Since the entire complexion of the November 16 Sri Lankan Presidential election will change if the Court of Appeal upholds the plea that the Sri Lanka Podujana Peramuna’s candidate, Gotabaya Rajapaksa, is not a Sri Lankan citizen, Sri Lankans across the political divide are waiting with bated breath for the verdict which is expected to be given on October 4.
For Gotabaya to remain in the Presidential race, the court will have to resolve two issues in his favour:-
(1) The controversy over the legality of the Dual Citizenship Certificate he possesses. This certificate has the signature of the then President of Sri Lanka (Mahinda Rajapaksa) but not the Secretary of the concerned Ministry. It has a “for” signature and not the Ministry Secretary’s.
(2) The non-availability, at the moment, of the original docket pertaining to his Dual Citizenship in the office of the Controller General of Immigration and Emigration.
If Gotabaya’s plea that the President of Sri Lanka has the plenary power to function as the executive, whether the cabinet of ministers or the secretaries to the ministries exist or not, is accepted by the court, then the signature of the President on the dual citizenship certificate in 2005 will be valid.
Gotabaya will then be deemed to have secured dual citizenship in 2005. Recently, he renounced his American citizenship and retained his Sri Lankan citizenship which will enable him to contest the Presidency under the 19 th. Amendment of the constitution.
If he overcomes the legal hurdles, Gotabaya will be a front runner in the Presidential race with considerable support in the majority Sinhala community (which accounts for more than 75% of the Lankan population) ; Sri Lankan nationalists and others yearning for a functioning government after languishing under the under-performing “Good Governance” regime led by President Maihripala Sirisena of the Sri Lanka Freedom Party (SLFP) and Prime Minister Ranil Wickremesinghe of the United National Party (UNP).
If the court does not accept Gotabaya’s plea and upholds the plea of petitioners Gamini Viyangoda and Chandraguptha Thenuwara, then Sajith Premadasa, the candidate of unified UNP has the best chance of winning the Lankan Presidency.
None of the other candidates in the field, including Anura Kumara Dissanayaka of the Janata Vimukthi Peramuna(JVP), has the capability of Sajith. The UNP has the largest voter base among the non-SLPP parties. The UNP is also exceptionally charged up now because it has, at long last, found a candidate with a “common touch” after putting up with an elitist and distant leader like Ranil Wickremesinghe.
Appearing for the petitioners, Suren Fernando said that Gotabaya Rajapaksa was a former citizen of Sri Lanka before 2003 by decent. Thereafter, on or around January 31, 2003, he had become a citizen of another country i.e. the United States of America. From that day onwards, Gotabaya Rajapaksa ceased to be a citizen of Sri Lanka under the Citizenship Act of Sri Lanka.
Subsequently, he applied for Dual Citizenship status to the relevant ministry, in order to obtain a new Sri Lankan passport and a national identity card, because he was not a citizen of Sri Lanka at that time. Gotabaya applied for a Dual Citizenship Certificate during the period between November 18 and 24, 2005, soon after his brother, Mahinda Rajapaksa, was elected as the President of Sri Lanka.
Mahinda Rajapaksa assumed office as President, after the election on November 18, 2005. Upon his election,the existing Cabinet of Ministers stood dissolved. A new Prime Minister, Ministers and the assigning of the subjects to the Ministries took place, on November 21, 23 and December 08 respectively.
When Gotabaya Rajapaksa applied for Dual Citizenship and had one issued, there was no Cabinet and therefore, no Ministers or Secretaries either. The impugned Dual Citizenship Certificate had been signed “for” the relevant ministerial Secretary by the then President Mahinda Rajapaksa, counsel Fernando said.
Whereupon, the Court of Appeal President, Yasantha Kodagoda, asked whether there was any residual power vested upon the President to exercise the executive power of the government in the absence of the Cabinet. Fernando replied that the 1978 constitution is a combination of both Westminster and Presidential systems of governance and that its intention was not to provide such executive power to one person.
Fernando also argued that there was a difference between the President’s executive power “as a whole” and the executive powers “vested upon ministers and their secretaries.” Therefore, the former President could not have exercised such powers in the absence of a cabinet.
Fernando requested to grant interim reliefs as the impugned Dual Citizenship Certificate, on the face of it (ex facie) is void and is a nullity in law.
Appearing on behalf of the Attorney General, Controller General for Immigration and the Registrar of Persons, Senior Deputy Solicitor General (SDSG) Nerin Pulle told the court that the former President, Mahinda Rajapaksa, who had signed the Dual Citizenship Certificate of Gotabaya Rajapaksa in 2005, had the power to do so as the relevant Minister.
After the Presidential election, the cabinet stood dissolved and Secretaries to the Ministries had also quit. But as per the 1978 constitution, all executive powers were vested with the President during that period. As such, the President could sign any document that a Minister would have signed.
In other words, the President had exercised his plenary power to take decisions of Ministers. Pulle also argued that the subject Minister’s recommendation was enough and the Ministerial Secretary’s signature was not needed.
Article 44 (2) of the Constitution, which was in existence in 2005, said that the President could continue to function with all the executive powers as the head of the government and the executive, until the new Cabinet was appointed, Pulle pointed out.
Pulle, who was also appearing also for the Controller General of Immigration, told the court that the dual citizenship files older than 2007 were not available at the Department of Immigration.
Counsel for Gotabaya Rajapaksa, Romesh De Silva said that the litigation against his client had been brought by political opponents to prevent him from standing for the Presidential election. He 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.