made aware on Tuesday that the guards had been withdrawn.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 9th 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.

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Latest comments

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    I believe Sarath N Silva should be disenrolled and Elmo reenrolled.

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      People would have been truly outraged about these attacks if they thought the judiciary was a fair and honest one. What is the point of sticking your neck out for an institution that is as corrupt at the executive itself. Pastor Martin Niemoller’s words are ring truer and louder each day.

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      Keep up the great work Mr. Elmo Perera – a true intellect and PATRIOT par excellence, who is not afraid to speak truth to power!

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    Good men in society like my friend, the many talented Elmore Perera
    (former Survey-General, Lawyer and Accountant) do the country a favour by educating us in the complex understanding and interpretation of the law. This religious and decent man has suffered for this enormously.
    His name was taken out of the roll for merely exercising his rights by a CJ who brought his high office to disrepute and notoriety. Elmore, the man who gave us CIMOG, continues to fight in that role the old Athenian founder of the Republican system of governance foresaw.
    That is, as the Republic system is pracised down the ages responsible citizens will come forward, make sacrifices to perfect that great system which the modern Philosopher Francis Fukuyama described as”the End of History” meaning, as Fukuyama explained later, the last form of governance known to man. Who knows there can be a further improvement/s.

    Senguttuvan

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    It is the good fortune of our society we have conscientious men like Elmore Perera (former Civil Servant, Lawyer, Accountant) in our midst educating the ordinary citizen in the complexities and interpretation of the law and citizens’ rights. He has sometimes paid a heavy price for this including removal from the Roll of lawyers by a revengeful high judicial official only because Mr Perera insisted on his rights to be on his feet while addressing the Bench. It is up to the Law Society, the Judicial Services Commission and such other to honourably restore him. This practicing and pious Christian is unlikely to plead for restoration.

    I believe he was also the founder of the public activist body CIMOG – now ably lead by Dr. A. C. Visuavalingam. When the Athenian philosopher Plato came out with his thoughts of the Republican form of governance over 2,000 years ago, he envisioned, as the system proceeded down the ages, responsible citizens will help to add and perfect it to suit their own environments. It is this system most of the world has popularly adopted largely beginning the 18th century – which the modern American philosopher Dr. Francis Fukuyama called “the End of History” in his celebrated book.

    Senguttuvan

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      I agree. Elmore also helped many young men incarcerated without charge at Boosa in the early days of the northern insurgency. Elmore Perera, Joe Perera, Eardley Perera, Lal Perera were/are good attorneys with same last name, in an era gone by. These days Lawyer fees include an appropriate bribe for the judge hearing the case. The rot has spread deep into the system. The chambers at Hultsdorf used to be a hive of intellectual men. Now… oh well.

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    All these Norms or Laws are man made and not God given. It is possible to amend, omit, adjust and restate with retrospect effect, with the required consent of numbers. If the majority over two thirds agree even after the President vacates office, can he not be made answerable and accountable for his acts committed while holding office? and Punished Accordingly? Over to Mr. Elmore Perera for clarification.

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      Quite agree with this about manmade laws: It seems not only Education sector, but on many other sectors, laws remain years long the same – not subject to get amended. Where I have been here, I hear almost every month about the amendments made to the laws. Latter should be the reality. Why donot the lawmakers in SL at least today – make genuine efforts to do their best – is my question. They just discuss only- but almost every tasks remain as has been before due to lack of amenments ot the laws that are current available – but are not used because they need reforms.

      There are laws related to the elderly people, but lack of proper enforcements- these laws cant be applicable accordingly:

      http://www.youtube.com/watch?v=w7QXwPSH21M

      There should be laws – that should be applicable when ministers behave as animals:

      http://www.youtube.com/watch?v=9qX6lNYx5NA&feature=related

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    Being an erudite , astute , fearless Lawyer,Accountant , ex-Civil Servant
    Elmore has utilised his talented intellect throughout his entire life ,for the betterment of his fellow-beings and to mete out justice to the down
    trodden ! As evident in this article , his penchant to lucidly simplify
    complex legal jargon so that even a child could understand ,is his greatest forte . His attempts to do precisely that in the Courts ,were
    possibly the reason why he incurred the wrath of some members of the Bench , in the first place . His knowledge of the law and its application
    remains , undisputed ! He is as steadfast and unbending to ensure that
    the Law is dispensed with equitably , mercifully , justly and fairly !
    He is known to fight tooth and nail for the principles he stands by !
    He has the strength of ten , because his heart is pure !
    We require more of these men of stature to safeguard our rights , freedom and justice in this restless land of ours !!!

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    Senior lawyer Elmore Perera’s article gives much food for thought.
    The immunity conferred on the President from legal proceedings in a court of law or any other tribunal for any act of commission or omission on his part under Article 35 (1)of the Constitution is subject to certain provisos stated in the same Article. For instance, the immunity is not applicable to anything he had done or omitted to be done in his capacity as a Minister of the Cabinet. For example, according to my understanding, legal proceedings can be instituted in respect of any impugned act of commission or omission committed by him in the charge of his duties in a position which is quite independent of his substantive office. However, such legal proceedings in such a case should be instituted against the Attorney General.
    Another interesting point in regard to the immunity conferred on the President is according to a ruling given by the Supreme Court – I think it was former Justice Mark Fernando who gave it – the immunity enjoyed by the incumbent President ceases to exist the moment he ceases to hold that office.
    Yet another interesting point is that under the Article 42, the President shall be responsible to Parliament for the due exercise , performance and discharge of his functions under the Constitution. Is this provision directly related to the provisions relating to the impeachment of the President or does this provision empower Parliament to question the President regarding any act of his which the latter deems questionable? Can Mr. Elmore Perera or any other knowledgeable person clarify?

    I think there were ideal occasions in the past where these constitutional provisions could be used as a deterrent to the dictatorial tendencies of the Presidents to come. I need not emphasize that the ordinary people of this country look up to the judiciary, legal fraternity and the law makers to interpret the Constitutional provisions or/and to seek interpretations with the vital need for strengthening their (people’s) inalienable sovereignty and safeguarding democracy in view.

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    Saman Wijesiri. Interesting thoughts. These will be applicable in a developed and ideal democratic set-up specifically where Parliament and the Judiciary are alert and where voters have a resonable level of education and civil understanding. Our is far from these lofty features, sadly.

    Senguttuvan

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    Even as far back as the sixties, when Junius Jayawardene suggested an executive presidential system, Dudley Senanayake had predicted that it would be a road to eventual dicatorship when discounting its merits. Sirimavo Bandaranaike, Colvin R De Silva, NM Perera etc had had reservations about the intents and outcomes when JR finally arrogated to himself executive powers in 1978.

    More recently, Chandrika Kumaratunge had vehemently declared that it would be dismantled, adding to similar voices from Mahinda Rajapakse and others at the time. Yet, no leader, or aspirant to power waiting in the wings (often in vain)has so far taken the bull by the horns and divested the country from this system which is inappropriate for a politically immature nation such as Sri Lanka, is dangerous and which subjugates all other institutions set up by the will of the people.

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    The so-called ‘Learned Judges’ in the Apex Court should be ashamed of themselves for failure on their part to uphold the trust placed in them by the people of this country and keeping the eminent lawyers in the caliber of Elmore M Perera at arm’s length. Surely, they have set a bad precedence to other lawyers not to follow Elmore’s foot step that would invite perhaps end their career in the profession.
    It is very unfortunate that this lawyer’s practice was effectively destroyed with imposition of lengthy suspension for no fault committed by him, whereas hundreds of other crooks in the profession are allowed to prosper undeterred.
    Elmore M Perera was so bold, fearless and uncompromising and the only full bench of the Supreme Court in a personal matter speaks for volumes about this person.Yet, in a country where only cowards are given full recognition in the profession, his practice was prematurely ended as a result of a carefully calculated ‘judicial conspiracy cooked up by the man with ‘highest degree of integrity’, Sarath N Silva, who held the highest office in the Judiciary.

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    Does it really matter who can sue who anymore? The country has already been sold to Economic Hitmen from China already. It is a matter of time before they come to claim ownership. Isn’t this like worrying about the seating arrangements at the dinner table when the Titanic is about to sink?

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      Straight goods!

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