The argument that the President of the Republic holds plenary executive power was “emphatically rejected” by a seven-judge Bench of the Supreme Court in its judgment on the illegal dissolution of Parliament in November 2018, said Counsel for the Third Respondent Home Affairs Minister Wajira Abeywardena President’s Counsel Chanaka De Silva, as hearings on the high-stakes case challenging the validity of SLPP presidential hopeful Gotabaya Rajapaksa’s citizenship commenced for a second day yesterday.
President’s Counsel Chanaka De Silva said the decision of the seven-judge Bench of the Supreme Court was binding in relation to this argument, which was raised by the Attorney General appearing on behalf of the Controller General for Immigration and the Registrar of Persons on 2 October, to claim that President Mahinda Rajapaksa was within his lawful rights to sign Gotabaya Rajapaksa’s dual citizenship certificate on 21 November 2005.
“The President himself is a creature of the Constitution. He does not rule the realm by divine right exercising plenary powers. His powers are certainly not a divine right,” De Silva PC argued, in a lengthy but lucid submission before the Court of Appeal last afternoon. The Supreme Court had ruled in 2018 that plenary power was akin to “royal prerogative power”, enjoyed by monarchs, he added.
Starting where the Attorney General had ended his submissions on 2 October, De Silva PC said it was important to find out whether the powers of the President were of a plenary nature or not.
“Plenary” was defined as “full, entire, complete, absolute and unqualified”, De Silva PC explained.
Reading from the preamble to the 1978 Constitution, De Silva argued that framers of the Constitution had set out to achieve the goal of a «democratic» socialist republic. «They were certainly not proceeding to set up autocracy, where all powers are reposed in and exercised through one central authority,” he said.
The Counsel for Minister Abeywardena added that the powers vested in the President through Articles 3 and 4 of the Constitution were expounded in the rest of the provisions about how those powers are to be exercised.
In great detail, De Silva PC explained that the 1978 Constitution, which included the 17th Amendment, included four chapters that deal with the President, the Constitutional Council, the Cabinet of Ministers and the Public Service.
«All these form part of the Executive. That is the structure of the executive. All these arms derive their power from the Constitution. Not from the President. The source of their power is the Constitution,» he argued, in response to SDSG Pulle’s argument that all executive power was reposed in the President.
He explained that Article 4 was the beginning of the story, while the rest of the story was continued in other sections of the Constitution.
A seven-judge Bench of the Supreme Court determined the issue precisely in that manner, by ruling that there were two provisions in two separate sections of the Constitution – one granting the power and the other setting out how it should be exercised. “They must be read together,” De Silva PC told the Court.
Counsel De Silva also pointed out that Article 42 of the original 1978 Constitution makes the President responsible to Parliament for the due exercise of his powers, duties and functions. «So he is answerable. Is that consistent with the position that the President has plenary powers?»
In the context of the Petitioner’s argument that President Mahinda Rajapaksa could not have signed his brother’s dual citizenship certificate, because he was not the lawful Minister in charge of citizenship, since the Cabinet of Ministers had not yet been appointed, Counsel for Minister Abeywardena also argued that Article 43 of the Constitution mandates that the President shall appoint a Cabinet, and that the Cabinet shall be charged with the direction and control of the Government. “Cabinet is the body which is charged with direction and control of the Government, of which the President is the head,” De Silva PC explained. “So he is the head, but the control and direction of the Government is the charge of the whole.”
Counsel for the Home Affairs Minister, who deals with citizenship issues, said that the question before the Court of Appeal goes to the essence of eligibility to hold the highest office of the land, and will therefore have a significant and serious bearing on the franchise.
President’s Counsel Chanaka De Silva said that it was necessary for a person who puts himself forward to have the qualifications necessary to contest and hold office if elected. “This matter goes to the root of eligibility – citizenship,” De Silva PC emphasised. It was important not only to those who want to vote in the SLPP candidate’s favour, but also those who do not, he added.
Responding to a question by the Bench about whether Government grinds to a halt during the brief period of a Cabinet being dissolved and reconstituted, De Silva PC insisted that it does not, while certain matters that require the attention of a Minister or Ministry Secretary may have to wait a few days. “Heads of Department continue to function. The buses will still run. Even in the absence of a President, the country still functions. For three hours on 1 May 1993, there was no President. And yet, the police continued to work, and law and order was maintained,” he added.