A strange notion prevails in Sri Lankan legal circles that presidential immunity extends even to constitutional violations. This is despite the fact that one of the grounds for the impeachment of a president is ‘intentional violations of the Constitution’, as set out in article 38(2) a(i).
A judgment made by the Indian Supreme Court on January 24, 2006 in this regard is quite illuminating. In the writ petition of Rameshwar Prasad and Ors v. Union of India and Anr (Writ Petition (civil) 257 of 2005), the court observed that “this court cannot remain a silent spectator watching the subversion of the Constitution.” The court also held:
“While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the Court to judicially scrutinise the attack made to the proclamation issued under Article 356(1) of the Constitution of India on the ground of mala-fides or it being the ultra-vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala-fide act is wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression “purporting to be done” in Article 361 does not cover acts which are mala-fide or ultra-vires and, thus, the Government supporting the proclamation under Article 356(1) shall have to meet the challenge.”
The court also held when it came to an act or order pertaining to the executive power of the Government of India, though that act or order may be expressed in the name of the President “it is for the concerned minister or ministry to whom the function is allocated under the rules of business to defend and justify such action/order.” The Court went on to state:
“The constitutionalism or constitutional system of Government abhors absolutism; it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”
The court also referred to the oath that is prescribed under the Constitution to perform duties of office and to the best of his ability, preserve, protect and defend the Constitution and the laws, further observing that in the exercise of discretion or otherwise it is not permitted to do anything that is prohibited to be done. The court further held that immunity granted by the Constitution does not affect the power of the court to judicially scrutinise the grounds of the mala-fides or ultra-vires, further stating:
“The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of mala-fides are required to be defended by Union of India or the State, as the case may be.”
The court went on to quote from Aharon Barak, President of the Supreme Court of Israel, from an article he had published in the Harvard Law Review, observing that:
“The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution by contrast, is drafted with an eye to the future. Its function is to legitimate exercise of government power and, when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often imagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.”
All these considerations from this recent Indian judgment have relevance beyond India as the issue of immunity of heads of state is a matter of paramount importance in the region. The case has a direct bearing on the present discussion in Sri Lanka regarding the attempt by the newly elected president and the cabinet to ignore the 17th Amendment to the constitution and not to make appointments required for the Constitutional Council, without which the provisions of the 17th Amendment cannot be made operative. As of now the Constitutional Council, the National Police Commission and Public Service Commission are not functioning and a cabinet decision was made on December 22, 2005 to hand over the powers of these constitutional bodies to the ministers responsible for different areas of administration. This cabinet decision is a clear violation of the Constitution of Sri Lanka. The Indian decision clearly demonstrates that such violations of the constitution are not protected by presidential immunity however that immunity is worded. The Asian Human Rights Commission urges all concerned persons to agitate this matter in courts and lobby at all levels to ensure that basic constitutional provisions for the protection of human rights are not allowed to be violated.
The entire Supreme Court judgment may be found here:
http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=27435
(Text of this judgement will be available at the www.alrc.net soon)
