Im­mu­nity not to Pres­i­dent’s ac­tions: Kanag Iswaran PC

Says only on his per­son

Daily Mirror (Sri Lanka) - - FRONT PAGE - BY S.S. SELVANAYAGAM

Pres­i­dent’s Coun­sel K. Kanag Iswaran, yesterday coun­ter­ing the ar­gu­ments by the re­spon­dents and the in­ter­vernient pe­ti­tion­ers, un­der­lined the fact that the im­mu­nity con­ferred on the Ex­ec­u­tive Pres­i­dent was only on his per­son and not on his acts or ac­tions.

Kanag Iswaran PC ap­pear­ing for TNA Leader R. Sam­pan­than said this be­fore the seven-judge bench of the Supreme Court which took up for hear­ing the fun­da­men­tal rights pe­ti­tions against the dis­so­lu­tion of Par­lia­ment by Pres­i­dent.

Ten fun­da­men­tal rights pe­ti­tions against the dis­so­lu­tion of Par­lia­ment came up be­fore the Bench com­pris­ing Chief Jus­tice Nalin Per­era, Jus­tices Buwaneka Aluwi­hare, Sisira J de Abrew, Priyan­tha Jayawar­dena, Prasanna S. Jayawar­dena, Vi­jith K. Malal­goda and Murdu Fer­nando.

Kanag Iswaran PC said he did not pro­pose to deal with the jun­gle of ar­gu­ments of sin­gle in­stances put for­ward by the var­i­ous re­spon­dents, on ac­count of time con­straints.

He said Pres­i­dent’s Coun­sel Sanjeewa Jayawar­dene and the other Coun­sel of a sim­i­lar per­sua­sion had sought to sub­mit to Court their in­ter­pre­ta­tion of the rel­e­vant con­sti­tu­tional pro­vi­sions on the ba­sis of the Sin­hala text of the Con­sti­tu­tion.

Coun­sel said not be­ing com­pe­tent in that lan­guage, he had re­quested Pres­i­dent’s Coun­sel Thi­lak Mara­pana and the other Coun­sel for the pe­ti­tion­ers, to deal with that as­pect. He in­formed Court that they as­sured him that the Sin­hala ver­sion was in no way dif­fer­ent to the English ver­sion and that he knew for a fact that the Tamil ver­sion was no dif­fer­ent ei­ther.

He said there­fore, he was re­spond­ing to only the At­tor­ney Gen­eral in re­spect of his sub­mis­sions, prin­ci­pally on the ques­tion of the ju­ris­dic­tion of the Supreme Court to hear and de­ter­mine his pe­ti­tion on the two grounds urged by the At­tor­ney Gen­eral, namely,

“The pro­vi­sions of Ar­ti­cle 38 (2) pro­vide a spe­cific mech­a­nism ‘for the Supreme Court to ex­er­cise ju­ris­dic­tion over al­le­ga­tions of, in­ten­tional vi­o­la­tions of the Con­sti­tu­tion, mis­con­duct or abuse of power by the Pres­i­dent;

“Dis­so­lu­tion of Par­lia­ment by the Pres­i­dent, does not con­sti­tute ‘ex­ec­u­tive or ad­min­is­tra­tive ac­tion’, fall­ing within the purview of Ar­ti­cle 126 of the Con­sti­tu­tion.

He said the ob­jec­tion premised on Ar­ti­cle 38 (2) was con­cerned and that it was clear that the said ob­jec­tion was based on the sup­po­si­tion that Ar­ti­cle 38 (2) op­er­ates as an ouster of Ar­ti­cles 17 and 126 vis-à-vis the Fun­da­men­tal Rights Ju­ris­dic­tion of the Supreme Court.

Coun­sel said one sec­tion of the Con­sti­tu­tion could not oust an­other sec­tion of the Con­sti­tu­tion.

The Con­sti­tu­tional ju­ris­dic­tion of the Supreme Court to grant re­lief for the in­fringe­ment of Fun­da­men­tal Rights by the Ex­ec­u­tive or Ad­min­is­tra­tive ac­tion could not be ousted in the ab­sence of a Con­sti­tu­tion­ally or valid dero­ga­tion from that ju­ris­dic­tion he pin­pointed.

He said Ex fa­cie the Con­sti­tu­tion such an ouster can­not be validly as­serted.

He brought to cog­nizance that a to­tal ouster is found in the in­ter­pre­ta­tion sec­tion of the Con­sti­tu­tion, namely, Ar­ti­cle 154J (2) – Pub­lic Se­cu­rity.

He said the in­ter­pre­ta­tion sec­tion reads as,“a Procla­ma­tion un­der the Pub­lic Se­cu­rity Or­di­nance or the law for the time be­ing re­lat­ing to pub­lic se­cu­rity, shall be con­clu­sive for all pur­poses and shall not be ques­tioned in any Court, and no Court or Tri­bunal shall in­quire into, or pro­nounce on, or in any man­ner call in ques­tion, such Procla­ma­tion, the grounds for the mak­ing thereof, or the ex­is­tence of those grounds or any di­rec­tion given un­der this Ar­ti­cle.”

He sub­mit­ted that the Ar­ti­cle 170, defin­ing a ju­di­cial of­fi­cer as “‘ju­di­cial of­fi­cer’ means any per­son who holds of­fice as a Judge of the Supreme Court or a Judge of the Court of Ap­peal; any Judge of the High Court or any Judge, pre­sid­ing of­fi­cer or mem­ber of any other Court of First In­stance, tri­bunal or in­sti­tu­tion cre­ated and es­tab­lished for the ad­min­is­tra­tion of Jus­tice or for the ad­ju­di­ca­tion of any labour or other dis­pute but does not in­clude a per­son who per­forms ar­bi­trary func­tions or a pub­lic of­fi­cer whose prin­ci­pal duty or du­ties is or are not the per­for­mance of func­tions of a ju­di­cial na­ture. No court or tri­bunal or in­sti­tu­tion shall have ju­ris­dic­tion to de­ter­mine the ques­tion whether a per­son is a ju­di­cial of­fi­cer within the mean­ing of the Con­sti­tu­tion but such ques­tion shall be de­ter­mined by the Ju­di­cial Ser­vice Com­mis­sion whose de­ci­sion thereon shall be fi­nal and con­clu­sive. No act of such per­son or pro­ceed­ing held be­fore such per­son, prior to such de­ter­mi­na­tion, shall be, deemed to be in­valid by rea­son of such de­ter­mi­na­tion.”

Kanag Iswaran PC said the above ouster clauses seek to even ex­clude the Fun­da­men­tal Rights ju­ris­dic­tion of the Supreme Court and main­tained that there­fore,ar­ti­cle 38 is no ouster at all.

He said the pe­ti­tioner is well within his rights to have in­voked Ar­ti­cles 17 and 126 of the Con­sti­tu­tion, be­cause it is an ac­knowl­edged prin­ci­ple of law that there is no jus­ti­fi­ca­tion in law for hold­ing that only one of the avail­able reme­dies can be availed of and that the other con­se­quently stands ex­tin­guished, nor can it be con­tended that the ag­grieved party be con­fined to only one rem­edy.

He fur­ther said that pas­sion­ate pre­sen­ta­tions were made on the ques­tion of the sovereignty of the Peo­ple and the fran­chise of the Peo­ple and the obli­ga­tion of the Pres­i­dent to heed that and for the Supreme Court to take note of that fact.

He men­tioned that in pass­ing that, the sovereignty of the Peo­ple and who the de­pos­i­to­ries of that are is to be seen in Ar­ti­cle 4 and that the Ar­ti­cle 4 (a) pro­vides that the sovereign leg­isla­tive power of the Peo­ple is in the Par­lia­ment and that the Ar­ti­cle 4 (b) pro­vides that the sovereign ex­ec­u­tive power of the Peo­ple is in the Pres­i­dent.

He main­tained that there­fore un­der the Con­sti­tu­tion that the Pres­i­dent can­not in­ter­fere with the leg­is­la­ture ex­cept as strictly pro­vided by the Con­sti­tu­tion.

The dis­so­lu­tion of the leg­is­la­ture must there­fore strictly be in terms of the Con­sti­tu­tion and the Pres­i­dent is not a Monarch, he too is a crea­ture of the Con­sti­tu­tion. It is set­tled law that the of­fi­cial acts of the Pres­i­dent con­sti­tute ‘ex­ec­u­tive’ ac­tions, he said.

He sub­mit­ted that the con­cept of ‘ex­ec­u­tive and ad­min­is­tra­tive’ ac­tion is much wider than ex­ec­u­tive power.

He stated the Pe­ti­tion­ers in­voked a right given to them un­der Ar­ti­cle 17 read with Ar­ti­cle 126 read to­gether with the pro­viso to Ar­ti­cle 35 (1).

In terms of the pro­viso ‘any­thing done or omit­ted to be done by the Pres­i­dent, in his of­fi­cial ca­pac­ity’ are in fact ‘ex­ec­u­tive or ad­min­is­tra­tive’ acts in terms of Ar­ti­cle 17 and, there­fore, the ref­er­ence to Ar­ti­cle 126 is made in the said pro­viso, he stressed.

The con­tention of the At­tor­ney Gen­eral that the Pres­i­dent’s act is not ‘ex­ec­u­tive or ad­min­is­tra­tive’ ac­tion is in terms of the Con­sti­tu­tion wholly un­ten­able, he con­tended.

The is­sue of dis­so­lu­tion which the Supreme Court is called upon to de­cide is not jus­ti­cia­ble be­cause it is a po­lit­i­cal ques­tion, he claimed.

He rec­ol­lected that an­other in­ter­est­ing, if not in­trigu­ing, sub­mis­sion was about a ‘leg­isla­tive driven process’ and a ‘ex­ec­u­tive driven process’.

This de­scrip­tion, cu­ri­ously, lays em­pha­sis only on the driver and for­gets the ve­hi­cle, which is Ar­ti­cle 70 (1), he said.

With­out the ve­hi­cle, the driver can­not move. Whether leg­isla­tive driven or ex­ec­u­tive driven, you need to have a Procla­ma­tion, he stated.

The func­tionar­ies of the three wings, namely, the leg­is­la­ture, the ex­ec­u­tive and the ju­di­ciary, de­rive their au­thor­ity and ju­ris­dic­tion from the Con­sti­tu­tion. The Con­sti­tu­tion is the fun­da­men­tal doc­u­ment that pro­vides for con­sti­tu­tion­al­ism, con­sti­tu­tional gov­er­nance and also sets out moral­ity, norms and val­ues which are in­hered in var­i­ous Ar­ti­cles and some­times de­ci­pher­able from the con­sti­tu­tional si­lence, he said.

Its in­her­ent dy­namism makes it or­ganic and there­fore the con­cept of con­sti­tu­tional sovereignty is sacro­sanct. It is ex­tremely sa­cred as the au­thor­i­ties get their pow­ers from the Con­sti­tu­tion and nowhere else. It is the source, that is the supremacy of the Con­sti­tu­tion, he high­lighted.

He re­minded that pas­sion­ate speeches had been made, mostly po­lit­i­cal, warn­ing the Supreme Court of the im­pend­ing dan­gers and the like if the dis­so­lu­tion is not up­held. It went as far as call­ing the chal­lenge to the dis­so­lu­tion as ter­ror­ism, he said. He re­call the words of Dr. Ambed­kar: “I feel that the con­sti­tu­tion is work­able; it is flex­i­ble and it is strong enough to hold the coun­try to­gether both in peace time and in war time. In­deed if I may say so, if things go wrong un­der the new Con­sti­tu­tion the rea­son will not be that we had a bad Con­sti­tu­tion. What we will have to say is that Man was vile.”

The pe­ti­tions were filed by Kabir Hashim and Ak­ila Vi­raj Kariyawasam of UNP, Lal Wi­je­nayeke of United Left Front, CPA, Mem­ber of the Elec­tion Com­mis­sion Prof. Rat­na­jee­van. H. Hoole, At­tor­ney-at-law G.C.T. Per­era, Sri Lanka Mus­lim Congress, All Cey­lon Makkal Congress, Mano Gane­san MP.

K.kanag Iswaran PC, Thi­lak Mara­pana PC, Dr Jayam­pathi Wick­re­maratne PC, M.a.su­man­thi­ran PC. Vi­ran Corea, Ikram Mo­hamed PC, J.c.welia­muna PC, Ronald Per­era PC, His­bul­lah Hi­jaz and Suren Fer­nando ap­peared for the pe­ti­tion­ers.

Gamini Mara­pane PC with Nalin Mara­pane, San­jeeva Jayawar­dane PC and Ali Sabry PC ap­peared for the in­ter­ve­nient pe­ti­tion­ers op­pos­ing the main pe­ti­tions.

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