Gajalakshmi Paramasivam

http://austms.blogspot.com.au/

 

05 January   2021

 

 

 

DE FACTO SYSTEM AND JUDICIAL IMMUNITY

 

 

As per my understanding, de facto system recognises belief based relationships which often are not structured enough to be measured by law. The successful practice of de facto system eventually leads to being recognized through the law. I appreciated this more and more through the Prescription ordinance as applied in Sri Lanka.

 

In the parts of Sri Lanka where I lived, de facto relationships were not heard of. But when living in Thunaivi during the latter part of the ethnic war and after, I learnt that it was common in those parts of Northern Sri Lanka. A good proportion of armed rebels came from those parts. It is quite possible that this was also the case with JVP rebels.

 

In his Daily Mirror article ‘In a democracy, presidential immunity should be clearly defined and limitedJustice Chandradasa Nanayakkara states:

 

[Chief Justice Sharvananda in the case of Mallikarachchi vs. Shiva Pasupathy (1985) 1 SLR 74 explaining the rationale for the doctrine of immunity observed thus “it is very necessary that when the Executive Head of the State is  vested with paramount power and duties, he should be given immunity in the discharge of his function”: Dealing with the Article further he observed “the rationale of this principle is that persons occupying such a high office should not be amenable to the jurisdiction of any but the representative of the people, by whom he might be impeached and be removed from office, and that once he has ceased to hold office, he may be held to account in proceedings in the ordinary courts of law”. Analysing further he said the immunity of head of State is not unique to Sri Lanka and declared that the efficient functioning of the executive required the president to be immune from judicial process. ]

One could connect to the mind of the Honorable Justice Sharvananda  through his following declarations:

[He said: "Human failure of a few individuals cannot be equated to the failure of a system. The contribution of the judicial system towards the evolution of an orderly society is a fact of history. Rule of law is essentially linked with the judicial system.

"The court symbolises the rule of law and nothing should be done to erode the respect which people have for the institution. "A judge should not worry over criticism. Quest for certitude should not be substituted for the quest of justice. Law making is an inherent and inevitable part of the judicial process."]

The fight for Justice is often based on Common belief which is the foundation on which certitude is developed.  In Judicial decisions, the belief in the law is as important as ‘facts’ that construct the problem. If the mind of the judge is deep in belief – the measure used would be taller than the consolidated ‘fact’ of the matter and v.v. Hence the quest for certitude needs to be shorter than the Measure of Law.

The risk in democracy is that majority rule is likely to elect leaders whose investment in law does not produce a high measure. Parliamentary privilege facilitates free expressions of belief which are exponential in power. When an elected President is afforded immunity from prosecution, it limits the whole to her/his level of belief.

Today’s emails included one that had the following message:

[Tamil Rights Group Offers Legal Opinion to the Government of Canada Against the Appointment of Air Chief Marshal Sumangala Dias as Sri Lanka’s High Commissioner to Canada

Markham, Canada – A week ago, the Tamil Rights Group (TRG) wrote to the Prime Minister of Canada as well as the Foreign Minister and the Attorney General of Canada, registering its serious concerns about the potential appointment of Air Chief Marshal Sumangala Dias as Sri Lanka’s next envoy to Canada.

Based on a legal opinion prepared by one of Canada’s leading human rights lawyers, David Matas, C.M. and assisted by Sarah Teich, TRG requested that the Government of Canada notify the Government of Sri Lanka that Air Marshal Dias would be unacceptable and unwelcome, persona non grata. TRG has also further requested the Government of Canada to initiate an investigation to determine whether further restrictive measures are warranted against him pursuant to the Magnitsky Act. The legal opinion makes a case for criminal command responsibility by Air Marshal Dias for war crimes, crimes against humanity, and genocide, as well as his violation of the standards of the Commonwealth Charter, especially as the civil war in Sri Lanka drew to a close in May 2009.]

 

The above action could be considered to be interference in the affairs of Sri Lanka or when based on belief that the Tamil community in Sri Lanka is entitled to be protected by the belief based measures used by the Global  Tamil community as a whole, where justice has been denied in Sri Lanka, due to lack of belief based connections between the government and the community.

 

The shortfalls in Sri Lankan sovereignty is likely to demote the standards of civilization to lower levels. That is the risk in allowing immunity to an Executive President.

 

Honorable Justice Sharvananda  presents his reasoning structure as follows:

 

[The principle upon which the Resident is endowed with this immunity is not based upon any idea that, as in the case of the King of Great Britain, he can do no wrong. The rationale of this principle is that persons occupying such a high office should not be amenable to the jurisdiction of any but the representatives of the people, by whom he might be impeached and be removed from office and that once he has ceased to hold office, he may be held to account in proceedings in the ordinary court of law]

 

Immunity needs to be balanced with the provisions to impeach the President. If the will is lacking in the People, our belief will be rewarded as Energy which works the system confidentially – mind to mind.

 

Most of us achieve this through our regular work outside politics and the courts. They become universal powers we do not draw benefits. That is sweeter than the benefits and is shared exponentially.  Hence they are recognized as Divine powers.