are some more equal!
Whether Constitutional Council members should be granted legal
immunity on decisions made in pursuance of duty was an issue which
surfaced briefly amid the flurry of political activity of last month.
As soon as a case was made that the members of the independent Constitutional
Council (which was created under the 17th amendment) should enjoy
legal immunity, it appeared that the political lobby hijacked it.
of political opinion brought into the assumption that the Constitutional
Council should be independent in character, which therefore meant
that its members should not be challenged in court, for any of the
functions they performed as council members.
As far as arguments
go, this seemed to be couched in terms that made it appealing to
many people. A connection seems to have been made between independence
(of the Constitutional Council) and immunity for its members (from
legal challenge for actions under its office.)
The crux of
the argument seemed to be that Constitutional Council will be responsible
for appointing judges to the Supreme Court, which then made it absurd
that these judges be empowered to take up cases against the very
people who appointed them.
there was a case made for ouster clauses in the constitution itself
which granted immunity from suit for the members of the Constitutional
Council for any of the actions which were carried out in the course
of discharging their duties.
clauses are not present in any of the constitutional documents that
have provision for similar independent Constitutional Councils.
The Nepal constitution for instance has virtually been the forerunner
of the Constitutional Council arrangement, which has been made into
law here. But the Nepali constitution makes no immunity from suit
for any of the council's members.
Commission appoints the Supreme Court in Nepal - and its Members
are composed of retired Supreme Court judges etc., as the case is
in the Sri Lankan instance. But, there is absolutely no ouster clause
granting legal immunity for members of the Nepali Judicial Council.
lecturer in constitutional law, University of Colombo, says that
it shows a certain level of arrogance among the members of the Constitutional
Council to ask for immunity after they have been appointed. He makes
the point that the members who were appointed should if at all,
have made their views clear before they were appointed - and therefore
declined to accept any appointment if they felt that their powers
were to be traduced by the Supreme Court.
He also finds
that the whole case for legal immunity became a non- issue soon
after it was mooted because political parties across the board,
and all shades of public opinion seemed to accept the argument that
there is a case for such immunity. "The whole thing became
a non issue,'' he says, "which is amazing, considering the
fact that any ouster clauses in the constitution which grants immunity
for anybody goes against the principle that there is no unfettered
discretionary power vested in anyone.''
that the entire basis for legal immunity for Members of the Constitutional
Council was that the legislation, which pertains to the 17th Amendment,
was not entirely perfect. For instance, it appears that there was
a fear being entertained that clauses to the effect that certain
appointments made by the Constitutional Council should consider
'ethnicity', would lead to various legal wrangling over the definition
of the world 'ethnicity'. The response to these perceived weaknesses
in the draft of the law which became the 17th Amendment, was that
"the law is bad - - therefore the Members of the Council should
be granted immunity from suit for their actions.''
seems to have to be patently the wrong response. If the law is bad,
there should be no difficulty in clarifying it - -and amending the
Amendment where necessary with an eye on assuaging the anxieties
of any Members of the Council.
the response has been that the law is bad - -and therefore that
there should be immunity from suit for those who function under
legal experts feel that there is a question of supremacy here, wherein
it is felt by the Constitutional Council appointees that they appoint
the Supreme Court which makes it untenable that their own actions
be subject to Supreme Court scrutiny. This question of supremacy
seems also to be attenuated by in the circumstances in which the
Constitutional Council was created, which were those in which it
was felt that the judiciary was not independent as it should have
If the judiciary
was to be made fully independent by the instrument of the Constitutional
Councils, it could be argued that its effect will be nullified if
the Constitutional Councils are in some way made subordinate to
Supreme Court and its power of scrutiny.
is a Catch 22 of sorts inherent in all of this, there can be no
perfect system. But the entire Constitutional Council system rests
on the premise that its members are supposed to act impartially
- and with full knowledge of the fact that the Constitutional Councils
represent the ultimate that's possible in terms of integrity that
is achievable in a democratic polity.
institutions have become so tainted that paradoxically nothing seems
to be beyond reproach - and its the same fear that should deter
any institution from granting absolute immunity to the Constitutional
In Nepal for
instance, an independent unit recommends the appointment of judges.
The appointment of the Chief Justice is made on the recommendation
of a Constitutional Council. The other Supreme Court justices are
appointed by the king on the recommendation of the Judicial Council
consisting of the Chief Justice as the Chairman and two Supreme
Court judges, Minister for Law and Justice and one legal expert
designated by the King on it.
But yet, 'the
judiciary of Nepal, after the restoration of democracy, has become
an extremely powerful and a highly responsible institution. Prior
to the dawn of democracy it enjoyed power delegated by the King,
meaning the judiciary was not free then.
constitution has made the judiciary free, competent and capable
both in a de facto and a de jure sense. The Supreme Court can override
the decisions and actions of the parliament and the executives,
if they violated the provisions of Constitution and existing laws.
It has the power to declare legislation unconstitutional and the
decisions of the government illegal. Thus, it is vested with more
power than the parliament and the executives' body.' (Informal Sector
Service Center Publications Nepal.)
The Nepal constitution
on which the 17th Amendment of this country's constitution is modelled,
therefore is seen to have created a fiercely independent and competent
judiciary despite the fact that appointments to it are made by an
independent separate body - which does not have any constitutional
ouster clauses regarding its own decision making process.
Each body is
in one way the guarantor of the independence and accountability
of the other and is analogous or an extension of the system of checks
and balances created by a system of Executive, Judiciary, and Legislature.
bodies which make appointments to the judiciary are also technically
an arm of the Executive even though they are functionally independent,
and therefore the system of checks and balances should operate and
such bodies should not be above the law ie: the scrutiny of the
Supreme Court. However, it is only in exceptional circumstances
that the Constitutional Councils will be subject to challenge in
court, which therefore should behove the judiciary to act in a way
as not to impinge on their independence.
In the flux
that Sri Lankan institutions are now in - - this may be too much
to expect in the immediate future.
But as these
institutions evolve, it will be clear that any claim for judicial
immunity for members of the Constitutional Council is not just unwise
and violative of the constitutional principle - but is also quite