Thursday 6 December 2018

Gajalakshmi Paramasivam

06 December 2018

The Attorney General is the Proper Person

[The Attorney General yesterday informed the Supreme Court that it has no jurisdiction to entertain petitions questioning the conduct of the President, as such the dissolution of Parliament by him under Article 126 of the Constitution.] Daily News article ‘SC has no jurisdiction to hear petitions: AG
As stated in my previous analysis in article headed  Is the Sri Lankan President Above the Law? – Yes’
there are certain instances where President’s actions are not covered by immunity and some of these are covered by Article 126:

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
126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.
(2) Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by not less than two judges.
The Attorney General himself seems to have not done his homework in this regard. Poor Sri Lankans losing more and hope that the government would bring them together through the law.

When we believe in law the law comes to our support when we need it. This morning I responded to a Hindu Religious leader in Sri Lanka as follows in relation to my article ‘How Media Karma works’:

[Thank  you. I do believe that to the extent we uphold Truth as per our experience, Truth comes to us including through cyberspace, when we need support and guidance. Knowing that such a system is true is the best discovery I believe I have made in my life.]

This morning when I wrote my above mentioned article I had not read the news report by Daily News. But now when I did – my mind was already ready to place the information in the right order and I concluded that the Attorney General was misleading the courts possibly subconsciously. This support from inside to me is confirmation of the above discovery – that our inner divinity always supports our true needs. We are never alone in that space. Given that my motive is to share my understanding to facilitate the common investor in the issue, my writing I believe is empowered exponentially. That is what governance value is about. The way the President has immunity I also have immunity when I express my belief. That is what democracy is all about. It is about the freedom of the believer.

To truly qualify for Presidential immunity as stipulated under Article 35 of the Constitution, the President ought to have believed that it was good for the Nation. Such belief would not damage anyone’s fundamental rights. Even though the law protects the person through immunity, the other party concerned has every right to be heard on the basis of damage to her/him through decisions made by the President in her/his official capacity. The way oaths are taken in front of the President who symbolises the Nation, in this instance the Attorney General as the highest law Administrator symbolically represents the Nation. The actual verdict is against the president but since he is expected to have decided on the basis of his belief – the other side is the Nation. In fundamental rights cases – they are the Nation v the Nation.

No comments:

Post a Comment