Shehan Chamika Silva
The three-judge bench of the Court of Appeal comprising Justices Yasantha Kodagoda (President/CA), Arjuna Obeysekara and Mahinda Samayawardena today unanimously decided to dismiss the writ petition filed against former Defense Secretary Gotabaya Rajapaksa’s citizenship status after hearing all parties over almost four days of continued court proceedings at the Court of Appeal.
This petition was initially filed invoking the writ jurisdiction by the petitioners. This petition had disputed the citizenship status of Gotabaya Rajapaksa based on the following scenarios that took place in 2005.
Petitioners said Mahinda Rajapaksa was the Prime Minister before November 18, 2005. He then assumed office as the president on November 18, 2005. Thereafter, the Cabinet and ministerial secretaries dissolved because the PM ceased to function. However, Gotabaya Rajapaksa’s dual citizenship certificate was signed by the former President on November 21, 2005, exercising the executive powers vested in the cabinet.
On December 08, the new cabinet was formed by the president.
Petitioners argued that If the cabinet was dissolved there were no ministers to sign the certificate and the president has no power to exercise all ministerial powers till the cabinet is appointed.
However, the Attorney General appearing for certain respondents contended that even in the absence of a cabinet, the president continues to function all executive powers as the constitution provides him with plenary executive powers because he was the head of the executive and the government. He said the dual citizenship certificate should be declared by the relevant minister after an application is made to the minister so the certificate can fulfil all the requirements under the Citizenship Act.
Thereafter, the Counsel appeared for the Home Affairs Minister, who was another respondent, and said that the president had no plenary executive power. He should have appointed the cabinet as his first job in 2005. He said this executive power should be interpreted in the backdrop of democratic governance (as per the preamble of the constitution 1978), and also such powers should be construed reading all the relevant parts the Constitution together.
However, Romesh de Silva PC and Gamini Marapana PC who appeared for Gotabaya Rajapaksa and Mahinda Rajapaksa argued that the president exercised repository executive power received from people’s sovereignty since 1972. So, keeping in mind that people’s sovereignty was exercised by the president, one should read Article 30, and 44, of the Constitution. And under Article 44(2), it provides as to how the president can assign ministries to form the cabinet. This article also provided that he can keep the unallotted ministries. It means the retaining of the ministries for him is self-explanatory that one can assign or give something, only if it is a repository. The president is the all executive repository power in the country.
Counsel Suren Fernando appearing for the petitioners today finally concluded the oral submissions by rebutting the respondent’s arguments.
He explained that the core issue that the petitioners are referring to is based on the fact that whether the then-president had the executive powers vested in the cabinet of ministers and whether he could, therefore, authorise the citizenship certificate of Gotabaya Rajapaksa on November 21, 2005 functioning in the ministerial capacity between a time period where the cabinet had been dissolved and ceased to be functioning.
He said Article 44, which existed in the Constitution in 2005 (this article was later removed by the 19 Amendment), had provided how such power should be exercised as opposed to what the respondents have made so far in arguing.
He said under Article 44(1) the president shall appoint the cabinet immediately after his assuming duties as the president.
And under 44(2), which is a sequel subsection to the article, says that then the president shall determine on assigning ministries, Mmnisters and their subject areas. After doing that the President could keep the ministries which have not been assigned to any ministers. ‘It is the ministries that have not been allotted to a minister can remain with him,’ he said.
‘Therefore, the president did not have any repository executive power in keeping those executive powers beforehand as respondents said’, Suren Fernando said.
He was of the view that therefore there was no plenary executive power vested in the president to exercise executive powers completely, as respondents said because such plenary powers have been not recognised by the Supreme Court in recent judgments.
Then he addressed the issue pertaining to the fact that ‘ what would happen when between the intervening time period that a new president assumes office and the new cabinet gets appointed’.
Suren Fernando said in such situations the president could not exercise executive powers of ministries because this is a time where subjects and areas have not been assigned to the ministries. But, he said that this situation will not render the president powerless. He was of the view that the president had the power to act under the public security ordinance if some urgent decisions have to be made in a disastrous situation. ‘ So there is no chaotic situation between this time. It is very clear and unambiguous that the president should first appoint a cabinet, and exercise his executive powers accordingly’ he said. Therefore he said in order to claim to be a minister by then-president, he first should have appointed the cabinet as per Article 44(1).
Despite these arguments which were based on one aspect whether this impugned citizenship certificate is valid or not, Romesh de Silva PC and Gamini Marapana PC brought up several preliminary objections against the maintainability of the petition.
They said the petition is a mala fide application filed on pure political vengeance and it should be dismissed straight away as there is no right to invoke writ jurisdiction on technicality according to the decided law. Romesh de Silva PC made these remarks pointing out several factors which are relating to the petition.
Mr. De Silva said if the president could not sign the dual citizenship certificate in 2005, it was not only Gotabaya Rajapaksa who would get affected by this matter. He said there were 21 other individuals whose citizenship certificates were granted on that day (November 21, 2005). ‘Now what about their stance on this issue? Will those 21 individuals be rendered stateless too?’ he asked.
“Secretary of the Defense Ministry can only be held by a citizen in this country. And my client has been a citizen for almost fifteen years. And the petitioners suddenly come to court to dispute about his citizenship merely on the ground of a technicality now. Writ applications cannot be invoked on a technicality so this application should be dismissed straight away as per law”, he said. He also said that the writ jurisdiction should be exercised based on the concept of equity and therefore this petition should be dismissed.
He also pointed out that the SLPP and 21 other persons whose rights are adversely affected by this petition have not been named as necessary parties and therefore it is flawed in law.
Mr. De Silva further explained about the alleged intention of the petitioners by referring to certain parts of the writ petition.
“On the caption of this writ application, it is mentioned Minister of Home Affairs as ‘Honourable Minister’, but the sixth respondent, the former president of this country was cited as only Mr. Mahinda Rajapaksa”, Romesh de Silva argued. He said that it reflects the clear mala fide intention of the petitioners.
However, at the onset of today’s argument, Counsel Suren Fernando appearing for the petitioners addressed the court on the fact concerning the naming of former president Mahinda Rajapaksa in the petition as Minister.
He said it was an oversight and he takes the responsibility as the counsel but not a fault of the petitioners. He said that he has already apologised to the respondent’s counsel about the oversight which happened due to quick drafting of the petition.
However, Romesh de Silva PC and Gamini Marapana PC stressed that even though the apology could be accepted, the defect of the petition for citing the then president in person could not be avoided. And they said that the assumption of mala fide intention of the petitioners also should not be set aside.
Gamini Marapana PC also said that this petition should be dismissed straight away as this petition was filed to insult the respondents because in the petition it stated that then-President had done fraud in signing the citizenship certificate. ‘How can it be a fraud. Everyone admitted that then-president was duly elected and then signed those certificates for several persons as a minister. So what is the fraud in it even if he had not possessed the power to do so?’ he asked. He also said that it was a serious defect in the petition to accuse respondents of fraud for something which is not a fraud. ‘In such instances, if that accusation is found to be meaningless the whole petition should not be maintained,’ he said.
Romesh de Silva PC with Palitha Kumarasinghe PC,Ali Sabry PC , Sugath Caldera , Ruwantha Coorey, Harith De Mel and Namik Nafath instructed by Sanath Wijewardene appeared for Gotabhaya Rajapakse.
Gamini Marapana PC, and Naveen Marapana PC appeared for former President Mahinda Rajapaksa.