Security was beefed up around the Superior Courts Complex as the high stakes litigation challenging the validity of SLPP presidential hopeful Gotabaya Rajapaksa’s Sri Lankan citizenship was taken up before a special three-judge bench of the Court of Appeal yesterday.
Appearing as Counsel for civil society activists Gamini Viyangoda and Prof. Chandraguptha Thenuwara, who filed the writ application, Attorney-at-Law Suren Fernando told the Court of Appeal during a lengthy submission that Rajapaksa’s dual citizenship certificate was a “nullity in law”, illegal on the face of it and “nothing but a blank sheet of paper” – a reference to the UK Supreme Court’s recent ruling on the prorogation of Parliament in that country.
Setting out his case, Fernando said that Gotabaya Rajapaksa was a citizen of Sri Lanka by birth but ceased to be a citizen under the Citizenship Act, when he swore an oath to become a citizen of another country on or around 31 January 2003. He had to subsequently make an application under the Citizenship Act section 19 (2) to resume status as citizen of Sri Lanka by virtue of dual citizenship.
Fernando told the court that Rajapaksa’s dual citizenship certificate was purportedly approved on 21 November 2005 after an application was made on 18 November 2005 which was a Friday. “It was also the day the results of the Presidential Election were released,” Fernando said. 21 November was the immediately following Monday, with a weekend in between.
Laying out his argument, Fernando said Mahinda Rajapaksa had been Prime Minister prior to assuming office as President on 21 November 2005. Upon assuming office as President, Mahinda Rajapaksa ceased to be a Member of Parliament and Prime Minister of Sri Lanka.
When the Prime Minister ceased to exist, the Cabinet stood dissolved by operation of law, Counsel for the Petitioners explained.
Subsequently, Mahinda Rajapaksa appointed a Prime Minister (21 November 2005), a Cabinet of Ministers (23 November 2005) and assigned subjects and functions to ministers (8 December 2005).
Fernando stressed that under the terms of the Constitution, there was no Cabinet and therefore Secretaries to the Ministries had ceased to hold office at the time Gotabaya Rajapaksa’s dual citizenship certificate was issued.
Counsel for the Petitioners argued that former President Rajapaksa had purported to exercise the powers of the Minister under the Citizenship Act when, on 21 November 2005, he issued a dual citizenship certificate to his brother Gotabaya Rajapaksa.
However, since the Cabinet had been dissolved on 18 November and a fresh Cabinet was not constituted until 23 November, Fernando argued that no Government existed on 21 November and thus no person could have legally exercised the power of the Minister.
The Constitution as it stood at the applicable time did not envisage a situation in which the President could be the minister of everything and have residual powers, Counsel for Viyangoda and Thenuwara noted.
Fernando explained that under Section 19 (2) of the Citizenship Act, only the Minister could issue a certificate of dual citizenship under that section. “I say the person who is said to have made his declaration was not the minister and therefore, he had no authority by virtue of 19 (2) of the citizenship act,” Counsel for the Petitioners argued.
An act that was wrong from the outset, was incurably bad in law and a nullity, Fernando said. “Everything founded on that piece of paper is null and void, and incurably so,” he added.
“Was it dual citizenship, or was it a blank paper?” he questioned.
Making a case for interim relief, Fernando said there would be irreparable harm if Gotabaya Rajapaksa is permitted to act on the basis of the document, particularly since nominations for a Presidential Election had been called.
“There is a Presidential Election coming up and it is the position of the Petitioners that it is undesirable, to say the least, that a non-citizen should be appointed as the president of this country. If so it will be a grave danger to the security, defence and territorial integrity of the republic, even if he is appointed for one day. If not now, what is my remedy then? Not even for one day can he be the Commander-in-Chief, the consequences will be unthinkable.
“A person who does not have allegiance and exclusive allegiance to Sri Lanka cannot hold office as president. He will be Commander-in-Chief of the Armed Forces. The consequences would be unthinkable,” he added in his prayer for interim relief that if granted, could end Rajapaksa’s presidential hopes.
Fernando added that if a disqualified candidate was put forward to contest in the election, it could defeat the franchise by making people waste their votes.
Appearing on behalf of the Controller General for Immigration and the Registrar of Persons, Senior Deputy Solicitor General Nerin Pulle disagreed with Fernando’s submissions, and told the court that the former President, who had signed the dual citizenship certificate of Gotabaya Rajapaksa in 2005, actually had the power to do so as the relevant minister, because he had continued to exercise being the head of the Government and the Executive even in absence of a Cabinet at that time.
He said the dual citizenship concept was first introduced to the Citizenship Act with the amendment made in 1987 and it stipulates two requirements to obtain a dual citizenship certificate. First there has to be an application addressed to the relevant minister and then the minister has to make a declaration on the dual citizenship.
Legally the certificate did not require the signature of a secretary, SDSG Pulle insisted. He also argued that the 1978 Constitution brought about a presidential form of governance, and as head of the Executive, the President held “plenary executive power”.
SDSG also referring to the Article 44 (2) of the Constitution which was in existence in 2005 (said that the President could continue to function all the Executive powers as the head of the Government and the executive, until the new Cabinet is appointed. “So in this case, the President had signed the certificate as per the Citizenship Act in the ministerial capacity and therefore the requirements to obtain dual citizenship certificate had been fulfilled as per law,” he said.
SDSG Nerin Pulle, appearing for the Controller General of Immigration, told the court at the outset of proceedings that dual citizenship files older than 2007 were not available at the Department of Immigration. As a result Gotabaya Rajapaksa’s dual citizenship application and other documents were not available at the Department to be tendered to court, the SDSG told the Bench.
Raising preliminary objections at the beginning of proceedings, Counsel for Gotabaya Rajapaksa, who is the fifth Respondent in the writ application, Romesh De Silva PC, said that the litigation against his client had been brought by political opponents and not in the public interest.
De Silva PC said he would tender to court, a photograph of the two petitioners – both leading civil society activists – meeting with the current Prime Minister. Counsel for the former Defence Secretary also took objection to the fact that the writ application had been filed while an investigation into the same facts was taking place under the supervision of the Colombo Magistrate.
He also took objection to the fact that only extracts of statements taken by officials questioned by the CID had been included in the B reports on the investigation, and insisted that the full statements should be presented to court in order for proceedings to continue.
De Silva insisted that the writ jurisdiction of the Court of Appeal could not be gone into when there was an ongoing investigation. Counsel for former President Mahinda Rajapaksa who has also been cited as the sixth Respondent in the petition, Gamini Marapana PC, associated himself with that objection: “If your Lordships grant interim relief and if the investigation finds nothing wrong – by that time the election has come and gone.”
However, in response, Counsel for the petitioners Attorney-at-Law Suren Fernando said he was arguing his case on two distinct and independent grounds, the first being to prove to court that Rajapaksa’s dual citizenship certificate was ex facie a nullity in law.
“On that argument, it is not required to make reference to the Magistrate’s Court B Report,” Fernando explained. It was his second submission that goes into the process adopted to obtain this document, which the petitioners were seeking to impugn in the case. “The root of his case is the purported dual citizenship certificate. I will stand or fall on my first ground,” he told Court.
De Silva also argued that an essential party to the case, the Sri Lanka Podujana Peramuna (SLPP) which had nominated Rajapaksa as its candidate had not been included in the petition.
Responding to that objection, Counsel for the Petitioners said that SLPP was not a legal entity, and added that in any event, Mahinda Rajapaksa, who is the leader of that party, had been cited in the petitioner as the sixth Respondent.
Replying to a question from the Bench about whether the SLPP should have been cited since the case involved the legal entitlements of a member of that political party, Fernando replied that the lawful entitlement of the SLPP was to nominate a candidate according to the Constitution and the law. “It is not the lawful entitlement of the SLPP to nominate just anyone as its candidate, it is not entitled to nominate a foreigner,” Attorney Fernando charged.
The Bench decided to take up merits of the case and objections together over the course of the two-day hearing.
Hearings on the writ application will continue today.