Thursday 6 December 2018

Gajalakshmi Paramasivam

06 December 2018

Is the Sri Lankan President Above the Law? - Yes
[The Right to Information Commission (RTIC) has directed the Presidential Secretariat to disclose the declaration of assets and liabilities of Ranil Wickremesinghe in his role as Prime Minister for 2015 and 2016, the Transparency International Sri Lanka (TISL) said on Wednesday…………………………
Meanwhile, on TISL’s request for access to the asset declaration of President Maithripala Sirisena for 2015 and 2016, the RTIC held that the Declaration of Assets and Liabilities Law does not include the position of President.] – Daily Mirror article headed ‘RTI Commission orders disclosure of RW’s assets as PM’
My search based on the above highlighted the following:
Section 2 . The provisions of this Law shall apply to every person belonging to any one of the following classes or descriptions of persons:-
(a) members of Parliament;
(b) Judges and public officers appointed by the President, public officers appointed by the Cabinet of Ministers, judicial officers and scheduled public officers appointed by the Judicial Service Commission and staff officers in Ministries and Government Departments ; ……………………

Article 33A:
[The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.]
Article 35
(1)  [While any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity: 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 official capacity: Provided further that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President under Article 33(2)(g).]

Article 126, as per my interpretation is about fundamental rights.

Article 42
(3)  [The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers.]

The essence of the above to my mind is that while the President is being held accountable to Parliament as part of the Parliament, s/he is being protected as being above the law. In other words, the position is purely Governing position with that Article 35(1) exemption.

If therefore the President enjoys immunity from Prosecution,  is he accountable to the Parliament?

To my mind, a governor is immune from prosecution, due to the requirement that the Governor decides by belief. Where the President has Administrative duties – s/he needs executive powers and is also accountable like any other executive and is also liable to be prosecuted. Parliamentary privileges are applicable on the basis that elected members are governors. It does not apply to their Administrative conduct.  

The Constitution needs to be amended to rectify this contradiction. To the extent the President  carries Executive powers – her/his Assets and Liabilities are also covered by Declaration of Assets and Liabilities Law No 1 of 1975. If immunity is being sought – then the President is not entitled to any Executive powers. Can’t have both. A mere mortal is likely to become dictator when s/he has both. Mr Wickremesinghe is reported to have  asked President Sirisena not to act like Hitler.  It looks as if the Constitution groomed the President to become one.

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