Gajalakshmi Paramasivam

13 December 2018

Judicial Immunity & Presidential Immunity

Whatever the final outcome of the current political turmoil within the Parliament of Sri Lanka, there has been healthy sharing of ideas and beliefs especially through regulated media. An email is also such a medium when the user is firmly regulated on the basis of appropriate principles – in this instance global principles and/or personal belief that the sharing  would be of value to the other side also. Those covered by belief  are immune from  fault-finding.

Immunity from prosecution is often granted to leaders who are taken to have Governing power over the whole. Governing power is Absolute in value. Executive power is relative in value. Judges’  immunity is also limited  in real terms to their use of  Discretionary powers after Judicial powers have failed to produce a lawful outcome or produce an outcome that would damage the fundamental rights of the other side. The rest of the Judge’s decision is liable to be scrutinized in higher courts. Judge of the highest court is immune from such scrutiny her/his judgments also.

Likewise Parliamentary privilege covered in Sri Lanka through Parliament (Powers and Privileges) Act.

One of the early lessons I learnt through Tamil culture is that one does not find fault with the guru. A student who believes in the guru would not see any fault in the guru. That is when guru and disciple become One. Then the guru delivers through the disciple and v.v. In democracy the customer is taken as right, until proven otherwise,  due to the requirement that the supplier must bring the customer as part of her/him/itself.

In the Colombo Telegraph article headed ‘Executive Presidency- Absurdity Of The Immunity Cover!’ – the author Mr Lukman Harees refers to the following case brought against the then Attorney General - Mr Shiva Pasupati – a Tamil. The case was named ‘Mallikarachchi vs. Siva Pasupathy’

It ought to have been named Mallikarachchi  vs Attorney General – as  the highest legal power within the Government. The individual is mere medium of the government.

Justice Sharvananda, also a Tamil is quoted by the above author as follows:

[In the SL Context, Sharvananda CJ in Mallikarachchi vs. Siva Pasupathy explained the immunity granted to the President as follows: ‘…the President is not above the law. He is a person elected by the people and holds office for a term of six years. The process of election ensures in the holder of the office correct conduct and full sense of responsibility for discharging properly the functions assigned to him. It is, therefore, necessary that special immunity must be conferred on the person holding such high executive office from being subject to legal process or legal action and being harassed by frivolous actions. If such immunity is not conferred not only the prestige, dignity and status of the high office would be adversely affected but the smooth and efficient working of the Government of which he is the head would be impeded. That is the rationale for the immunity cover afforded to the President’s actions both official and private’. ]

I mention Tamil with a reason. The above matter was decided in November 1984 – when the Executive Presidency was strongly active. The two gentlemen – one representing the highest legal Administrative power of Sri Lanka and the other the highest Judicial power, confirm inner powers through which they got to those positions despite obvious discrimination against Tamils – especially in Administration at the individual level. They motivated other Tamils to have ‘hope’ of reaching  the parallel positions to that of the President through the political pathway.

When Mr Arjuna Mahendran let us down as Governor of Central Bank, he seriously damaged this hope. He proved to be mere trader. By appointing Mr Indrajit Coomaraswamy the Wickremesinghe leadership restored that confidence in the Tamil community. 

To me,( a genuine practitioner of law ) Belief is the basis of any immunity – either  from judicial orders or executive orders. This applies also to the citizen. Given that majority citizens do not have active knowledge of law but are subjected to administrative rulings and judicial orders, their representatives have immunity from prosecution which they are required to share with their constituents to keep legal actions to minimum levels. But individuals being fallible and therefore not worthy of such immunity – as was demonstrated by Mr Sirisena – exceed their powers of belief . But like I said about Attorney General  Shiva Pasupathy and Chief Justice Sharvananda, the President’s position is the highest position through which most citizens would develop political belief and hence the purity of that position is maintained to facilitate development of wholesome faith. Likewise guru position and for that matter any CEO position. One of our trainees who now works for Jetwing, continues to address me as CEO due to attributing this guru position. He is a strong  reason why I stay at Jetwing in Jaffna. Jaffna is the base of my fundamental values in education. Jetwing is an appropriate institution through which to show the heights to which such fundamentals would lift us. Jetwing is also the parallel of our home here in Coogee in fundamental standards of health and security in holiday area.

Belief is the basis of self-governance. Whoever holds that highest position in any field, needs to be seen as being faultless. This is necessary for structural purposes. It however does not hold in love and war – where belief overrides relativity.

The current Sri Lankan president declared war against minorities – by ‘dismissing a Prime Minister elected by Parliament’ and ‘appointing’ one of his liking. In the court of  Dharma – the moment the one uses powers for relative purposes – one loses the belief based immunity. Hence both Executive powers and Governance powers cannot be applied to the same part of the matter at the one time.

The true governor begins with the voter’s belief , escalates it to the highest possible level through Administration and presents that as her/his Belief. One who condones bribes to change religions / political alliance – confirms stagnation at voter level. If majority Sri Lankans vote for Mr Sirisena to be President – then Sri Lanka as a whole would isolate itself from the high end values of globalization.

As per Daily Mirror ‘TNA MP for Jaffna district Dharmalingam Sidaththan told Daily Mirror that his party extended conditional support for Mr. Wickremesinghe to get the required majority to become the Prime Minister.’

This is so very wrong. It does not cover democratic Tamils. Any quid pro quo deal carries with it relative value and would lack the power to raise locals to National and Global level thought structures that only Belief has. Belief will teach its own lessons to those who damage belief based fundamental rights. Relativity is mortal; Belief is Divine.