The judgment of the Court of Appeal on the application of two citizens regarding the recent appointments to the Police and Public Service Commissions by the President of Sri Lanka [CA Application 66/2006] raises some fundamental problems regarding the implementation of the Constitution of Sri Lanka.
The issue raised by the petitioners was that the Commissioners to these two Commissions have been appointed by the President, contrary to the provisions of the Constitution, which requires that the nomination of the candidates to be appointed to these Commissions should be done by the Constitutional Council and the President would thereafter appoint them. In the court this obligation of the President was questioned and the court relied on Article 35 (1) of the Constitution which provides for presidential immunity, from any proceedings in any court for his actions or omissions, whether they are official or private. Article 41 B (1) of the Constitution states as follows: No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council
These two provisions of the Constitution were examined before the Court of Appeal. The issue then was which Article was to prevail over the other. To answer this the court relied on Article 35 (3) which places only one limitation to Article 35 (1). Article 35 (3) reads as follows: The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article 130 (a) [relating to the election of the President or the validity of a referendum or to proceedings in the Court of Appeal under Article 144 or in the Supreme Court, relating to the election of a Member of Parliament:]. Thus, the essence of the judgment is that the violation of Article 41 B (1) by the President cannot be challenged by any court of law.
Flowing from this judgment is the conclusion that if the President by his act or omission violates any provision of the Constitution other than under three articles mentioned in the above paragraph [Articles 44 (a), 129 (2) and 130 (a)] he will not be liable to be questioned before a court of law. Under the Constitution of Sri Lanka everyone is equal before law. It means that any person who violates the Constitution is liable for action in an appropriate court of law. However, the position as of now is that if a President violates the Constitution then the President is not liable for any action before court. Thus, Article 12 (1) of the Constitution which reads all persons shall be equal before the law and entitled to the equal protection of law has no effect at all as far as the President is concerned. Thus, the President is above the jurisdiction of courts except regarding the three Articles of the Constitution mentioned above. He is thus entitled to remain outside the jurisdiction of courts when he violates the rights enshrined in the Constitution.
Article 19 of the Constitution reads
the national language of Sri Lanka shall be Sinhala and Tamil. If the President by an act or omission violates this provision no action will lie against the President in a court of law. This also applies to other provisions regarding language in Chapter IV of the Constitution.
Chapter V of the Constitution is about citizenship. Under this chapter, the basic provisions of citizenship have been defined. If the President, by any act or omission violates the provisions of this Chapter no action cannot be brought against the President in a court of law. Chapter VI is the Directive Principles of State Policy and Fundamental Duties. If the current President decides to replace Mahindachinthanaya in place of Chapter VI of the Constitution, this too cannot be challenged before a court of law. For example, if a President prefers to deal with welfare in a particular part of the country (for example the Presidents home constituency), as against the rest of the country, this too cannot be challenged in a court of law.
Chapter VII of the Constitution is on the subject The President of the Republic. Suppose the present or a future President decides to confer powers and privileges on the President which are not recognised in this Chapter, again, the same situation will follow. Sri Lanka has had one instance when a former President was awarded a piece of land by the present cabinet and later due to this being questioned in court, the gift was withdrawn. Suppose, the gift was given by the President himself, directly, to the former President, this cannot be challenged in a court of law. Suppose a president gives himself an award of land or any other state property, this too cannot be challenged before a court. In many countries there have been allegations of corruption committed by heads of state while in office, and inquiries have been held into the matter and sometimes actions have been taken in courts. This cannot be done in Sri Lanka in terms of the interpretation of Article 35 of the Constitution taken by the Court of Appeal.
Chapter VIII of the Constitution is on the executive. Under this, the President is responsible to the parliament for due exercise and performance and discharge of his powers, duties and functions under the constitution and other laws including public security laws. Suppose a president decides that he shall not be responsible for the parliament and makes orders directly in any manner he wishes, this too cannot be challenged in a court of law. There are whole series of judgments where immunity of state agents signing documents under the public security law had been given immunity under some laws or emergency regulations, the courts have interpreted such immunities in a very limited way, thus safeguarding the basic rights of the people. However, if any of these orders were directly made and signed by the president himself, then this too cannot be challenged before any court of law. Under the same chapter, there are such matters as cabinet ministers, deputy ministers, the prime minister, secretaries to the ministers and the like. In any of these matters the president can violate any part of the constitution and the consequence as far as actions in courts are concerned is the same as stated above.
Chapter IX of the constitution is on the public service. It deals with such appointments as that of Attorney General, Head of Army, the Navy, the Air Force and the Public Force. Suppose, the president violates any of the provisions in the Constitution or in any other law or the best practices that have been traditionally followed in these matters, even such actions cannot be challenged before a court of law. If a person with no legal qualifications is appointed as the attorney general on the basis of a preference which a president may think is to his advantage, there is nothing that can be done before a court of law on that matter too. In fact, on the issue of public service the president has already contravened the constitution as amended, and the court has held that they do not have jurisdiction to go into the matter.
The next section of the constitution is on legislature. It deals with parliament, official oath or affirmation, speaker, deputy speaker and chairman of committees, secretary general of the parliament, vacation of seats, privileges, immunities and powers of parliamentary members, allowances of members and power of parliament to act upon new vacancies. In any of these matters if the President by any of his acts or omissions violates the provisions of this chapter no action can be brought against him in a court of law. Article XI is on legislature covering subjects as sessions of parliament, adjournment, voting, quorum, standing orders, legislative power, delegation of legislative power, duties of attorney generals in regard to publication of bills and passing of bills of resolutions, certificate of speaker, when bill becomes law, expulsion of members and imposition of civic disability. The legal status of all these provisions is the same as far as action against the president in court in violation of any of these is concerned. Suppose, a president removes the civic abilities of the leader of opposition or for that matter any other member of political party, by his direct action, for example signing a paper directly stating such removal of such civic ability, such actions cannot be challenged before a court of law.
Chapter XII is on amendment of the Constitution. This covers subjects as amendment or repeal of the constitution, which must be expressed for approval of certain bills of a referendum and bills inconsistent with the constitution. In any of these matters the President may violate the constitutional provisions and no court will have power over it. For example, if Article 83 which prohibits the extension of the term of office of the president or duration of the parliament is violated by the president by his direct action or omission, say for example making a written declaration by him that he had extended his time of office, or time of duration of the parliament beyond six years, regarding this matter too no court will have jurisdiction to undo the action of the president.
Chapter XIII is on referendum and chapter XIV is on franchise and election. These are all very fundamental provisions of any constitution. Even on these the court has no jurisdiction if the president violates the constitution. For example if the issue of proportional representation is changed by the president directly through his action, for example a presidential decree, this too is a matter on which the courts will have no jurisdiction. Further if a person who had not been qualified to be elected as a member of parliament in violation of Article 100 of the constitution, with direct approval of a President, this too will be outside the jurisdiction of the court.
Chapter XV is on the judiciary dealing with such matters as establishment of courts, public sittings, independence of judiciary, appointments, removal of judges to the supreme court and the court of appeal, salaries of judges of the supreme court and the court of appeals, acting appointments, performance or discharge of the function of judges, appointment, removal and disciplinary control of judges of the high courts, commissioners of the high courts, judicial service commission, secretary to the commission, fiscal for the whole island, appointment of other judicial officers, interference with the judicial service commission, interference with judiciary and immunity of members of the commission. Suppose a president was to establish courts outside those recognized by the constitution so far, for example starting courts of appeal in places other than Colombo, and the president does so with a presidential decree, this too cannot be challenged in a court of law.
Chapter XVI is on the Supreme Court. It covers such topics as general jurisdiction of supreme court, constitution of the supreme court, constitutional jurisdiction of the supreme court, ordinary exercise of the jurisdiction in respect of bills, special exercise of constitutional jurisdiction in respect of urgent bills, determination of supreme court in respect of bills, validity of bills and legislative process not to be questioned, constitutional jurisdiction in the interpretation of the constitution, fundamental rights jurisdiction and its exercise, appellate jurisdiction, right of appeal, consultative jurisdiction, jurisdiction in election and referendum petitions, in respect of parliamentary privilege, sittings of the supreme court, appointment of ad hoc judges, right to be heard by the supreme court, registry of the supreme court and the office of the registrar, the rules of the supreme court, court of appeal, its jurisdiction, powers of appeal, power to issue writs other than writs of habeas corpus, power to issue writs of habeas corpus, power to bring and remove prisoners, power to grant injunctions, parliamentary election petitions, inspection of records, sittings of the court of appeal, registry of the court of appeal and the office of the registrar. On any of these matters if a president decides to act contrary to the constitution, no court will have jurisdiction to adjudicate on the matter. For example, if the president by a presidential decree grants a magistrate court, the power of writ jurisdiction, there is nothing that can be done to prevent it by way of an action before a court.
Chapter XVII of the constitution is on finance. It covers such important matters such as control of parliament over public finance, consolidated fund, withdrawal of sums from consolidated fund, the contingencies fund, special provisions as to bills affecting revenue, auditor general, duties and functions of auditor general. It is well known that there had been considerable problems created by some agents of the present regime against the auditor general. Suppose a president decides to appoint an auditor general ignoring the provisions of the constitution in the same manner a supreme court judge and two appeal court judges have been appointed ignoring the 17th amendment, this matter too cannot be challenged, in any court of law. If a president decides to remove the control of parliament over public finance and does so by a presidential decree, this too will fall within an action of the president under article 35 (1) of the Constitution.
Chapter XVII A is on provincial councils going into such issues as establishment of provincial council, governor, exercise of powers of the governor, membership of the provincial council, term of office, board of ministers, status of provincial council, assent, public security, failure to comply with directions, failure of administrative machinery, parliamentary confirmation of provincial powers to the president, financial instability, high court, function, powers, election etc. of the provincial council, finance commission, special provision enabling provincial council to exercise powers under this chapter and transitional measures. The legal situation is same if a President act in contrary to this chapter, it shall be no different to acting in contravention to the 17th amendment as far as the jurisdiction of courts are concerned.
Chapter XVIII is on public security. Chapter XIX is on the parliamentary commissioner for administration. Chapter XX is on entitled general, which covers such subjects as international treaties and agreements, prohibition of violation of territorial integrity of Sri Lanka. Article 157 states that no executive or administrative action shall be taken in contravention of the provisions of a treaty or agreement. However, this article is no different to the articles of the 17th amendment and will not be protected specially by the courts, if a president decides to contravene it. Regarding prohibition against violation of territorial integrity, if a president is acting contrary to this provision, again no action shall lie against him.
Chapter XXI is transitional provisions, XXII on interpretation and XXIII on repeal of the earlier constitution, XXIV is the promulgation of the constitution and there are schedules giving names of administrative districts, national flag, national anthem, the affirmations and several other incidental matters. On any of these matters to any action done by a president in contravention any of the constitutional provisions has the same status as violations of the 17th amendment.
There is a further issue arising from the court of appeal judgment. It is that if the appointments to the supreme court, court of appeal and commissions such as public service commission, police commission and the national human rights commission cannot be challenged in a court of law, then, dismissal of any persons of the supreme court, court of appeal and any of the commissions under the 17th amendment or under any other provisions of the constitution is done by the president no action shall lie against such action in a court of law. This should have a chilling effect on anyone who is holding any office in these institutions. For example, a Supreme Court judge can be removed only by way of a resolution, passed in parliament by the 2/3rd majority. However, if a president were to decide to do so and does any action for that purpose, such action will be covered within Article 35 (3) of the Constitution.
