With the people Sri Lanka ousting the Mahinda Rajapaka regime, a path opened for Sri Lanka to return to the rule of law. The 1978 Constitution masterminded by J.R. Jayewardene, of which Mahinda Rajapaksa took full advantage, was aimed at completely displacing governance by rule of law in Sri Lanka. Therefore, it is a fair question to ask whether the steps taken by the new government since its electoral victory on 8th January 2015 is bringing Sri Lanka closer to rediscovering the path of the rule of law?
One good test is to look into the amendments placed before Parliament by way of the 19th Amendment to the Constitution, published in the government’s Gazette on 16th March 2015. It is not the purpose of this statement to go into details of all the amendments but to deal with one single aspect: the immunity of the President.
Taking up only this single issue is justified. Presidential immunity, as contained under the Article 35(1) of the 1978 Constitution was subject of great debate prior to the 8th January 2015 elections. It was the hope of those who opposed this provision that significant changes would be brought about to ensure that the citizens, in proper forums of law, could challenge any transgression of law by the Executive President. However, the proposed amendment has only provided for the making of an application under Article 126 of the Constitution, by bringing of an application for violations of fundamental rights of a citizen.
The relevant part of the amendment is set out as follows:
“…Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney General, in respect of anything done or omitted to be done by the President, in his or her official capacity….”
Under the British tradition, all actions done on behalf of the government by any person could be challenged by way of prerogative writs. The same principle applies to the highest officer of the state who, in the case of Sri Lanka, is the Executive President. The proposed amendment has denied the citizens the ability to challenge any illegal acts committed by the Executive President by way of writ. The new amendment confines the window only to the jurisdiction of Article 126 of the Constitution.
This way, while on the one hand citizens have been denied the right to challenge executive actions of the President on the basis of illegality, through the writ jurisdictions of the courts. They are also denied the right to challenge them on the basis of violations of human rights other than violations of fundamental rights.
The jurisdiction under Article 126 of the Constitution is confined to violations of fundamental rights and not all human rights. The recognised fundamental rights under Article 126 of the Constitution are very limited. There are many forms of illegal acts that will not fall under fundamental rights as enshrined in Chapter III of the 1978 Constitution. There is no avenue open for challenging any such act even under the proposed amendments.
Take, for example, the closing down the doors of the Supreme Court for Supreme Court judges or any similar acts of the Executive President against the Judiciary; or the matter of depriving the Supreme Court of Sri Lanka the jurisdiction to intervene into any matters in a particular part of a zone within Sri Lanka by an order of the President; or expropriating any property belonging to some person or persons by intervention of the President; or pursuing the prosecution of a person without legally recognised just cause; or preventing prosecution against a person against whom there is legally valid reason to prosecute.
Consider another list of examples: use of the Presidential Fund to take undue advantage during an election, say by organising grand feasts during the election campaign for activists; use of the President’s security officers in carrying out illegal acts; presidential interference to prevent investigation into serious crimes; making certain orders, say to appropriate customs officials not to strictly impose laws and regulations regarding the illegal transport of drugs or any other items; engaging in physical assault or any other abuse of individuals. A long list that could be added based on information of alleged acts supposed to have been committed in the not so recent past.
None of these matters can be brought under the jurisdiction of Article 126 of the Constitution, as they may not be recognised as a violation of fundamental rights under Chapter III of the Constitution.
Since the new government assumed power, it has revealed a huge amount of information on the practices under the former regime that can be attributed directly to the President, which, if true, warrants legal reprisal. It is therefore natural for people to expect that under the new amendments measures will be taken to ensure the enactment of sound legal barriers for the possibility of the recurrence of such actions.
The fundamental principle of the rule of law is that no one is above the law including the highest officer of the state, which, in the case of Sri Lanka, is the Executive President. There has been huge agitation to end the immunity enjoyed by the President as enshrined in Article 35(1) of the 1978 Constitution. This specific proposed amendment, which confines action to that possible under Article 126, does not answer those criticisms.
Thus, as there is still time, it is suggested that the proposed amendment should include the possibility for action under the writ jurisdictions against any illegal acts committed by the President.
The defence of some of the government spokespersons is that the President may have to go to court every day if such immunity is not available. In all the democracies, there are recognised rules of immunity on matters done on behalf of the state. Besides this in developed democracies there are also well-established conventions that limit the power of the head of the state. Though conventions are not written laws, they have the powerful effect of controlling the actions of state officers, including the head of the state, and going against such conventions earn the wrath of the people.
For example, that a person who engages in drunk driving is not a suitable person to hold high office is now a recognised norm in many countries. As such conventions do not exist in Sri Lanka, there is more reason to have strict definitions of what citizens could object to, so as to prevent the recurrence of the malpractices that the new government itself alleges were committed by the previous regime.
This can easily be overcome by creating provisions that will subject the Executive President to the writ jurisdiction of the highest courts in Sri Lanka.
