Doctrine of immunity in Emperor’s Clothes

By I. P. C. MENDIS

Ranil Wickremesinghe has emerged as the chief “dramatis personae” in the current constitutional deadlock drama. Whether the stars had foretold the event is not known. He was never a man in a hurry.  He was cool as a cucumber when he was sacked as Prime Minister by the latter and seeking the help of the apex Court regained the position. He has chosen to confront the Supreme Court in what appears to be a battle of wits as to who has the whip-hand – the Executive President or the Supreme Court. The SC ruling in respect of the release of funds for the local government (LG) elections has opened the door for many a fundamental issue, not the least being the question of immunity and that of effectiveness and priority for SC decisions. The presidential circular does not list election expenditure as an essential item.  Indeed, a direct confrontation prima facie.

Elections Commission

One does not need much grey matter to realise that as far as the government is concerned, it does not have an iota of interest in conducting the relevant election. The pointers came in very clear terms through the “machinations” of the Government Printer, the IGP and the Secretary to the Treasury.  And in this time-consuming and futile exercise, the EC through its own volition reduced itself casting away its so-called independence to be nothing more than a pen-pusher – a far cry from the Deshapriya’s lion roar of yesteryear asking violators of election laws to be shot at the head.  Fair enough  for the EC to write to  the Secretary to the Treasury (the custodian of state coffers)  but when it was clear that there was a questionable delay, it had  a duty and responsibility to bring the issue to the notice of court to which it is bound by ruling to hold the elections. The Secretary to the Treasury is bound by the Constitution to perform his duties under the direction and control of his Minister and has taken an oath to uphold the Constitution. He has no leeway to pass the buck or to treat a SC ruling as subordinate to any other source.  Nothing of the sort has happened before.  The Minister of Finance may hold the office of President substantively but that does not ‘ipso facto’ imply that he enjoys the immunity he enjoys in his substantive office while performing duties in areas other than those in Presidential office. If   not anything else, this episode has the potential to become a dangerous precedent. It has to be immediately resolved once and for all.

Immunity of Parliamentary Proceedings

The question arises as to whether the immunity prescribed is limited to parliamentary proceedings. There is also the relevant issue of “absolute”and “qualified” immunity which has to be examined and argued with due reference to authorities such as Erskine May, the SL. Constitution and other such Constitutions. And who else is qualified to do it but the relevant professions, including the legal fraternity?  The question arises whether the immunity is limited to parliamentary proceedings. If so, any action initiated or proceeded with by the Hon. Speaker in entertaining a motion of “Privilege” and any follow-up action thereon in tabling it, etc,. could be construed as “contempt of court”    We have had the sad and unfortunate episode of Shirani Bandaranaike, which nobody wants to repeat and make SC judges  the hunting ground  of  politicians of one hue or another.  No-one wants our judiciary to be reduced to being a plaything of politicians.  The judiciary expects unequivocally and requires no repetition of the treatment of Shirani B or Neville Samarakoon.

Legal Fraternity and the BASL

The BASL has proudly felicitated President Wickremasinghe on completion of 50 years at the Bar (yet not in practice).  The country would not certainly seek to deny him the accolade. Yet,  the BASL and the “Black-coated” gentry in particular,  who thought it opportune to invade the courts of justice in their hundreds unsolicited to defend the Aragalaya  demonstrators without a fee almost exercising undue influence vicariously in the course of justice,  and the frenzy  in which they  took to the streets demanding the ouster of Mohan Pieris, was conspicuous by its absence in strength vocally and otherwise except through a tame letter.