22nd June 1997

Where the President is not above the law

By J. Mervyn Canaga Retna

The unanimous judgement of the Supreme Court of the United States of America in the "sexual harassment case" delivered very recently is a landmark judgement in the history of criminal jurisprudence in any democratic country. And who said that the President of the United States of America enjoys Presidential Immunity from civil process and suits whilst in office.

The judgement delivered by Justice Stevens of the United States Supreme Court placed the issue of the presidential immunity in America in civil litigation beyond all doubt. The fact that he may not be arrested whilst in office in a sense places him above the law but that does not place the President beyond the jurisdiction of the courts in civil suits.

There is no immunity provision in the Constitution but he can be impeached by the procedure laid out in the Constitution by the House of Representatives .The Constitution of the United States of America is noted for its clear separation of powers - the judicial, the legislative and the executive and it is to the credit of that nation that for over two centuries now no attempt has been made to alter the situation of the separation of powers and it has emerged unscathed without any interference by executive legislative or presidential action or authority.

Paula Jones
The Supreme Court ruling from Washington did not come as a surprise to most persons familiar with constitutional law but the ruling appears to have shocked Paula Jones the alleged victim (complainant) in the sexual harassment case. The arguments of the president's lawyers that the country's chief executive was constitutionally protected has no constitutional authority or basis and so the Supreme Court by its unanimous decision merely reiterated what seemed to be obvious..

However, the ruling does not make the President guilty or liable to pay the $ 700,000 claimed. The offence alleged to have been committed in 1991 when Clinton was Governor of Arkansas was not made a matter of complaint until 1994 and this long delay must surely affect on a balance of evidence the proof or otherwise of the guilt of persons accused of crime whether he be the President or a private individual.

The long delay of nearly three years is not to be ignored. The suggestion of settlement is to say the least preposterous. Any settlement with the complainant or attempt at settlement would be "fatal" virtually not only to Clinton but to the great office of the most powerful man in the world.

The bizarre attempt of the complainant to bolster her case with which she considers corroborative evidence of another who was not an eye witness is to say the least a travesty of justice. The tabloid press in these Western Democracies are, in the opinion of several enlightened persons, taking the matter of Freedom of the Press too far for they are certainly not acting in the best interests of their respective regions.

As a matter of fact their actions are tragically counter productive as far as their nation's progress is concerned. As pointed out by a judge of the House of Lords in England and repeated by several judges in other democratic institutions, freedom of the press does not mean freedom of "the wild ass" and there must surely be sound restrictions on these attempts to be so very inconsistent.

The issue however that interests the world and, we in Sri Lanka particularly, is whether in a democracy the president of a country stands above the law. Does the office confer on a president special rights of immunity. Must a plaintiff in a civil suit against the president receive equal consideration and treatment. These are the matters that the whole world is interested in and would like to be apprised of.

Dealing with various constitutions in democratic states, the Swiss constitution written as far back as 1874 has no provision of immunity for the president like that which is provided in our 1978 constitution although that era was prone to revolutions and autocratic attitudes of those in the seats of Power.

The president under the Swiss constitution is selected by a system of election peculiar to that country. Of the seven members of the Federal Council one is elected every year as president and he cannot be elected in the next consequent year so that by election the office of president passes by rotation. It is impossible for the president to do much in a single year.

India is the world's largest democracy. The test of democracy it is said is not how governments are chosen but how governments are changed. The Indian Constitution has a president but it is not a presidential form of government. He is only a nominal head and can only act on the advice of the Prime Minister.

He holds office for five years and all Bills passed by both houses of parliament required his assent to become law.

The issue of immunity dose not figure in the Indian Constitution at all. Part (v) Chapter I of the Indian Constitution relating to the election of the president and vice president is very clear on this aspect.

The Position in Sri Lanka under our 1978 Constitution:

And how did the story get around that the said constitution is a hybrid of the American, French and British constitutions.

Professor A. J. Wilson said when the constitution first came into being that "it endeavours to adopt a style of government that suits a crisis-laden society that is in danger of going off balance". He said that it "incorporates functional aspects of our own past as well as those of the British, American and French systems".

But there is no doubt now that it is unique on this issue of presidential immunity and experience of the 17 years has shown that far from what Professor Wilson has said there have been subtle attempts at dictatorship despite the entrenched provisions for example to extend the life of parliament. The dictatorship is not with the parliament but the president himself and it is known that in 1978 the system of the appointment of judges suffered a great set back.

There is no parallel in the history of democratic institutions for such blatant abuse and our people were made to believe that the provisions were an exact copy of that in the American and French constitutions.

The misnomer has been caused by the framers of the famous 1978 constitution and it is no wonder that the immunity provided for the president under the 1978 constitution has caused all the discontent, near chaos and dictatorial attitudes of the president himself and those purporting to be close aides of the president.

It is true that he is elected and that a minimum percentage is required for him/her to be declared president but once elected he/she is above the law, above order and the rule of law and he continues for six years.

The misnomer has been caused by the framers of our own 1978 Constitution when they decided to include this immunity provision in the said Constitution. Article 35 of the 1978 Constitution of Sri Lanka provides as follows:-

"While any person holds office as President, no proceedings shall be instituted or continued against him in any Court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity".

"Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the period of time during which such person holds the office of President shall not be taken into account in calculating any period of time prescribed by that law.

"The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedings in any Court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article 130 (a) relating to the election of the President".

"Provided that any such proceedings in relation to the exercise of any power pertaining to any such subject or function shall be instituted against the Attorney-General."

The immunity granted to the President in Sri Lanka is unique in the sense that no other constitution in a democracy has a similar provision and no doubt the purpose for the inclusion of the provision is now overwhelmingly clear.

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