Election Commissioner 'Valid In Law'

[TamilNet, Monday, 17 January 2000, 16:42 GMT]
Court of Appeal has declared that the appointment of an Acting Commissioner of Election by President Chandrika Bandaranaike Kumaratunge during the recent Presidential Election was valid in law. The Court held that it was the President's prerogative.

The Bench comprised Justice Hector Yapa, Justice Asoka de Silva and Justice Gunawardene.

In their suit, News Editor of Ravaya, Newton Seneviratne and former Air Force Commander Air Vice Marshal Harry Goonatileke had challenged the legality of the appointment of D.M.P.B.Dassanayake as an Acting Election Commissioner.

The Order said:- The President, under Article 103 of the Constitution, has exclusive power to appoint the Commissioner. Further, the President also has the exclusive power to make the acting appointment at any time.

The Article 103(4) of the Constitution, which confers that power on the President, is couched in the following words. "Wherever the Commissioner of Elections is unable to discharge the functions of his office, the President may appoint an Acting Commissioner in place of the Commissioner."

The term "Wherever" means that whatever time or in any or every instance. The President can make the Acting appointment at a time whatsoever no matter that the proclamation for Presidential Election had been made. The submission of the petitioners broadly speaking was that the President's power to make an Acting Election Commissioner is ousted, by Section 19 of the Presidential Election Act, once or from the time the proclamation is made announcing a Presidential Election till the time or stage that symbol being the last duty, in the sequence of duties, assigned to the Commissioner under Part two of the Act.

The Court also held that in cases or situations when the law has conferred on the President immunity from legal proceedings, the President has no right to ask that he/she be heard in defence of his actions or omissions while he/she still holds office.

"That would be a surrender of immunity by the President. And the President has no right to surrender immunity conferred upon him by law because the immunity is conferred on him in the public interest and not in his own personal interest," Justice Gunawardena said.

"The immunity conferred on the President is not the right of the President alone for it is the right of the public also."

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