009-SLLR-SLLR-1985-V1-MALLIKARACHCHI-v.-SHIVA-PASUPATI-ATTORNEY-GENERAL.pdf
MALLIKARACHCHI
v.
SHIVA PASUPATI, ATTORNEY-GENERAL
SUPREME COURT.
SHARVANANDA, C. J.. WANASUNDERA, J , COLIN-THOME, J., RANASINGHE, J.AND ABDUL CADER, J.
S.C. APPLICATION No. 107/04.
NOVEMBER 19 AND 20. 1984.
Immunity of President – Proscription orders made under Emergency Regulations -, Infringement of fundamental rights under Article 14(1}. (a), (b), (c) and (d) and Article12 (2) of the Constitution-ls Attorney-General the proper party to be sued in view oflegal immunity of'the President ? – Articles 35 (1} and (3). 44 (2) and 126 of theConstitution-Rule 65 of the Supreme Court Rules, 1978.
The petitioner, a member of the Politbureau of the Jathika Vimukthi Peramuna whichwas a recognised political party, was elected a member of the Distict DevelopmentCouncil of Colombo having come forward as a candidate of his Party. He functioned assuch until the Jathika Vimukthi Peramuna was proscribed by the President on 30th July,1983. under the provisions of the Emergency Regulations made under the PublicSecurity Ordinance. The orders of proscription were continued by periodical publicationin the Gazette The petitioner alleged that the President was inspired by mala fides andaimed at eliminating opposition and that the petitioner and his fellow members wereprevented from contesting and putting forward candidates for election to Parliament forKundasale and Trincomalee electorates. The petitioner claimed that by the proscriptionorders there had been an infringement of his fundamental rights under Article14 (I) (a), (b). (c) and (d) and Article 12 (2) of the Constitution. He sought adeclaration that the proscription order published in the Gazette Extraordinary dated18.8.1984 is inoperative and that the Jathika Vimukthi Peramuna (J.V.P.) is entitled tofunction as a political party He cited Shiva Pasupati, Attorney-General, as respondent.
By Article .35 (1) of the Constitution the President during his tenure of office isabsolutely immune from legal proceedings in his official or private capacity. Theimmunity afforded by Article 35 (1) is personal to the President. But in respect of4 actions or omissions of the President in relation to the category of matters referred to in* /yticle 35 (3). that is. those which are referable to the exercise of any power pertainingto any subject or function assigned to the President or remaining in his charge underparagraph 2 of Article 44 proceedings have to be instituted against theAttorney-General.
The petitioner's complaint of illegality of the proscription order made by the Presidentdoes not qualify to be a proceeding in relation to the exercise of any power pertaining toany subject or function in the charge of the President under Article 44 (2) and hencethese proceedings could not have been instituted against the Attorney-General. The
Attorney-General is not competent to represent the President is proceedings notcovered by the proviso to Article 35 (3). Rule 65 of the Supreme Court Rules requiringthe Attorney-General to be cited as a respondent in proceedings for the violation ofFundamental Rights under Article 126 of the Constitution does not visualise theAttorney-General being made a sole party respondent to answer the allegations in thepetition.^
The application is not properly constituted and fails in limine.
Case referred to:
01 Satyapala v. The Attorney-General – S.C. Application No. 40/84 – S. C. Minutesof30.4.1984 and 11.5.1984.
APPLICATION for leave to proceed under Article 126 of the Constitution.•
Nimal Senanayake, P C. with Sanath Jayatilieke. Mrs. A. B. Dissanayaka. R. Jagindraninstructed by Saliya Mathew for petitioner.
K. M. M. B. Kulatunga. PC. with Sarath SHva, D.S.G., A. Kasturiaratchi. S.C. and T. G.Gunaratne. State Attorney, for the Attorney-General.
Cur. adv. vult.
February 11, 1985.
SHARVANANDA, C.J.
The petitioner is a member of the Jathika Vimukthi Peramuna,popularly referred to as the J.V.P. The petitioner was elected to theParty's Politbureau and was also elected to be a member of theDistrict Development Council of Colombo, as a candidate of that partyand functioned as such till the party was declared to be a proscribedorganisation. The J.V.P. was proscribed by order made by HisExcellency the President on 30th July, 1983, under the provisions ofthe Emergency Regulations under the Public Security Ordinance. Theorder of proscription of the Party has been continued to date by ordersof proscription periodically published in the Government Gazette.
The Petitioner in his petition submits that the J.V.P. is a leftist paTtyand that it has a fair popular support in the country and that on itselectoral performances, the party qualified as a recognised politicalparty under the laws relating* to Parliamentary Elections, and is apolitical party recognised by the Commissioner of Elections. Thepetitioner further states that His Excellency the President is the leaderof the United National Party, which is the Government political partyand that the President had not in making the order proscribing the
J.V.P. exercised his power bona fide, but had exercised the powervested in him by the relevant Emergency Regulations, mala fide andwithout any grounds. He complains that the proscription orders arebeing continued to disrupt the J.V.P. organisation and to ensure thatthe party would not gain further public support and that they areniferely colourable and made for the purpose of eliminating politicalopposition.
The petitioner further states that the petitioner and his fellowmembers have been prevented by the order proscribing the J.V.P.from selecting candidates for election to Parliament for Kundasale andTrincomalee electorates and they are deprived of the popular base andpolitical goodwill and of the opportunity 'of utilising the advantagesaccruing to recognised political parties.
The gravamen of the allegations of the petitioner is that all orders ofproscription of the J.V.P. made by His Excellency the President, in theexercise of the powers vested in him under the provisions of the PublicSecurity Ordinance are vitiated by colourable motives. The petitionerpleads that there has been an infringement of his fundamental rightsunder Article 14 (1) (a), (b). (c) and (d) and Article 12 (2) of theConstitution of the Democratic Socialist Republic of Sri Lanka by theorders proscribing the J.V.P. and that the resulting restrictions on theexercise of the petitioner's fundamental rights are not valid. In hispetition he prays inter alia for a declaration that the order published inthe Gazette Extraordinary dated 18th August, 1984, is inoperativeand for a declaration that the organisation called the J.V.P. is entitledto function es a legal political party
The petitioner has cited 'Shiva Pasupati', Attorney-General, as therespondent to his application.
As the allegations in the petition involved Constitutional questionsregarding the legal immunity of His Excellency the President, the courtinvited the Attorney-General to assist us in satisfying ourselves of theprima facie validity of the argument of counsel for the petitioner andthe tenability of the petition. The Solicitor-General appeared inresponse to the request of this court and submitted in limine, that thepetition fails on the ground that the Attorney-General was not theproper person to be cited as respondent to the petitioner's petitionand that there was no legal justification for the proceedings to beinstituted against the Attorney-General.
Article 35 of the Constitution which confers personal immunity onthe President provides as follows
35(1) “While any person holds office as President, no proceedingsshall be instituted or continued against him in any couryjrtribunal in respect of anything done or omitted to be doneby him either in his official or private capacity.'
'Where provision is made by law limiting the time withinwhich proceedings of any description may be broughtagainst any person, the period of time during which suchperson holds the office of President shall not be taken intoaccount in calculating any period of time prescribed by thatlaw."
“The immunity conferred by the provisions of paragraph {1)of this Article shall not apply to any proceedings in anycourt in relation to the exercise of any power pertaining toany subject or function assigned to the President orremaining in his charge under paragraph (2) of Article 44 orto proceedings in the Supreme Court under paragraph (2)of Article 129 or to proceedings in the Supreme Courtunder Article 130(a) relating to the election of thePresident:
Provided that any such proceedings in relation to the exercise ofany power pertaining to any such subject or function shall beinstituted against the Attorney-General.”
It is to be noted that the petitioner has not in his petition averred anyreason for making the Attorney-General the respondent ta hisapplication,
Article 35 (1) confers on the President during his tenure of office anabsolute immunity in legal proceedings in regard to his official acts oromissions and also in respect of his acts or omissions in his privatecapacity. The object of the article is to protect from harassment theperson holding the High Office of the Executive Head of the State inregard to his acts or omissions either in his official or private capacityduring his tenure of the office of President.
Such a provision as Article 35 (1) is not something unique to theConstitution of the Democratic Socialist Republic of Sri Lanka of1978. There was a similar provision in the Article 23 (1) of theConstitution of Sri Lanka of 1972. The corresponding provision in theMian Constitution is Article 361. The principle upon which theResident is endowed with this immunity is not based upon any ideathat, 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 highoffice should not be amenable to the jurisdiction of any but therepresentatives of the people, by whom he might be impeached andbe removed from office and that once he has ceased to hold office, hemay be held to account in proceedings in the ordinary court of law.
It is very necessary that when the Executive Head of the State isvested with paramount power and duties, he should be givenimmunity in the discharge of his functions.
Article 38 of our Constitution has made provision for the removal ofthe President for –
intentional violation of the Constitution ;
treason ;
bribery ;
misconduct or corruption, involving the abuse of the powerof the office ; and
any offence under any law, involving moral turpitude.
It will thus be seen that the President is not above the law. He is aperson elected by the People and holds office for a term of six years.The process of election ensures in the holder of the office correctconduct and full sense of responsibility for discharging properly thefunctions entrusted to him. It is therefore essential that specialimmunity must be conferred on the person holding such highexecutive office from being subject to legal process or legal action andfrom being harassed by frivolous actions. If such immunity is notconferred, not only the prestige, dignity and status of the high officewill be adversely affected but the smooth and efficient working of theGovernment of which he is the head will be impeded. That is therationale for the immunity cover afforded for the President's actions,both official and private.
The immunity afforded by Article 35 (1) is personal to the President.Article 35 (3) however provides that the said immunity shall not applyto any proceedings in court in relation to the exercise of any power
pertaining to any subject or function assigned to the President orremaining in his charge under paragraph (2) of Article 44 and that inrelation to the exercise of any power pertaining to any such subject orfunction, it is competent to institute any such proceeding against tlj?Attorney-General. Article 44 (1) empowers the President to appointMinisters of Cabinet and assign subjects and functions to suchMinisters. Article 44 (2) gives a discretion to the President to assign tohimself any subjects qr functions and vests him with the residualpower to remain in charge of any subject or function, not assigned toany Minister under the provisions of Article 44 (1). It follows that inrespect of actions or omissions of the President which are notreferable to the exercise of any power pertaining to any subject orfunction assigned to the President or remaining in his charge underparagraph 2 of Article 44, proceedings cannot be instituted againstthe Attorney-General.
Thus though the President is personally immune from legalproceedings in a court in respect of anything done or omitted to bedone by him in his official or private capacity, his acts or omissions inrelation to the category of matters referred to in Article 35 (3) can bequestioned in a court in proceedings instituted against theAttorney-General. Thus in proceedings in respect of such acts oromissions of the President the Attorney-General can properly be madethe defendant or respondent.
Article 35 (3) exhausts the instances in which proceedings may beinstituted against the AttorneyrGeneral in respect of the actions oromissions of the President in the exercise of any powers pertaining tosubject or functions assigned to the President or remaining in hischarge under that paragraph 2 of Article 44. It is only in respect ofthose acts or omissions of the President, that it is competent tpproceed against the Attorney-General. The Attorney-General is thusmade constitutionally liable to defend such acts or omissions but hisliability does not however extend to acts or omissions of the Presidentcommitted in the exercise of powers not covered by Article 44 (2) dfthe Constitution, but in the purported exercise of powers vested in himotherwise.
The order of proscription complained of by the President is, asstated by Ranasinghe, J._ in Satyapala v. The Attorney-General (1) -'not an order made by the President on the footing of anyassignment of subjects and functions in terms of the provisions ofArticle 44 of the Constitution. It is not one done as a result of orbecause of any such assignment of subjects and functions. It is, on
the other hand an order made by the President under and by virtue
of a power vested in him by an express provision of law. viz:
Regulation 68 of the Emergency Regulations, made under the^provisions of section 5 of the Public Security Ordinance (Cap. 40).'
The Public Security Ordinance which is deemed to be a law enactedby Parliament (see Article 155(1) of the Constitution of 1978)authorises the President to make emergency regulations and therelevent regulation 68 has been made in pursuance of the delegatedlegislative power. In the circumstances the present proceedingsstemming from the petitioner's complaint of illegality of theproscription order made by the President do not qualify to beproceedings referred to in the proviso to Article 35 viz., proceedings inrelation to the exercise of any power pertaining to any such subject orfunction in the charge of the President under paragraph (2) of Article44 and hence these proceedings could not have been institutedagainst the Attorney-General. The petitioner has erred in citing theAttorney-General as Respondent to his petition. The Attorney-Generalcannot be called upon to answer the allegations in the petitioner'sapplication. He does not represent the President in proceedings whichare not covered by the proviso to Article 35 (3), and is not competentor liable to answer the allegations in the petition. Counsel for thepetitioner sought to justify the citation of the Attorney-General asrespondent by reference to Rule 65 of the Supreme Court Rules whichprovides that in proceedings under Article 126 of the Constitution, theAttorney-General shall be cited as Respondent. This Rule 65 wasdesigned to meet the mandate of Article 134 which states that theAttorney-General shall be noticed and have the right to be heard in allptoceedings in the Supreme Court in the exercise of its jurisdiction.That Rule does not visualise the Attorney-General being made a soleparty respondent to answer the allegations in the petition. Sinceinfringement of fundamental right by executive or administrative actioni$ alleged, the Attorney-General is noticed only to watch the interestsof the State. He is not cited as the person who has committed thealleged infringement.
The application of the petitioner is not properly constituted andtherefore fails in limine. Leave to proceed is therefore refused and theapplication is dismissed on the ground that there is no justification forthe Attorney-General to be cited to respond to the allegations in thepetition and that the petitioner has erred in instituting these
proceedings against the Attorney-General. Since the objection raisedby the Solicitor-General is fatal to the maintainability of the presentapplication, it is not necessary to decide the wider question as to themaintainability of actions questioning the validity of the exercise of*powers by the President in matters not covered by Article 35 (3) ofthe Constitution.
colin-thom£, j. -1 agree.
RANASINGHE, J. – I agree
WANASUNDERA, J.
While 1 agree that the President enjoys immunity from being sued inthis matter, I am however of the view that having regard to theprovisions of Article 35 (3) of the Constitution, the Attorney-General isthe proper respondent to this petition.
ABDUL CADER, J.
The petitioner has instituted proceedings complaining that hisfundamental rights have been violated as a result of the proscription ofthe Janatha Vimukthi Peramuna by His Excellency the President.
'As the President enjoys immunity in terms of Article 35(1) of theConstitution he has made the Attorney-General the respondent incompliance with Article 35 (3), which permits such a procedure in'proceedings' in relation to the exercise of any power pertaining to anysubject or function assigned to the President or remaining in hischarge under paragraph (2) of Article 44 . . .
•
Article 44 (1) empowers the President to assign subjects andfunctions to Ministers.
Article 44 (2) empowers the President to assign to himself artysubject or function and remain in charge of any subject or function notassigned.
This Article therefore deals with subjects and functions that areassignable to Ministers.
The President derived his power to proscribe from EmergencyRegulations and this power is expressly conferred on the President,who alone can make an order of proscription.
82Sri Lanka Law Reports{1985] f Sri L. R.
Counsel for the petitioner did not submit that this power is anassignable power. In fact this question was not discussed at all.
Under these circumstances it appears to me that Article 35 (3)Jloes not apply.
I agree with the order made by the Chief Justice.
Leave to proceed refused.