The need for a new Constitution

* Covid-19 continues to dominate headlines

* 20A now legally effective but inadequate

* Focus shifts from CC to Article 35(1)

by C.A.Chandraprema- November 1, 2020

As in March/April this year, Covid-19 has once again eclipsed everything else with a fresh outbreak more virulent than the previous one. As this issue hits the news stands, a curfew prevails over the Western Province. On a daily basis, anything between 250 to 500 or more new patients are being discovered. The quarantine centers are full and new systems are being introduced by requiring suspected cases to quarantine at home. The health authorities are keeping the public informed about what is happening. As fresh cases are confirmed, news alerts are going out even late at night obviously in the hope that the more awareness there is of the spread of the disease, the more precautions the people will take.

The encouraging signs that have emerged is that the Brandix cluster which started off the present wave of infections, now appears to be receding and hardly finds mention anymore. Now the center stage has been taken by the Peliyagoda fish market cluster. The high hundreds that were reported initially seem to have come down to mid-hundreds and as the days go by will obviously come down further as in the case of the Brandix cluster. Even though the entire Western Province is under curfew, even while the curfew was in force, the lock downs imposed on several villages in the Kalutara district were lifted because no more fresh cases were reported from those areas. Lock downs are being imposed on limited areas as and when necessary. The signs are that it may take the month of November to bring the latest outbreak under control. In the middle of all this, one feather in the cap for the government was the holding of the 2020 A/L examination.

Everbody was full of praise for the Elections Commission for the manner in which the parliamentary election of 2020 was conducted despite the Covid-19 situation. Similar praise is due to the Education Ministry and the health authorities for the manner in which the A/L examination was carried out without a hitch. As this is being written the examinations is now nearing the end with subjects taken only by a few students now being held. The very fact that nobody hears anything about the still ongoing A/L examination in the news is the measure of its success. Most people in this country have decided by now that life has to go on despite Covid-19 and things like elections and examinations and even marriages which cannot be postponed beyond a point have to be held in whatever way possible. That the A/L examination was held even in the midst of the most virulent Covid-19 outbreak, is undoubtedly a feather in the cap for the new Minister of Education Prof. G.L.Peiris and the education ministry.

 

There was an element of risk in deciding to hold the A/L examination despite unprecedentedly high daily infection rates. The government took the call, and has delivered. If the government manages to wrestle the present outbreak down as they did the previous ones, that’s going to put this country in the international spotlight. No country can remain Covid-19 free unless it’s a hermit kingdom like North Korea or Bhutan which has very little contact with the outside world. Sri Lanka in contrast is well connected to the outside world. When the number of patients in this country goes down, the repatriation of expatriate workers begins and every planeload brings dozens of Covid-19 patients into the country. So it’s not the presence of patients in the country that’s at issue but how well the pandemic is kept in check. This country has so far been able to overcome all outbreaks since March and the signs are that they will succeed once again. Compared to what has been going on in other countries, even the highest daily rate of over 900 patients counts for nothing. If this number looks large to us, that’s because we were so successful in containing the spread of the disease. Despite the virulence of the present outbreak, GMOA President Dr Anuruddha Padeniya has gone on record as stating that patients have been reported only from 28 of the 350 Health Officer’s Divisions in the country, and from 68 of the 490 Police Divisions. This also explains why curfew has been imposed only on one out of nine provinces. So the picture is not as gloomy as one would imagine.

 

Constitutional Damoclean sword

 

With the speaker appending his signature to the 20A ensuring that the country keeps running without paralysis of the system is not just the responsibility of the executive branch of the government. Even after the 20A, absolutely ANYTHING done or omitted by the President can be the subject of litigation before the Supreme Court – the sole exception being the declaration of war and peace which cannot be the subject of litigation before the SC. Under Clause 5 of the 20A, if the President appoints a judge of the Supreme Court or even the Chief Justice in this manner, under Article 35(1) it could be called in question in the Supreme Court itself. Some readers may recall that in 1997, when then President Chandrika Kumaratunga who had the full panoply of presidential powers including immunity from suit, appointed Ms. Shirani Bandaranayake to the Supreme Court, there was a generalized revolt within the legal fraternity and several fundamental rights suits were filed against that appointment in the Supreme Court. The list of lawyers who appeared in this case against Shirani Bandaranayake read like a who’s who of the Sri Lankan legal fraternity of that time.

 

The case was heard by a seven member bench headed by Justice Mark Fernando. Two separate judgments were delivered by the seven judges both refusing leave to proceed with the case, with Justice Fernando holding that the President in exercising the power conferred by Article 107 (appointment of Supreme Court and Appeal Court judges) had a “sole discretion” which means that the eventual act of appointment is performed by the President and concludes the process of selection. The other group of judges held that the appointment in question is a matter which falls within the purview of the President and that Article 35(1) provides that while any person holds office as President, no proceedings shall be instituted or continued against him in any Court or Tribunal in respect of anything done or omitted to be done by him either in his official capacity, or private capacity and this provides blanket immunity to him from having proceedings instituted or continued against him in any Court in

respect of any act or omission on his part.

 

Thus it was the then Article 35(1) which enabled President Chandrika Kumaratunga to appoint Ms. Shirani Bandaranayake to the Supreme Court. Today however, the old Article 35(1) lies defanged and any and every appointment made by the President can technically be challenged in courts, the only thing standing between the President and a flood of vexatious litigation being the power conferred on the Supreme Court to grant or withhold leave to proceed.

 

The SC’s 19A burden

 

However the Supreme Court itself is not insulated against a flood of politically motivated litigation which will overwhelm the court. No court can tell the public not to bring cases to it and whether the cases are frivolous or vexatious can be decided only by examining them. Arguments can always be found to make a case look important. The only thing that will act as a restraint on vexatious litigation against acts of the President will be the concern that if the SC refuses leave to proceed, the petitioners will end up with egg on their faces. One has to acknowledge that this will act as a powerful curb on vexatious litigation, and the SC may also start looking askance at litigants who appear once too often in courts with obviously frivolous and insubstantial arguments against everything that the President does. Such litigants may even lay themselves open to contempt of court charges. The danger however is that interested parties could always find third parties to put forward for such purposes.

 

Trying to illustrate this point by the use of Ms. Shirani Bandaranayake’s appointment in 1997 is perhaps a bad example to take because there would be so many people who would feel that it would have been better for everyone concerned if the Supreme Court had been able to shoot down Shirani Bandaranayake’s appointment when it was first made! Indeed given the way things finally turned out, it would have been better for her as well. However, it must be noted that it’s the duty of the President to make suitable appointments. If the President makes the wrong choices, he or she will have to face the consequences at the hustings. It’s a moot point whether good decisions by a President can be guaranteed by allowing presidential decisions to be challenged in courts and expecting the courts to keep the President on the straight and narrow.

 

Today the protection provided to the executive by old Article 35(1) as it stood before the 19A when 122 MPs in Parliament filed a parallel action in the Court of Appeal seeking a Writ of Quo Warranto Against Prime Minister Mahinda Rajapaksa and 48 others functioning as Cabinet Ministers, State Ministers and Deputy Ministers, the Court of Appeal issued an interim order restraining Prime Minister Rajapaksa from functioning in that position and all Cabinet Ministers and Deputy Ministers from functioning in their positions until the final hearing and determination of the suit. This would give us an idea of what may happen when the Executive does not have immunity from suit. When a matter comes up before courts, the courts naturally have to order that things be put on hold until they decide on the matter. It’s easy to see why the Ceylon Constitution Order in Council of 1946, the First Republican Constitution of 1972, the Second Republican Constitution of 1978 and the Indian Constitution all had provisions conferring immunity from suit on the Executive. When immunity from suit is conferred on a nominal Head of the Executive it provides cover for the actual wielders of executive power as well as we see in India.