News Features

Compiled by Javed Mansoor

Limiting the powers of President

The Court, after taking into account all aspects of the matter, was of the view that what was to take place in the President’s official residence on that day was an official function. It was further noted that Article 35 of the Constitution provides only for the personal immunity of the President from proceedings in any court of law and that too only during his or her tenure of office. But nothing prevents a court of law from examining the President’s actions

By Dharmapala Senaratne
In no other democratic country in the world, perhaps have so much of powers been concentrated on one individual, as in the case of the President of Sri Lanka. When our President expelled three Ministers with just one stroke of the pen recently, this theme once again became the talk of the town and the dust has hardly settled.

However, ever since the powers of the President was provided for in the 1978 Constitution, there have been quite a few judgments delivered by our Supreme Court indicating restrictions and limitations on presidential powers. The case of M.N.D. Perera vs. Balapatabendi, Secretary to the President, reported in 1 SLR (2005) is just one of them.
One will recall that at the December 05, 2001 general election, the country witnessed a situation which we had never experienced before. There was an unprecedented case of the President belonging to one political party, while the Premier came from another political party.

The President at the time, Chandrika Bandaranaike Kumaratunga, appointed Ranil Wickremesinghe as Premier as she was mandated to do under Article 43 (3). She further fixed his swearing in for December 9, 2001 to be conducted at the President’s House.

The media persons of both sectors, print and electronic, thereupon informed the Director of Information, particulars of their identities and of others who were due to accompany them in order to cover the event, as they were routinely wont to do.
When they visited the President’s House in due time for the purpose, they were subjected to a thorough body search together with their equipment by the officers of the Presidential Security Division. However, those from the TNL TV channel and the Ravaya and the Sunday Leader newspapers were told by the DIG in charge of the PSD that the President had specifically instructed him not to allow them in.

They were thus prevented from being present at the event. But strangely, those from other media institutions were not so prevented. The reason why the President took personal interest only in these three institutions, and on what basis they were picked and chosen was never explained.

The news editor of the TNL thereupon went before the Supreme Court complaining of violation of his fundamental rights guaranteed under Article 12 (1), 12 (2), and 14 (1) (a) of the Constitution. At the hearing of this application, the State strenuously argued that firstly, swearing in of the Premier was not a public function and secondly, the President’s House was not a public place and therefore there was no unequal treatment of the applicant as he alleged.
It was submitted on behalf of the State that the venue was the official residence of the Head of State and the public had no right of access to it without invitation and permission of access.

But the Court while not agreeing with the argument held that the petitioner’s rights had in fact been infringed by administrative and executive action in these circumstances. Accordingly, he was granted compensation and costs.
The Court, after taking into account all aspects of the matter, was of the view that what was to take place in the President’s official residence on that day was an official function. It was further noted that Article 35 of the Constitution provides only for the personal immunity of the President from proceedings in any court of law and that too only during his or her tenure of office. But nothing prevents a court of law from examining the President’s actions.

It is to be noted that Wigneswaran J. delivered the judgment with Thilakawardene J. concurring and Dissanayake J. dissenting. It was observed that ‘Rights of millions in this country should not be compromised at the altar of personal preferences and prejudices of the Executive.’

The Court further held as follows:
“The very reason trotted out by the learned State Counsel to prevent the public from attending a function at the President’s House is the reason which favours media coverage of such event. The public and the media are entitled to know the events as they occur at the swearing-in ceremony of their Prime Minister. The journalists cover such events to impart such information through their media.

“Decisions with regard to the personnel to be allowed to enter, the number to be accommodated, and the area where they had to be seated and so on should have been professionally decided not on the pique and punctilio of the President.”
There is no doubt that this decision will go down in the legal history of our country as a landmark judgment.
(The writer is an Attorney-at-Law)


International trade dispute settlement

The session ‘Dispute Settlement at the conference ‘The Doha Development Agenda and the Future of the Multilateral Trading System’ organised by the Sri Lanka Law College in collaboration with the Department of Commerce and the World Trade Organisation, which is scheduled to be held from July 30 to August 1, 2007 in Colombo will examine a number of important dispute settlement issues confronting the multilateral trading system.

International trade disputes need to be resolved expeditiously. Some of these disputes involve the interpretation of the terms of the contract between the parties. The buyer may have defaulted payment; the seller may have dispatched goods that were not in an acceptable condition or the goods may have been delivered late. Such disputes have to be settled in domestic courts or some other alternative mode of dispute resolution such as mediation, conciliation or arbitration.

Disputes could also arise due to the actions of states. Although private parties are free to determine the rules that govern the transaction there are some areas where the actions of the state can impinge on the private transaction. A country may prohibit goods being imported from a specified country. Alternatively, a country may discriminate goods imported from a particular country by applying a higher customs duty. An internal tax may be imposed on imported goods while similar locally produced goods may not be subject to such internal tax.

The members of the World Trade Organisation (WTO) have agreed upon the rules, which will govern international trade in so far as the actions of states are concerned. The most-favoured nation principle, national treatment, tariff bindings are some of the agreed rules. Yet, there are instances where these rules are observed in the breach by the members of the WTO. The WTO has a dispute settlement mechanism to resolve such disputes. The question then is can private parties have recourse to this system? Is it an effective system for the resolution of international trade disputes? Has the system helped developing countries to resolve trade disputes? What are the modifications that are required to make the system more effective?

Dr. Arthur Appleton, Partner, Appleton Luff, Prof. David Gantz, Professor of Law, University of Arizona and Janak De Silva, Senior State Counsel will present papers while Justice Saleem Marsoof, Judge of the Supreme Court will chair the session. The opening ceremony will be on July 30 at Waters Edge while the plenary sessions will be on July 31 and August 1 at Cinnamon Grand. The conference web site is www.wtoconference-srilanka.org


Reader’s View

IIGEP, AG and the anti Buddhist criminal law

S. Costa, Attorney at Law, President of the Kandy Litigant’s Association has written to The Nation stating;
“To us, it would seem the learned Attorney-General’s admission of the “absence of legislation for the protection of victims of crime and witnesses is affecting … implementing a fully-fledged victim and witnesses assistance and protection programme,” is at the bottom of the differences that have arisen between him and Chief Justice Bhagwati. For both of them, we have the highest respect.

But we have the profoundest contempt for our criminal law, the nature of which we believe is at the bottom of the above differences.
To put it at its simplest that everyone, even a four-legged, should understand – it asserts an accused person has a Right to Silence.
This directly contradicts - and pro tanto condemns itself for insanity - a fundamental tenet of Buddhism, that a wrong-doer ‘must confess.’

Hence, the four percent rate of convictions in our courts – we think the rate so officially quoted should be corrected to 1.6 percent. Philosophic opinion is that when anyone finds his system is not working, he should be prepared to at once dump his whole cartload of beliefs concerning it.

Personally, the undersigned has never been able to reconcile himself to the logical absurdity and semantic gibberish of the Presumption of Innocence. For the good of not only their own immediate work, but the very salvation of the world from rampant crime, we humbly implore of Chief Justice Bhagwati and the learned Attorney-General to call for and make a ‘joint study’ of the only document which approached to a comprehensive inquiry into the conundrum of the disastrous criminal law anywhere in the world, namely, the report of the Presidential Commission on Law and Order chaired by Retired Supreme Court Justice, Hon. S.W.B. Wadugodapitiya, P.C.

The report was presented to the former President about three years ago - who seems to have crassly pigeon-holed it.