IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application in the nature of Writs of Certiorari and Mandamus in terms of Article 140 of the Constitution of the Republic.

Govinnage Wasanthi Padmalatha Perera, Of No: 47/15A, 1^st Lane, Railway Station Road Homagama.

Petitioner And 13 others C. A. Writ Application No. 01/2020 Vs.

1. A. N. Guruge, Commissioner General of Inland Revenue, Department of Inland Revenue, Sir Chiththampalam A. Gardiner Mawatha, Colombo 02. Respondents And 73 others Before: Hon. D.N. Samarakoon J., Hon. Sasi Mahendran J., Counsel: P. K. Prince Perera with S. Panchadsaran for the Petitioners.

Youresha de Silva D. S. G. for the 01^st to 17^th and 26^th to 74^th Respondents.

Written Submissions on: 07.11.2022 by the Petitioner

18.04.2022 by the Respondents Date: 12.07.2023 D.N. Samarakoon, J.

ORDER

01^st to 14^th petitioners have filed this application seeking to question the promotions of 18^th to 23^rd and 25^th respondents in the Inland Revenue Department.

The petitioners have made, as they question a cabinet decision the then incumbent President of the Republic Mr. Gotabhaya Rajapakse the 73rd respondent, in his capacity as the Head of the Cabinet.

One of the preliminary objections is that this cannot be done, due to the immunity of the President and hence the application should be dismissed.

Article 35, of the Constitution of the Republic, dealing with the immunity of the President has been finally amended by the 20th Amendment to the Constitution.

It reads, “35.

(1) 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:

Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity:

Provided further that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President under paragraph (g) of Article 33.

(2) 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 the period of time prescribed by that law.

(3) 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 or the validity of a referendum or to proceedings in the Court of Appeal under Article 144 or in the Supreme Court, relating to the election of a Member of Parliament:

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.” [Emphasis added in this order]

However, Article 44(2) before the 20^th amendment to the Constitution, dealt with, the assignment of subjects to the Ministers.

The saving clause in Article 35(3) is to enable a party to file action against the President, in his capacity as a Minister.

Certain changes were made to Article 44(2) by the 20^th Amendment to the Constitution. It added that the President “shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph (1)

of this Article or the provisions of paragraph (1) of Article 45…”

21^st Amendment to the Constitution did not amend Article 35 but it amended Article 44(2). Presently Article 44(2) read