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It is very clear from Article 30, 31 and 33 that the President in office is not fettered in carrying out or exercising the said powers by any other provision of law and the power exercised by the President under Articles of the Constitution are not subject to or supervision of any other laws of the land or by any other Articles in the Constitution.
Article 38 of the Constitution describes offences the sitting President can be charged with and procedures of investigating an offence committed by the President in office are also stated in Article 38 of the Constitution.
Therefore the Constitution by itself has provided the procedure of investigation, prosecution of a sitting President can be charged with when an offence is committed under Article 38 of the Constitution in the Supreme Court of Sri Lanka.
This is very important because a sitting President can be inquired of a violation of constitutional provisions only by the Supreme Court of Sri Lanka.
It is very clear in Article 38 of the Constitution that a sitting President can be investigated by Parliament and inquired by the Supreme Court accordingly. The Constitution specifically made provisions to investigate a violation under Article 38, which can only be investigated and inquired by the Supreme Court alone. The Constitution does not refer to any other statutes or by laws in relation to a violation of the Constitution by the President.
Presidential Elections Act and Presidential Elections (Special Provisions) Act
The Presidential Elections Act and Presidential Elections (Special Provisions) Act govern procedure of electing a person to perform and discharge the powers and duties and functions of the President referred to in Article 30 of the Constitution. In the absence of any other direction in the Articles of the Constitution, the sitting President in office shall continue to exercise perform and discharge the powers, duties and functions of the President until the assumption of office by the person declared elected as President.
Section 79 of the Presidential Elections Act defines bribery as corrupt practice. The section 79 (a) to (i) defines very specific offences which can be committed by any person. It is has to be distinguished that of offences referred to in Article 38 (2) of the Constitution and section 79 of the Presidential Elections Act are totally different sections and has no relationship of offences set out in Article 38 and section 79 of the Presidential Elections Act.
Section 80(3) of the Presidential Elections Act specifically states prosecution for corrupt practice shall not be instituted without the sanction of the Attorney-General.
The Act further states that prosecution under this section shall not be instituted against any candidate at an election under this Act who was not elected to the office of President. Unless such petition is presented within 21 days of the date of publication of the result of the election in the
Gazette under section 102(1) of the Act.
It’s very clear from above laws that the sitting President can be charged or investigated under the provisions of the Constitution and by the provisions of Presidential Elections Act and Presidential Elections (Special Provisions) Act.
The Constitution, Presidential Elections Act and Presidential Elections (Special Provisions) Act has spelled out the procedure and the prosecution relating to an offence committed by the President.
Therefore it is very clear when the law has provided specific remedy by the Constitution and by a statute, no other laws are applicable for an offence committed by the President while in office.
The basic Principles of Law enshrined in our justice system
These are the basic Principles of Law enshrined in our justice system spanning over 200 years, vis-à-vis “The right and the remedy are given uno flatu, and the one cannot be dissociated from the other…”
“It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others.”
“The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law.”
“The right and the remedy are given uno flatu, and the one cannot be dissociated from the other… It cannot be the duty of any Court to pronounce an order when it plainly appears that, in so doing, the Court would be using a jurisdiction which the Legislature has forbidden it to exercise.”
“...for breach of that statutory right the remedy provided by the Act must be sought.”
“It is undoubtedly good law that where a statute creates a right and in plain language, gives a specific remedy or appoints a specific tribunal, for its enforcement, a party seeking to enforce the right must resort to that remedy or that Tribunal and not to others.”
“where a specific remedy has been provided by an Act for the breach of a relevant statutory right, the remedy provided by the Act must be sought.”
“where a statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that tribunal and not to others.”
“that where an obligation does not arise under the common law but it is created by statute that one must look to the statute to see if there is a specific remedy contained in it.”
“for breach of that obligation and if a specific remedy has been provided, no other remedy is available at law.”
A simple example of applicability of the said principle is as follows: “The Partition Law provides a specific remedy, the Plaintiff Respondent is not entitled to resort to provisions of the Civil Procedure Code.”
Commission to Investigate Allegations of Bribery or Corruption, Act No. 19 of 1994
The Commission to Investigate Allegations of Bribery or Corruption has only limited powers and offences set out in Section 90 of the Bribery Act and in part II of the same Act which are punishable in the High Court of Colombo.
Offences set out in the Constitution and in the Presidential Elections Act and Presidential Elections (Special Provisions) Act are not included as offences which can be investigated by the Bribery Commission.
Also an offence under the Bribery Act is to be tried in High Court of Colombo. An offence committed in violation of the Constitution and an offence set out in the Presidential Elections Act committed whilst by the President in office is to be tried by the Supreme Court of Sri Lanka.
This clearly shows that offence under the Bribery Act, violation of Constitution and an offence under the Presidential Elections Act are totally different class of offences.
It is very clear from above that the Bribery Commission has no authority or any basis of authority to investigate offences defined in the Constitution and in the Presidential Elections Act and Presidential Elections (Special Provisions) Act and it is no authority or legal basis to summon or even to record a statement from the former President of the Republic.
(The writer is an Attorney-at-Law.)
