A judgement for democracy

The judgement of the three judge bench comprising Chief Justice G. P. S. de Silva and Justices Mark Fernando and D. P. S. Gunasekera directing the Commissioner of Elections to fix a date or dates for holding of elections to five provincial councils within three months is a historic judgement for more reasons than one.

The most important fallout of the judgement on the public mind was that it took away much of the presumptions associated with the judicial immunity conferred on an incumbent president. The general assumption in the public mind - and also of the officials- was that orders of the executive president cannot be questioned by officials or even in a court of law and whatever the presidential order may be,those carrying out such orders were immune from any form of judicial punishment.

The judges held that the regulation issued by President Kumaratunga calling for postponement of elections to provincial councils was not a valid exercise of power under Section 5 of the Public Security Ordinance and that it was not an Emergency Regulation. It had the character of an order purporting to suspend notice lawfully issued under the Election Act, they held.

The Court held that the immunity conferred on the president under Article 35 of the Constitution neither transforms an unlawful act into a lawful one nor renders it one which shall not be questioned in any court. It does not exclude judicial review of the lawfulness or propriety of an impugned act or omission, in appropriate proceedings some other person who does not enjoy immunity from legal suit. A person cannot rely on acts done by the president in order to justify his own conduct, they held. The Commissioner of Elections, Mr. Dayananda Dissanayake and 12 others were found to have infringed the fundamental right to freedom of expression of the petitioners Messrs. Varuna Karunatilleke and W. M. Sunanda Deshapriya of the Free Media Movement and granted Rs. 30,000 as costs payable by the state.

The Court had also held that ' Immunity is for the doer not the act' and went on to say that immunity applies only for the person who holds the office of President and does not continue for his or her private acts thereafter.

Most public servants tend to pass the buck and say that they were following orders of their superiors. This was excuse given by war criminals as well. Under normal law an officer does not enjoy immunity for illegal acts he or she commits. This decision makes it clear that even presidential orders too have to come within the ambit of the law and officials carrying out orders which have no legal basis are liable to face the consequences.

On the issue of the postponement of elections, the judgement reads: 'Should the first respondent have insisted on the poll being held on 28.8.98? While I appreciate the difficult situation in which he was, nevertheless it is necessary to remember that the Constitution assures him independence, so that he may fearlessly insist on due compliance with the law in regard to all aspects of elections even, if necessary, by instituting appropriate legal proceedings in order to obtain judicial orders. But the material available to court indicates that he made no effort to ascertain the legal position or have recourse to legal remedies.'

We make no comment on the above observations other than to say that these words from the Supreme Court are sufficient guidance for public servants in critical situations to follow.

The other importance decision made is that the freedom to vote is a fundamental right of the citizen coming under the umbrella of the freedom of expression. While the right to franchise in presidential, parliamentary elections and referenda is enshrined in the Constitution, this judgement went further to hold that the right to vote in provincial councils election was also a fundamental right .The court said: 'The silent and secret expression of a citizen's preference as between one candidate and another by casting his vote is no less an exercise of the freedom of speech and an expression than the most eloquent speech from a political platform. To hold otherwise is to undermine the very foundations of the Constitution'.

At a time when there is much chaos in the country and there is widespread feeling that Sri Lankan democracy is at stake, this judgement will undoubtedly be a shot in the arm for Sri Lankan democracy. Since the abandonment of the Soulbury Constitution where the public service was protected by an independent public service commission, public servants have become vassals of politicians in power. The press which was taken over by the state are today the lapdogs of politicians in power. The independent media has been attempting to defend the democratic rights of the people albeit without much success. The judiciary has maintained its sturdy independence and this judgement once again is a vindication of the independence of the Sri Lankan judicary.