In a democracy, presidential immunity should be clearly defined and limited

The office of the Sri Lankan President carries with it a wide variety of duties and responsibilities. He has many official and unofficial roles and as the chief executive he has to implement governmental policy and supervise the executive branch of government. He presides over Cabinet meetings as both the head of State and head of government. He is the commander-in-chief and exercises supreme command authority of the nation’s military forces and has the primary responsibility to preserve the constitutional and territorial integrity. As the chief executive his duties, privileges and responsibilities can vary greatly depending on the constitutional rules in relation to the country. 

 Powers granted to the president are unique in relation to other two branches of government. No other person in our system has such a huge responsibility as the President for national security. Today the President faces a host of issues, which were not faced by his predecessors. As a result, he has been compelled to broaden the reach of the office in direct response to specific crisis such as the COVID-19 pandemic now ravaging the country. There is hardly a domain of public life he can comfortably defer to the judgement of others. Under the present circumstances people have extraordinary expectations of the President.

Because of the singular importance of the President’s duties and functions it is important that he should be able to perform his duties and responsibilities without any hindrance. Any diversion of his energies by his concern with private lawsuits is bound to hinder effective functioning of the government. Even the mere possibility of any lawsuit being brought against him is bound to distract his attention from public duties. For this purpose the nations have designed the concept of presidential immunity within their constitutional framework. Immunity is freedom of suit or liability based on the person’s status and position. Immunity of the head of state is not unique to Sri Lanka.
Granting the President protection from lawsuits while in office acknowledges the importance of the office of the President in our Constitution. It is said that presidential immunity could be traced back to the maxim: The King can do no wrong.

The responsibilities and duties cast on the President as the sole repository of executive power are enormous. Because of the huge and exacting nature of his duties in countries where the presidential system prevails, the President has been granted immunity either in an absolute or qualified form in their Constitutions to enable him to discharge his responsibilities in an effective manner without any fear of attracting liability for any commission or omission of any official or private act done in the course of his duties. 

Chief Justice Sharavananda 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. 

“If such immunity is not conferred, not only the prestige, dignity and status of the high office will be adversely affected, but the smooth and efficient working of the government of which he is the head will be impeded. That is the rationale for the immunity cover afforded for the President’s actions, both official and private”.

The concept of presidential immunity became very much entrenched in absolute form in the scope and structure of 1978 Constitution. Article 35(1) of the Constitution stipulates among other things the substantive rule in relation to presidential immunity thus:

While any person holds office as President, no proceedings shall be instituted or continue against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.
It is implicit in the tenor of Article 35 (1) that immunity endures as long as the President holds office, and proceedings could be brought against him for any official or private act or omission done during his tenure once he ceases to hold office. For this purpose any pending actions against an incumbent President are suspended from the moment he takes office until the moment he ceases to hold office and the period of time during which he held office will not be reckoned for the purpose of determining the prescription of a claim.

The unbridled and unfettered immunity accorded to the President under Article 35 of the 1978 Constitution was subjected to attack by the legal fraternity and the media on the ground that it could lead to the abuse of power vested solely in the President and there was no way of judicially reviewing the President’s official and private acts.
In the case of Karunathilake vs Dayananda Dissanayake (1) (1999) 1 SLR 157 Justice Mark Fernando referring to Article 35(1) of the Constitution observed:

It is apparent from a careful scrutiny of cases discussed above in spite of the absolute form in which the concept of immunity had been formulated in the 1978 Constitution there had been a discernible inclination on the part of the judges to whittle down the untrammelled and unbridled effect of the immunity

“What is prohibited is the institution (or continuation) of proceedings against the President. Article 35 does not purport to prohibit the institution of proceedings against any other person where that is permissible under any other law. I hold that Article 35 only prohibits the institution (or continuation) of legal proceedings against the President while in office; it imposes no bar whatsoever on proceedings (a) against him when he is no longer in office, and (b) other persons at any time. Immunity is a shield for the doer, not for the act. If (Article 35) does not exclude judicial review of the lawfulness or propriety of an impugned act or omission, in appropriate proceedings against some other person who does not enjoy immunity from suit; as, for instance, a defendant or respondent who relies on an act done by the President, in order to justify his own conduct. It is the Respondents who rely on the Proclamation and Regulation, and the review thereof by this Court is not in any way in consistent with the prohibition in Article 35 on the institution of proceedings against the President.”

This is a consequence of the very nature of immunity as explained by Justice Mark Fernando.

The court in Wicremabandu Herath (1990) 2 SLR 348, struck down some parts of the emergency regulations on the ground it violated the petitioner’s fundamental rights. Similarly in Joseph Perera vs. Attorney General a five-judge bench of the court ruled that Regulation 28 of the Emergency (provision and powers) Regulation No. 6 0f 1986 was ultra vires the constitution, although there was no specific reference Article 35 of the Constitution.
In Sugathapala Mendis and another vs Chandrka Kumaranatunga (2008)2 SLR339 impugning certain acts of the President, the court observed “that the President being a creature of the constitution the President does not have the power to shield, protect or coerce the action of state officials or agencies, when such action is against the tents of the Constitution.” 

The court referring to certain observations made by Justice Fernando in Karunathilake Vs Dissanayake said Article 35 does not exclude judicial review of the lawfulness or propriety of an impugned act or omission, in appropriate proceedings against some other person who does not enjoy immunity from suit and the court held “Such a conclusion is unequivocal. To hold otherwise would suggest that the President is, in essence, above the law and beyond the reach of its restrictions. Such a monarchical/dictatorial position is at variance with (1) the Democratic Socialist Republic that the preamble of the constitution defines Sri Lanka to be and (2) the spirit implicit in the constitution that sovereignty reposes in the People and not in any single person”.

From the foregoing cases it is clear that though the immunity provisions in Article 35 of the 1978 Constitution were almost couched in absolute form it had not deterred the Supreme court from examining its constitutionality and the purview.

 It is apparent from a careful scrutiny of cases discussed above in spite of the absolute form in which the concept of immunity had been formulated in the 1978 Constitution there had been a discernible inclination on the part of the judges to whittle down the untrammelled and unbridled effect of the immunity.

Provisions relating to presidential immunity contained in the Article 35 of the 1978 Constitution were replaced by the 19th Amendment and in its place the following new Article was introduced. 

“While any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done by the President, either in his official or private capacity:

Provided that nothing in this paragraph shall be read and construed as restricting the right of any construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity:

Provided further that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President under Article 33(2)(g).”

The 19th Amendment marks an important event in Sri Lankan constitutional history. It reduces the scope and purview of presidential Immunity by permitting any citizen to challenge an executive action of the president by way of fundamental rights application under 126 of the Constitution. Although the 19th Amendment did not do away with presidential immunity completely it is an indubitably one of the salutary features of the 19th Constitution.
One of the landmark judgements delivered following the introduction of 19th Amendment was Rajavarothian Sampanthan and others Vs Attorney General. (Sc FR Application No.351/2018). It was a judgement of seven judges of the Supreme Court in respect of several fundamental applications filed consequent to the dissolution of parliament in October 2018.

Dealing with the inalienable right of every citizen to invoke the fundamental rights jurisdiction the court held that “the inalienable right of every citizen of our country to invoke the fundamental rights jurisdiction of the Supreme Court is a cornerstone of the sovereignty of the people which is the Grundnorm of our constitution”. The court in upholding its constitutional duty observed it could not permit the emasculation of the proviso to Article 35 (1) it had to vigorously protect the totality of its jurisdiction for the protection of fundamental rights conferred by the constitution.  

The proposed 20th Amendment to the Constitution which has now become law has restored full and unfettered legal immunity to the President and removed the provisions relating to the institution of legal proceedings in respect of presidential executive action by way of fundamental right application. Under the 20th Amendment the resident now enjoys complete legal immunity from suits.

It cannot be denied that certain degree of presidential immunity from suit while in office is necessary and warranted to the effective functioning of the government. But there is no justification for a blanket and untrammelled immunity in modern constitutionalism.

There should be constitutional checks and balances that could restrain excesses and abuses that could result from unbridled presidential immunity. In a democracy, presidential immunity should be clearly defined and limited to ensure accountability as unbridled immunity can lead to a culture of impunity. Immunity should be restricted to those acts that are in bona fide exercise of presidential powers. It should be stated the unbridled immunity is more in consonance with ceremonial or titular heads of state than with a president elected by the people.