Former MP Udaya Gammanpila made the above statement as part of a series of tweets (given below) with reference to the ability to prosecute former President Maithripala Sirisena for any alleged crime in relation to the Easter Sunday attacks.
To evaluate the former MP’s claim FactCheck consulted the provisions of article 35 of the constitution as they stood both before and after the introduction of 19A (Exhibit 1).
The plain text reading of the applicable constitutional provisions in Article 35 provides the following conclusion: Sri Lankan presidents—whether before or after 19A—were never afforded immunity for their actions, after they ceased to be president, and this absence of immunity applies even to actions taken while they were president (Exhibit 2, Note 1).
Additionally, FactCheck found that no legal precedent has departed from the plain text reading of the constitution regarding presidential immunity (Note 2).
Gammanpila’s statement that “no law has stripped presidential immunity against criminal prosecution conferred by Article 35 of the Constitution” is not technically incorrect. However, it is irrelevant to his claim, because a covering that did not exist cannot be stripped. Gammanpila incorrectly claimed that President Sirisena presently enjoys immunity from prosecution. The information presented here shows that no law is needed to strip President Sirisena of immunity while he is no longer the president, because the law has never afforded Sri Lankan presidents immunity after they cease to hold office—even for actions taken during their term as president.
Therefore, we classify the MP’s statement as FALSE.
*FactCheck’s verdict is based on the most recent information that is publicly accessible. As with every fact check, if new information becomes available, FactCheck will revisit the assessment.
Exhibit 1: Provisions of Article 35 of the Constitution pre and post 19A
Exhibit 2: Distinction in scope of immunity offered to the president pre and post 19A
Note to Exhibit 2:
Exhibit 2 refers to all proceedings except for certain actions/inquiries for impeachment of the president or any election petition on the validity of an election as president or a referendum – which are referred to in Article 35(3), from which the president has not been immune while in office, both before and after the 19th amendment. Such immunity would not be involved after s/he ceases to hold office. These scenarios have no relevance to this FactCheck.
Exhibit 2 also does not include the position prior to the 19th amendment, with regard to the president not being immune for any actions done in the capacity of a minister even while in office, under article 35(3) as it existed prior to the 19th amendment. This aspect is also irrelevant to this FactCheck.
However, the power of the president ‘to declare war and peace’ under article 33(2)(g) is made immune from the jurisdiction of the supreme court under article 35(1) of the post-19th amendment constitution. This power (which was never exercised by President Sirisena – or any executive president to-date) and its immunity are irrelevant to this FactCheck. Accordingly, it should be borne in mind that references in Exhibit 2 and this FactCheck to immunity from criminal and/or civil proceedings do not include a reference to any proceedings relating to any action to declare war or peace, which this FactCheck does not cover.
(a) The following two assumptions are applied:
- Where the relevant legal provisions of the constitution are very plain and give only one meaning, no legal opinion or court interpretation is required; and
- Any assertion contrary to the obvious meaning cannot be accepted as correct unless credibly substantiated.
(b) Judgments of the supreme court which clearly emphasise that a president cannot be above the law and must remain accountable through amenability to legal proceedings after ceasing to hold office, point to no exemption for a former president, from proceedings for alleged criminal or civil liability.
MP Gammanpila’s tweets:
- Parliament of Sri Lanka, Second Republican Constitution of Sri Lanka incorporating its 19 Amendments, Article 35: available at: https://www.parliament.lk/files/pdf/constitution/constitution-upto-19th.pdf.
- Parliament of Sri Lanka, Second Republican Constitution of Sri Lanka incorporating its 18 Amendments, Article 35: available at: https://www.parliament.lk/files/pdf/constitution/constitution-upto-18th.pdf.