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Minister Peiris misrepresents effect of 19A on presidential immunity

08 Oct 2020 - {{hitsCtrl.values.hits}}      



This statement was made in the context of the constitutional changes in the proposed 20th Amendment (20A). In his statement, Minister Peiris justifies the need for presidential immunity as provided for in the 20th Amendment, by claiming: As long as the 19th Amendment is in force, the president will have to waste his time (“rastify”) in courts. To evaluate this claim, FactCheck examined the provisions of Article 35 of the Constitution as they stood before and after the 19th Amendment (19A).

A plain reading of these provisions demonstrates that both before and after 19A, no ordinary legal actions (whether civil or criminal in nature) can be initiated or continued against the president while he holds office.

Therefore, legal actions in which the president was personally involved (prior to election) stand suspended while he is president.

The Constitution only permits limited legal challenges of the exercise of the president’s powers. Both before and after 19A, challenges of the president’s actions are brought against the attorney general, who appears in court on behalf of the president. The president was not and is not required to personally appear in court (in fact, he is not even a named respondent). 

Pre-19A, only the exercise of the president’s ministerial powers could be challenged. Post-19A, the exercise of any of the president’s official powers (with one exception) may be challenged by way of fundamental rights petitions. While 19A widened the scope of actions which may be challenged, it had no effect on presidential immunity in terms of requiring the president to attend or spend time in court. Both pre-19A and under 19A, he was never required to do so. This position remains the same in that regard, in terms of the published 20A Bill.

Accordingly, 20A also makes no effective change to the president’s immunity in terms of saving time spent in court. The only significant change is that the scope of the president’s actions that may be challenged is narrowed to the pre-19A position.

Therefore, we classify this statement as FALSE.

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