Focus on Rights

Presidential immunity, the constitutional council and the cabinet of ministers
What can citizens do if the Executive President of the country unreasonably and unconscionably delays to make the appointments to the Constitutional Council (CC)?

The non functioning of the CC has directly justified a dangerous practice whereby powers of the now defunct independent commissions on the police and the public service were allowed by the Cabinet to be "assumed" by the Inspector General of Police (IGP) and ministry secretaries/departmental heads.

This December Cabinet decision is not shielded by immunity and is open to challenge on the ground of violation of rights (see Public Services United Nurses Union vs Montague Jayawickrema, Minister of Public Administration and Others [1988] 1 Sri LR 229). Establishing such a violation, given its sweetly reasonable applicability purely on an interim basis until the CC is appointed, (and its members engage in making the stipulated recommendations to the second term of the independent Commissions), will however be complicated.

But the presidential duty to make the appointments to the CC once the required nominations are communicated to him is quite a separate matter altogether. Two issues arise here for analysis. Firstly, is it fair to bring this delay solely to the Presidential door?

Let us examine the situation a little further. The CC comprises ten persons including the Leader of the Opposition, the Prime Minister and the Speaker, ex officio. Out of the remaining seven persons from outside, five are nominated jointly by the Opposition Leader and the Prime Minister while one is the Presidential appointee. The last nomination is by political parties not belonging to either the governing or opposing benches in parliament.

These nominations must not only be made but also communicated to the President in writing in terms of Article 41A(5) of the 17th Amendment for the duty of appointment to rise. Whether these duties have yet been carried out by those constitutionally responsible is a still a matter of doubt.
Last week, we were informed through newsreports that the Leader of the Opposition had in fact, only made his nomination to the Constitutional Council (CC) some weeks back.

This interesting titbit of information corrected earlier reports to the effect that the nomination had yet not been made. Some questions then immediately arise for clarification. What, in heavens' name, took the Opposition Leader so long to make this nomination when the need had arisen as early as last year after the term of the first CC ended? And does it not behove his office to, at least, issue a public statement to the effect that the nominations have in fact been communicated to the President as constitutionally required instead of reliance on conflicting news reports?

Such a statement by the Leader of the Opposition would have mitigated the tremendous public concern manifested. But what we have is profound indifference. Surely, an opposition must challenge the Government in regard to observance of fundamental requirements of constitutional governance rather than be equally indifferent? This particular dereliction of duty attracts a high degree of culpability.

Assuredly, as a result, it has been easier for the Government to ignore its own constitutional responsibilities. And then, we have the Prime Minister. The current President was, of course, the former Prime Minister. For the better half of last year, both Mr Mahinda Rajapakse and Mr Ranil Wickremesinghe had an equally heavy constitutional duty jointly imposed upon them, to make their five nominations to the Constitutional Council, three of which had to be in consultation with minority political parties.

What is somewhat conveniently forgotton is that a joint constitutional responsibility is imposed on both the Prime Minister and the Leader of the Opposition to get the minority parties to agree on their nominees. The burden cannot be passed on to the latter and then casually shrugged off on the basis that they are taking time to reach a consensus.

The agonizing inability to agree on the part of the Muslim parties took most of last year. The joint responsibility for this kind of culpable delay, which defeats the very purpose of the 17th Amendment, needs to be borne by the Leader of the Opposition and the former (together with the current) Prime Minister.

Meanwhile, an equally deafening silence prevails in relation to the Prime Minister's individual nominee, which makes up the last of the five joint nominations. A similar ambiguity exists regarding the appointee of the President and for that, matter, the nominee of political parties not belonging to the Government or the Opposition. The public deserves that it be informed forthwith in regard to the status of these seven nominations and appointment as the case may be.

Presently, this delay has not given rise to any perturbation by either the Government or parties in the Opposition. This includes the JVP who has now resoundingly lost its high moral ground as being primarily responsible for the enacting of the 17th Amendment.

Secondly, let us proceed to examine what citizens can do if the required nominations have, in fact, been made and duly communicated to the President but he does not 'forthwith' make the appointments (see 17th Amendment, Article 41A(5)).

A similar challenge arose recently when a public interest group called upon the judges of the Court of Appeal to compel former President Kumaranatunge to appoint the members of the Election Commission. The petitioner's argument was that the basic features contained in Article 41B of the Constitution did not permit the President to wield unfettered powers in respect of the appointment of the Elections Commission. Accordingly, she had no discretion but to make the appointments once the CC had forwarded the recommendations.

This contention was rejected. Article 35(1) of the Constitution was held to confer a 'blanket immunity' on the President from legal action in respect of anything done or omitted to be done in official or private capacity, except in limited circumstances constitutionally specified in relation to inter alia ministerial subjects or functions assigned to the President and election petitions. The present case did not come within the ambit of that exception and the applicability of Section 35(1) was held to make the petition not properly constituted in law. (see Public Interest Law Foundation vs the Attorney General and Others, CA Application No 1396/2003, CA Minutes of 17.12.2003).

Such instances needs however to be distinguished from cases where actions of subordinate officers are sought to be justified, relying on the orders of the President. Such a reliance has long been held to be unconstitutional. (See Karunatilleke vs Dissanayake [1999] 1 Sri LR, Senasinghe vs Karunatilleke, SC 431/2001, SCM 17/3/2003 and recently, Perera vs Balabatabendi and Others, SC(FR) No 27/2002, SCM 19.10.2004). The officers declared unable to seek refuge behind such presidential directives have included the Commissioner of Elections and the Inspector General of Police (IGP).

The end result is that a Presidential directive cannot be a defence to subordinate action if it is manifestly and obviously illegal. But where the acts or omissions of the President are directly in issue, the courts will be reluctant to intervene. This highly problematic distinction remains one of the many subversive features of the 1978 Constitution.

As a result, citizens are grievously affected in their inability to seek redress against clearly unconstitutional actions or omissions as the case may be. Perhaps the time has come for a radical and determinedly concerted challenge of this bar insofar as it pertains to the essential spirit of the constitutional document? Precedent in other jurisdictions may be instructive for this purpose.

Ultimately, some issues are very clear. The responsibility for the CC debacle cannot be vested solely in a Presidential incumbent newly in office. The culpability is collectively distributed across the political divide. However, until the political parties as well as the President are shamed into bringing the CC into being, are the citizens of Sri Lanka only expected to stand and wait?

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