By Rajpal Abeynayake


Immunity: 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.

All shades 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.

Basically, 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.

Such ouster 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.

The Judicial 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.

Rohan Edrisinha, 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.''

It appears 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.''

This however 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.

But instead the response has been that the law is bad - -and therefore that there should be immunity from suit for those who function under its ambit.

Various other 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 been.

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.

Though there 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.

However, our 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 Councils.

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.

The present 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.

Independent 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 unnecessary.

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