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:
DECLARATION OF ASSETS
AND LIABILITIES LAW No 1 of 1975
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 ; ……………………
CONSTITUTION
OF SRI LANKA
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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