Gajalakshmi Paramasivam

30 October  2019

SRI LANKA - ARTICLE 33A CONTRADICTS THE PRINCIPLE OF IMMUNITY

My attention was drawn to Mr Sumathiran’s sharing on Twitter – of the Financial Times article headed ‘The powers and functions of the new president’ by Dr Asanga Welikala. At this time of the day my mind does not comprehend the more complex presentations of law. Hence after skimming though those – I focused on the sections that I have already invested in through my own leadership positions where I had/have governing powers.

Elected by the People

The Sri Lankan President continues to be elected by the People. To my mind this means that the President carries the sovereign power of People. Every time one who feels Sri Lankan, completes a thought, expression  or activity to confirm truth – that person adds to Sri Lankan Sovereignty. Voting is one such activity. Writing is another.  Dr Asanga Welikala interprets this as follows:

[The president is the only elected official who enjoys a personal mandate from the whole country, and this will continue to be a source of substantial power and legitimacy for the way in which a president performs his constitutional functions. ]

No problem in identifying with that. To me it simply means that the citizen-governor relationship is bottom up and is limited to the total investment in Sovereignty by the People in their own part of Sri Lanka.

Executive Powers

Then comes the following by Dr Welikala:

[The president will be the head of state, head of government, and the commander-in-chief.]

Article 30 (1) of the Sri Lankan Constitution states:

[There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. ]

The wording of the presentation by Dr Welikala – endorsed by Mr Sumanthiran is different to that of the Constitution as structured by the Parliament. Every self-governing person is entitled by Truth to publish her/his interpretation in the forum in which s/he feels ownership.

The Tamil  Hindu hymn Abirami Anthathi confirms how nature delivered to a true devotee. We do not know as to how accurate the legend is. But to the extent our prayers through that hymn are answered we believe in that miracle. Such belief helps others who are in our common group through belief.  Likewise a Nation’s Constitution.

The above stated article 30(1) is the song of the government that came to power in 1977 and wrote the 1978 Constitution that created the Executive President’s position. When there is a clever President/Governor – Executive powers help escalate the form of the total to get status from the outside. But the 1983 riots confirmed that this escalation could not be sustained by the Government elected in 1977. To my mind, everyone who unjustly discriminates and/or ignores existing unjust discrimination loses the power of truth in their own home environments.

As per my reading - Article 30(1) remains unaltered by the 19^th Amendment to the Constitution. It clearly states ‘Executive and of the Government’.  Hence the ‘Government’ here is that part of the Government – that makes decisions by ‘belief based vote’. Executive part is the one that is decided by the Law that already exists at that point in time. There is separation of powers between the two. Article 30(2) was changed to reduce  the period from six years to five years.

Article 33 has been expanded – including through the addition as follows:

[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.]

Then Dr Asanga Welikala  states :

[That the defence of Sri Lanka is specifically mentioned as being a part of the sovereign Executive power of the people that the president exercises could give him considerable authority in relation to defence, military, intelligence, and even law enforcement matters. ]

I disagree for the following reasons:

The Executive power of the President or any leader need not be a Sovereign power. Sovereign power is the power of belief. That part of the  Executive Power derived from the Sovereign Power of the People confirms Governance power to Execute. This is declared through Article  4 (b) of the Constitution as follows:

[the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People ]

The Parliament has to vote but the President has the power to execute as per his intuitive / governing power.

Article 33 A includes ‘any written law’. Given that the belief of the President is likely to be different to that of the Prime Minister a law written by the Parliament under the leadership of the Prime Minister may not fit the ‘Constitution’ of the President. They are both entitled to Execute without Accountability – but within the constitution of their respective positions – as per their belief. Beyond that they are NOT covered by immunity and hence they are Accountable. One can relate to a law without believing. To the extent one uses means (intellectual or hearsay) above one’s belief – one is NOT covered by immunity of belief. Hence Article 33A contradicts the principle of immunity.

Laws that confirm immunity are usually in the nature of  Customary laws. This part is covered by Immunity from prosecution by any other part of government – in this instance – the Judiciary. Hence ‘considerable authority’ would be misleading . The constitution should  not provide for responsibility for the written law which is likely to include laws that challenge and maintain the intellectual skills  of the users – especially the global minded lawyers who charge a high fee to impress through their knowledge of law.

Dr Welikala  appears to demonstrate disrespect for the Constitution through the following:

[Another significant limitation comes into force when special provisions applicable only to President Sirisena lapse when he relinquishes office. It was provided that President Sirisena is permitted to hold the ministries of defence, Mahaweli Development, and the environment so long as he remains President. Once he demits office, only Members of Parliament can be appointed to cabinet and other ministerial office. Therefore, the new President assuming office after 16 November is no longer permitted to assign ministries to himself.  ]

If the term of Presidency was reduced during the term of the current President, then all other amendments also should apply when the amendment became law. Sections 1(2) and 1(3) of the 19^th Amendment provide as follows:

[(2) The provisions of this Act other than the provisions of section 9 (in so far it relates to paragraph (1) of Article 46 of the Constitution of the Democratic Socialist Republic of Sri Lanka) and the provisions of section 15 shall come into force on the date on which this Act comes into operation

(3) The provisions of section 9 (in so far it relates to paragraph (1) of Article 46 of the Constitution of the Democratic Socialist Republic of Sri Lanka) and the provisions of sections15, 28, 29 30 and 31 shall come into force upon the conclusion of the General Election held immediately after the date on which this Act comes into operation.]

Article 46 (1)  is about number of Ministers.  Hence, as per the 19^th Amendment – the President did not have any Executive powers beyond that of belief – to use Ministerial powers, including for Defence. This therefore allocates the Responsibility  for the Easter Bombings to Mr Ruwan Wijewardene – the State Minister of Defence.

My particular question is directed to Mr Sumanthiran – who is a law expert. Do you identify with Dr Welikala’s interpretations as if they are yours?