Legal Services and Laws of Sri Lanka


SLR-1985 Vol.1-P74

SLR - 1985 Vol.1, Page No - 74

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. 107/84.

NOVEMBER 19 AND 20, 1984.

Immunity of President -Proscription orders made under EmergencyRegulations-Infringementoffundamentalrightsunder
Article 14 (1), (a), (b), (c) and (d) and Article 12 (2) of the Constitution-Is Attorney-General the proper party to besued
in view of legal immunity of the President ? - Articles 35 (1) and (3), 44 (2) and 126 of theConstitution-Rule65ofthe
Supreme Court Rules, 1978.

The petitioner, a member of the Politbureau of the Jathika Vimukthi Peramuna which wasarecognisedpoliticalparty,was
elected a member :of the Distict Development Council of ColombohavingcomeforwardasacandidateofhisParty.He
functioned as such until the Jathika Vimukthi Peramuna was proscribedbythePresidenton30thJuly,1983,underthe
provisions of the Emergency Regulations made under the Public Security Ordinance. The orders of proscriptionwerecontinued
by periodical publication in the Gazette. The petitioner alleged that the President was inspired by mala fides andaimedat
eliminating opposition and that the petitioner and his fellow members were preventedfromcontestingandputtingforward
candidates for election to ParliamentforKundasaleandTrincomaleeelectorates.Thepetitionerclaimedthatby-the
proscription orders there had been an infringement of his fundamental rights under Article 1'4 (1) (a),(b),.(c)and(d)
and Article 12 (2) of the Constitution. 'He 'sought a declaration that theproscriptionorderpublished`intheGazette
Extraordinary dated 18.8.1984: is. inoperative and that the Jathika Vimukthi Peramuna (J.V.P.) is entitled to functionasa
political party. He cited Shiva Pasupati, Attorney-General, as respondent.

Held-
By Article 35 (1) of the Constitution the President during his tenure of office is absolutely immune fromlegalproceedings
in his official or private capacity. The immunity afforded by Article 35 (1) is personal to the President. But in respectof
actions or omissions of the President in relation to the category of matters referred to in Article 35 (3),thatis,those
which are referable to the exercise of any power -pertaining to any, subject or,functionassignedto,thePresidentor
remaining in his, charge under paragraph 2 of Article 44 proceedings have to be instituted against the Attorney-General.
The petitioner's complaint of illegality of the proscription order madebythePresidentdoesnotqualifyi'6bea
proceeding in relation to the exercise of any power pertaining to any subject or function inthechargeofthePresident
under Article 44 (2) and hence these proceedings could not have been instituted against the Attorney-General.TheAttorney-
General is not competent to represent the President is proceedings not. covered by the proviso to Article 35 (3). Rule 65of
the Supreme Court Rules requiring the Attorney-General to.. be cited as a respondent inproceedingsfortheviolationof
Fundamental Rights udder Article 126 of. the Constitution does not visualise the Attorney-General beingmadeasoleparty
respondent to answer the allegations in the .petition.'
The application is not properly constituted and fails in limine.

Case referred to
1) Satyapala v, The Attorney-General - S.C Application No. 40/84 - S. C - Minutes of 30.4.1984 and 1-1.5.1984.
APPLICATION for leave to proceed under Article 126 of the Constitution.
Nimal Senanayake, P.C. with Sanath Jayatilleke, Mrs. A. B. Dissanayake, R. Jagindran
instructed by Saliya Mathew for petitioner.
K. M. M. 8: Kulatunga, P. C. with Sarath Silva, D. S. G., A. Kasturiaratchi, S. C. and T. G.
Gunaratne, State Attorney, for the Attorney-General.

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 petitionerwaselected
to the Party's Politbureau and was also elected to be amemberoftheDistrictDevelopmentCouncilofColombo,asa
candidate of that party and functioned as such till the party was declared to be a proscribed organisation.TheJ.V.P.was
proscribed by order made by His Excellency thePresidenton30thJuly,1983,undertheprovisionsoftheEmergency
Regulations under the Public Security Ordinance. The order of proscription of the Party has been continued to date byorders
of proscription' periodically published in the Government Gazette.

The Petitioner in his petition submits that the J.V.P. is a leftist party and that it hasafairpopularsupportinthe
country and that on its electoral performances, the party qualified as a recognised political party under thelawsrelating
to Parliamentary Elections, and 'is a political party recognised by the Commissioner ofElections.Thepetitionerfurther
states that His Excellency the President is the leader of the United National Party, which is the Government politicalparty
and that the President had not in making the order proscribing the J.V.P. exercised his power bona fide,buthadexercised
the power vested in him by the relevant Emergency Regulationsmala fide and withoutanygrounds.Hecomplainsthatthe
proscription orders are being continued to disrupt the J.V.P. organisation and toensurethatthepartywouldnotgain
further public support and that they are merely colourable and made for the purpose of eliminating political opposition.
The petitioner further states that the petitioner and his fellow members have been prevented bytheorderproscribingthe
J.V.P. from selecting candidates for election to Parliament for Kundasale and Trincomalee electorates and theyaredeprived
of the popular base and political goodwill and oftheopportunityofutilisingtheadvantagesaccruingtorecognised
political parties.

The gravamen of the allegations of the petitioner is that all orders of proscription of the J.V.P.madebyHisExcellency
the President, in the exercise of the powers vested in himundertheprovisionsofthePublicSecurityOrdinanceare
vitiated by colourable motives. The petitioner pleads that there has been an infringement ofhisfundamentalrightsunder
Article 14 (1) (a), (b), (c) and (d) and Article 12 (2) of the Constitution oftheDemocraticSocialistRepublicofSri
Lanka by the orders proscribing the J.V.P.andthattheresultingrestrictionsontheexerciseofthepetitioner's
fundamental rights are not valid. In his petition he prays inter alia for a declarationthattheorderpublishedinthe
Gazette Extraordinary dated 18th August, 1984, is inoperative and for' a declaration that the organisation called theJ.V.P.
is entitled to function as a legal political party.
The petitioner has cited "Shiva Pasupati", Attorney-General, as the respondent to his application.

As the allegations in the petition involved Constitutional questions regarding thelegalimmunityofHisExcellencythe
President, the court invited. the Attorney-General to assist us in satisfying ourselves of the prima facievalidityofthe
argument of counsel for the petitioner and the tenability -of the petition:The Solicitor-General appearedinresponseto
the request of this court and submitted in limine, "that the petition fails on the ground that, the Attorney-General wasnot
the proper person to be, cited as respondent to the: petitioner's petition and that there was no legal justification forthe
proceedings to be instituted against the Attorney-General.

Article 35 of the Constitution which confers personal immunity, on the President provides as follows :
35 (1) "While any person holds office as President, no proceedings shall be instituted or continued against him in anycourt
or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity."
(2) "Where provision is made by law limiting the` time within which proceedings of any descriptionmaybebroughtagainst
any person, the period of time during which such person holds the office of President shall notbetakenintoaccountin
calculating any period of time prescribed by that law."
(3) "The immunity conferred by the provisions of paragraph (1) of this Article shall not applytoanyproceedingsinany
court in relation to the exercise of any power pertaining to any subject or function assigned to the Presidentorremaining
in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129or
to proceedings in the Supreme Court under Article 130 (a) relating to the election of the President.

Provided that any such proceedings in relation to the exercise of any power pertaining to any such subject or functionshall
be instituted against the Attorney-General."
It is to be noted that the petitioner has not in hispetitionaverredanyreasonformakingtheAttorney-Generalthe
respondent to his application.
Article 35 (1) confers on the President during his tenure of office an absolute immunity in legal proceedingsinregardto
his official acts or omissions and also in respect of his acts or omissions inhisprivatecapacity.Theobjectofthe
article is to protect- from harassment the person holding the High Office of the Executive Head of theStateinregardto
his acts or omissions either in his official or private capacity during his tenure of the office of President.

Such a provision as Article 35 (1) is not something unique to the Constitution of the Democratic SocialistRepublicofSri
Lanka of 1978. There was a similar provision intheArticle23(1)oftheConstitutionofSriLankaof1972.The
corresponding provision in the Indian Constitution is Article 361. The principle upon which thePresidentisendowedwith
this immunity is not based upon any idea that, as in the case of theKingofGreatBritain,hecandonowrong.The
rationale of this principle is that persons occupying such a high office should not be amenable to thejurisdictionofany
but the representatives of the people, by whom he might be impeached and be removed from office and that once hehasceased
to hold office, he may be held to account in proceedings in the ordinary court of law.

It is very necessary that when the Executive Head of the State is vested with paramount power and duties, he should begiven
immunity in the discharge of his functions.
Article 38 of our Constitution has made provision for the removal of the President for -
(i) intentional violation of the Constitution
(ii) treason
(iii) bribery
(iv) misconduct or corruption, involving the abuse of the power of the office and
(v) any offence under any law, involving moral turpitude.
It will thus be seen that the President is not above the law. He is a person elected by the People andholdsofficefora
term of six years. The process of electionensuresintheholderoftheofficecorrectconductandfullsenseof
responsibility for discharging properly the functions entrusted to him. It is therefore essential that special immunitymust
be conferred on the person holding such high executive office from being subject to legal process or legalactionandfrom
being harassed by frivolous actions. If such immunity is not conferred, not only the prestige,dignityandstatusofthe
high office will be adversely affected but the smooth and efficient working of the Government of which he istheheadwill
be impeded. That is the rationale 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 saidimmunity
shall not apply to any proceedings in court in relation to the exercise of any power pertaining to anysubjectorfunction
assigned to the President, or remaining in his charge under paragraph (2) of Article 44 and that in relation to theexercise
of any power, pertaining to any such subject or function, it is competenttoinstituteanysuchproceedingagainstthe
Attorney-General. Article 44 (1) empowers the President to appoint Ministers of Cabinet and assign subjects and functionsto
such Ministers. Article 44 (2) gives a discretion to the President to assign to himself any subjects or functionsandvests
him with the residual power to remain in charge ofanysubjectorfunction,notassignedtoanyMinisterunderthe
provisions of Article 44 (1). It follows that in respect of actions or omissions of the President which are not referableto
the exercise of any power pertaining to any subject or function assigned to the President or remaining inhischargeunder
paragraph 2 of Article 44, proceedings cannot be instituted against the Attorney-General.

Thus though the President is personally immune from legal proceedings in a court in respect of anything doneoromittedto
be done by him in his official or private capacity, his acts or omissions in relation to the category of matters referredto
in Article 35 (3) can be questioned in court in proceedings instituted against the Attorney-General. Thus inproceedingsin
respect of such acts or omissions of the President the Attorney-General can properly be-made the defendant or respondent.

Article 35 (3) exhausts the instances in which proceedings may be instituted against the Attorney-General in respectofthe
actions or omissions of the President in the exercise of any powers pertainingtosubjectorfunctionsassignedtothe
President or remaining in his charge under that paragraph 2 of Article 44. It is only in respect of those actsoromissions
of the President, that itiscompetenttoproceedagainsttheAttorney-General.TheAttorney-Generalisthusmade
constitutionally liable to defend such acts or omissions but his liability does not however extend to actsoromissionsof
the President committed in the exercise of powers not covered by Article 44 (2) of the Constitution,butinthepurported
exercise of powers vested in him otherwise.
The order of proscription complained of by the President is, as stated byRanasinghe,J.inSatyapalav.TheAttorney-
General (1) - "not an order made by the President on the footing of any assignment of subjects and functions in terms ofthe
provisions of Article 44 of the Constitution. It is not one done as aresultoforbecauseofanysuchassignmentof
subjects and functions. It is, on the other hand an order made by the President under and by virtue of a power vested inhim
by an express provision of law, viz Regulation 68 of the Emergency Regulations, made under the provisionsofsection5of
the Public Security Ordinance (Cap. 40)."

The Public Security Ordinance which is deemed to be a law enacted by Parliament (see Article 155 (1) of theConstitutionof
1978) authorises the President to make emergency regulations and the relevent regulation 68 has beenmadeinpursuanceof
the delegated legislative power. In the circumstances the present proceedings stemming fromthepetitioner'scomplaintof
illegality of the proscription order made by the President do not qualify to be proceedings referred tointheprovisoto
Article 35 viz., proceedings in relation to the exercise of any power pertaining to anysuchsubjectorfunctioninthe
charge of the President under paragraph (2) of Article 44 and hence these proceedings could not have been institutedagainst
the Attorney-General. The petitioner has erred in citing the Attorney-General as Respondent to hispetition.TheAttorney-
General cannot be called upon to answer the allegations in the petitioner's application. He does not represent thePresident
in proceedings which are not covered by the proviso 1to Article 35 (3),andisnotcompetentorliabletoanswerthe
allegations in the petition. Counsel for the petitioner sought to justify the citation of the Attorney-General asrespondent
by reference to Rule 65 of the Supreme Court Rules which provides that in proceedings under Article 126 of theConstitution,
the Attorney-General shall be cited as Respondent.. This Rule 65 was designed tomeetthemandateofArticle134which
states that the Attorney-General shall be noticed and have the right to be heard in all proceedings in the SupremeCourtin
the exercise of its jurisdiction. That Rule does not visualise the Attorney-General being made a soleparty-respondentto
answer the allegations in the petition. Since infringement of fundamental right byexecutiveoradministrativeactionis
alleged, the Attorney-General is noticed only to watch the interests of the State. He is not citedasthepersonwhohas
committed the alleged infringement.
The application of the petitioner is not properly constituted and therefore fails in limine. Leave toproceedistherefore
refused and the application is dismissed on the ground that there is no justification for the Attorney-Generaltobecited
to respond to the allegations in the petition and that the petitioner has erred in instituting these proceedings againstthe
Attorney-General. Since the objection raised by theSolicitor-Generalisfataltothemaintainabilityofthepresent
application, it is. not necessary to decide the wider question as to the maintainability of actions questioning thevalidity
of the exercise of powers by the President in matters not covered by Article 35 (3) of the Constitution.
COLIN-THOME, J. - I agree.
RANASINGHE, J. - I agree.
WANASUNDERA, J.
While I agree that the President enjoys immunity from being sued in this matter, I am however of the view that havingregard
to the provisions of Article 35 (3) of the Constitution, the Attorney-General is the proper respondent to this petition.

ABDUL CADER, J.
The petitioner has instituted proceedings complaining that his fundamental rights have beenviolatedasaresultofthe
proscription of the Janatha Vimukthi Peramuna by His Excellency the President.
'As the President enjoys immunity in terms of Article 35(1)oftheConstitutionhehasmadetheAttorney-Generalthe
respondent in compliance with Article 35 (3), which permits such a procedure in 'proceedings' in relation to the exerciseof
any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph(2)of
Article 44 . . . '.
Article 44 (1) empowers the President to assign subjects and functions to Ministers.
Article 44 (2) empowers the President to assign to himself any subject or function and remain in chargeofanysubjector
function not assigned.
This Article therefore deals with subjects and functions that are assignable to Ministers.
The President derived his power to proscribe from EmergencyRegulationsandthispowerisexpresslyconferredonthe
President, who alone can make an order of proscription. Counsel for the petitioner did notsubmitthatthispowerisan
assignable power. In fact this question was not discussed at all.
Under these circumstances it appears to me that Article 35 (3) does not apply.
I agree with the order made by the Chief Justice.
Leave to proceed refused.


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