CA
Public Interest Law Foundation and another v
Attorney-General and another (Srioavan, J.)
169
PUBLIC INTEREST LAW FOUNDATION AND ANOTHERv
ATTORNEY-GENERAL AND ANOTHERCOURT OF APPEALUDALAGAMA , J. (P/CA) ANDSRiPAVAN, J.
C.A. 1396/03OCTOBER 28, ANDNOVEMBER 18, 2003
Writ of mandamus to compel the President to appoint members to the ElectionCommission – Constitution – 17th Amendment, Articles 35 and 41 B -Recommendations of the Constitutional Council – Has the President discretionnot to appoint the recommended person? Is an act or omission of thePresident justiciable? – Blanket immunity under Article 35.
Held:
Article 35 gives a blanket immunity to the President from having pro-ceedings instituted or continued against her in any court in respectof anything done or omitted to be done in her official or private capac-ity except in the circumstances specified in Article 35(3).
The present application does not fall within the ambit of Article 35(3).
The power to appoint a Chairperson and the Members of the ElectionCommission is expressly conferred on the President who alone canmake such appointments in terms of Article 41B of the 17thAmendment.
The petitioners have erred in citing the Attorney-General as the 1strespondent.
APPLICATION for a writ of mandamus.
Cases referred to:
1. Mallikarachchi v Shiva Pasupathi – (1985) 1 Sri LR 74 at 78.
Edward Francis William de Silva, President's Counsel v ShiraniBandaranayake – (1997) 1 Sri LR 92 at 99.
Kumaranatunga v Jayakody- (1985) 2 Sri LR 124 at 135.
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[2004] 1 Sri L.R
Karunatilake and another v Dayananda Dissanayake, Commissionerof Elections and others – (1999) 1 Sri LR 157 at 177.
Victor Ivan and others v Hon. Sarath N Silva and others (2001) -Sri LR 309 at 327
J.C. Weliamuna with S. Jayawardena and S. Senanayake for petitioners.
P. A. Ratnayake, P.C., Additional Solicitor General with A. Gnanathasan,Deputy Solicitor-General and M.R. Ameen, State Counsel, for 1st and 3rd to13th respondents.
Cur.adv.vult
December 17, 2003SRIPAVAN, J.
The petitioners invoked the jurisdiction of this court seeking a writ 01of mandamus compelling the second respondent (President of theDemocratic Socialist Republic of Sri Lanka) to appoint the fourteenthrespondent as the Chairman and the fifteenth to the eighteenthrespondents as the members of the Election Commission.
In view of the constitutional importance of the questions involved,without permitting the application to be supported ex parte, this courton 4th September 2003 directed that notice be issued on the first andthe third to the thirteenth respondents so that they be heard in oppo-sition before notice is issued as prayed for in paragraph (a) of the 10prayer to the petition. The learned Additional Solicitor-Generalappeared and assisted court in the consideration of the matter.
The basis of the petitioners’ challenge is that consequent to theseventeenth amendment to the Constitution, the President is left withno. discretion to appoint the Chairperson and the members of theElection Commission once the recommendations of the ConstitutionalCouncil is received. In this context, Counsel for the petitioners con-tended that the seventeenth amendment in Art. 41B removed the dis-cretion of the President and as such the said amendment did notintend to give the President unfettered and unrestrained powers to 20appoint the Election Commission or not to appoint same. Accordingly,Counsel argued that the basic features contained in Art. 41B of theseventeenth amendment to the Constitution would be nullified if Art.
35 is invoked.
CA
Public Interest Law Foundation and another v
Attorney-General and another (Sripavan, J.)
171
Art. 35 of the Constitution which confers personal immunity on thePresident provides as follows:-
35 (1) While any person holds office as President, no proceedingsshall be instituted or continued against him in any court or tri-bunal in respect of anything done or omitted to be done byhim either in his official or private capacity.
Where provision is made by law limiting the time within which
proceedings of any description may be brought against anyperson, the period of time during which such person holds theoffice of President shall not be taken into account in calculat-ing any period of time prescribed by that law.
The immunity conferred by the provisions of paragraph (1) of
this Article shall not apply to any proceedings in any court inrelation to the exercise of any power pertaining to any subjector function assigned to the President or remaining in hischarge under paragraph (2) of Article 44 or to proceedings inthe Supreme Court under paragraph (2) of Article 129 or toproceedings in the Supreme Court under Article 130 (a) [relat-■ ing to the election of the President or the validity of the refer-endum or to proceedings in the Court of Appeal under Article144 or in Supreme Court, relating to the election of a Memberof Parliament.]
Provided that any such proceedings in relation to the exerciseof any power pertaining to any such subject or function shallbe instituted against the Attorney-General.
The reason for granting immunity to the President is succinctlystated by Sharvananda, C.J. in Mallikarachchi v Shiva Pasupati C) at78 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 processof election ensures in the holder of the office correct conduct andfull sense of responsibility for discharging properly the functionsentrusted to him. It is therefore essential that special immunitymust be conferred on the person holding such high executiveoffice from being subject to legal process or legal action and frombeing harassed by frivolous actions. If such immunity is not con-
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ferred, not only the prestige, dignity and status of the high officewill be adversely affected but the smooth and efficient working ofthe Government of which he is the head will be impeded. That isthe rationale for the immunity cover afforded for the President’sactions, both official and private.”
In Edward Francis William Silva, President’s Counsel v ShiraniBandaranayake (2) at 99 the court held “We are of the view, therefore,that having regard to Article 35 of the Constitution, an act or omissionof the President is not justiciable in a Court of law, more-so where thesaid act or omission is being questioned in proceedings where the 70President is not a party and in law could not have been made aparty.”
No doubt, in certain situations the acts or omissions of thePresident can be questioned in a court instituted against the Attorney-General in relation to matters referred to in Art. 35(3). Art.35 has beeninterpreted authoritatively by the Supreme Court in various cases. Art.
41 (B) contained in the seventeenth amendment to the Constitutionwill have to be read subject to Art. 35 in order to ensure a smooth andharmonious working of the Constitution. The cardinal rule of interpre-tation is that words should be read in their ordinary, natural and gram- 80matical meaning in construing words in a constitutional enactment.Thus, the words used in the Constitution must be understood in thesense most obvious to the common understanding. “Where the lan-guage of the Constitution is plain and unambiguous, effect has to begiven to it and a court cannot cut down the scope or amplitude of suchprovision for the reason that notionally it cannot harmonise with theideal of the Constitution.” – per Sharvananda, C.J. in Kumaranatungav JayakodyW at 135.
In Karunathilaka and another v Dayananda Dissanayake,Commissioner of Elections and others at 177 Fernando, J. 90observed thus
“I hold that Article 35 only prohibits the institution (or continuation)of legal proceedings against the President while in office; it impos-es no bar whatsoever on proceedings (a) against him when he isno longer in office, and (b) other persons at any time. That is aconsequence of the very nature of immunity; immunity is a shieldfor the doer, not for the act.”
CA
Public Interest Law Foundation and another v
Attorney-General and another (Sripavan, J.)
173
Thus, it would appear having regard to Art. 35 of the Constitution,an act or omission of the President is not justiciable in a court of lawduring the tenure of her office. Wadugodapitiya, J. in the case of Victor 100Ivan and others v Hon. Sarath N.Silva and others <5) at 327 interpret-ing Art. 35 laid down the objective and the intention of the framers ofthe Constitution in the following words
“ I am constrained to say that, in fact, what the petitioners are ask-ing this court to do, is in effect to amend by judicial action, Article35 of the Constitution, by ruling that the immunity enjoyed by thePresident is not immunity at all. This, of course, is not within thepower of this Court to do. In the guise of judicial decisions and rul-ings, judges cannot and will not seek to usurp the functions of theLegislature, especially where the Constitution itself is concerned." 110
Following the judicial decisions quoted above, I hold that Art. 35gives a blanket immunity to the President from having proceedingsinstituted or continued against her in any court in respect of anythingdone or omitted to be done in her official or private capacity, except incircumstances specified in Art. 35(3). The present application doesnot fall within the ambit of Art. <35(3). As observed by Sharvananda,
C.J. in Mallikarachchi’s case “the Attorney-General cannot be calledupon to answer the allegations in the petitioner’s application. He doesnot represent the President in proceedings which are not covered bythe proviso to Act. 35 (3), and is not competent or liable to answer the 120allegations in the petition.” The power to appoint a-Chairperson andthe members of the Election Commission is expressly conferred onthe President who alone can make such appointments in terms of Art.
41B of the Constitution as introduced by the seventeenth amendment.Thus, I hold that the petitioners have erred in citing the Attorney-General as the first respondent to this application. The application istherefore not properly constituted and fails on that ground as well.
For the reasons stated above, notice on the respondents isrefused.
UDALAGAMA, J. (P/CA) – I agree
Notice refused.
