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Why the Petition Filed by Civil Society Activists Chandragupta Thenuwara and Gamini Viyangoda Seeking Writ of Certiorari Against SLPP Presidential Candidate Gotabaya Rajapaksa Did Not Succeed in the Court of Appeal

By C. A. Chandraprema

Yahapalana activists Gamini Viyangoda and Prof. Chandraguptha Thenuwara filed an application with the Court of Appeal, seeking a writ of Certiorari to annul Gotabhaya Rajapaksa’s dual citizenship certificate and an interim order preventing him from acting on the basis that he is a citizen of Sri Lanka. Their argument was that if GR’s Dual Citizenship Certificate was invalid, his Sri Lankan Passport and National Identity Card were also invalid.

The petition was heard before a three member bench comprising of Justice Yasantha Kodagoda, President of the Court of Appeal and Justices Mahinda Samayawardhena, and Arjuna Obeyesekere. At the outset, the Court pointed out that Counsel representing all parties agreed that the Court would pronounce its order on 4 October 2019, and deliver reasons on a subsequent date. (The reasons were delivered accordingly, on 15 October)

It was observed that Gotabaya Rajapaksa became a citizen of the United States of America on 31 January 2003 and thereby ceased to be a citizen of Sri Lanka under Section 20(5) of the Citizenship Act which provides that a citizen of Sri Lanka by descent who voluntarily becomes a citizen of any other country shall cease to be a citizen of Sri Lanka. on 21st November 2005 GR is said to have subsequently ‘resumed’ his citizenship of Sri Lanka in terms of Section 19(2) of the Citizenship Act, which provides that any person who ceases, under Section 20 to be a citizen of Sri Lanka may at any time thereafter make application to the Minister for a declaration that such person has resumed the status of a citizen of Sri Lanka, notwithstanding the fact that he is, and continues to be, a citizen of any other country.

The Minister may make the declaration for which the application is made if he is satisfied that the making of such declaration would, in all the circumstances of the case, be of benefit to Sri Lanka. GR is said to have been issued with the Dual Citizenship Certificate on 21st November 2005. The Petitioners Viyangoda and Thenuwara argued that the said Dual Citizenship Certificate which reflects the resumption of the status of citizenship of Sri Lanka by GR is a nullity, for the reason that the newly elected President Mahinda Rajapaksa did not have the legal authority to sign the Dual Citizenship Certificate on the date that he is purported to have done so. The Petitioners argued that if GR does not enjoy the status of a citizen of Sri Lanka’, he would not be eligible to tender his nomination to contest the Presidential Election.

The old Article 44(2)

The Petitioners stated that they became aware of several issues pertaining to the resumption of citizenship of Sri Lanka by GR, through a news article titled ‘Officials wary to probe legality of Gota’s citizenship’ published in the Daily Financial Times of 5 August 2019 and that they were “deeply concerned” about the allegations contained in this article as there was a potential threat of a person who is not a citizen of Sri Lanka becoming the President of this country. The issue before the Court was whether on the relevant date – i.e. 21 November 2005 – the President could have exercised powers vested in a Minister under an Act of Parliament and in particular the Citizenship Act before the Cabinet had been appointed and subjects assigned to them under Articles 44(1) and 44(2) of the Constitution as they stood in 2005.

Article 44 (2) stated that the President shall remain in charge of any subject or function not assigned to any Minister under the provisions of Article 44(1), which means that the President is the repository of Executive power. Thus, during the intervening period of a few days between the new President having assumed office and his having appointed the Cabinet of Ministers and assigned subjects and functions to them, it was the view of this Court that the Constitution had conferred a duty on the President to be in charge of all such subjects and functions not assigned to any Minister. It is therefore the view of this Court that the language in Article 44(2) read with Article 4(b) of the Constitution provides ample textual support for the proposition that following the assumption of office, the newly elected President could have exercised powers conferred on a Minister by any written law until the Cabinet of Ministers was appointed. In In the above circumstances, President Mahinda Rajapaksa as the repository of the Executive power of the people, had the legal authority in terms of the Constitution to sign GR’s Dual Citizenship Certificate on 21 November 2005.

The Petitioners had raised the issue of certain discrepancies in the entries made in the ‘Dual Application Register’ for the period 1st January 2005 to 4 December 2007 and that the original file which ought to have contained the Application ostensibly filed by GR, the internal entries of that department and the ‘file copy’ of GR’s Dual Citizenship Certificate was not available at the Department of Immigration and Emigration. With regard to this, the Court observed that the CID was making a criminal investigation into the matter and that there is still no incontrovertible evidence before this Court regarding the factual position pertaining to such disputed matters and that the Court cannot be expected to go on a voyage of discovery and arrive at factual findings relating to disputed facts. The Court observed that it does not wish to base its findings on disputed facts, which are still under investigation by the police and that the Appeal Court order would not have any bearing on the continuation on the CID investigation.

Polluting the pure stream of Justice

GR’s lawyers argued that it was a politically motivated case and that the Writ Application had been filed strategically at the eleventh hour to put GR out of the fray for the presidency. They had tendered a Compact Disc with a transcript containing a speech made by a prominent member of a rival political party indicating in advance the date of filing this Application through the two Petitioners. In this context, the Court observed that the disputed dual citizenship certificate is dated 21 November 2005 and the Application to the Appeal Court has been filed only on 27 September 2019, i.e., almost 14 years later stating that there is a grave urgency to support this matter for notice and interim relief as nominations for the Presidential Election have been called for on 7 October 2019. That means the Petitioners strategically filed this application giving only six working days (including the date of filing the application) prior to the nomination date to decide the matter for Notice and interim relief.

The Court observed that the Petitioners had not stated a word about the delay in filing the Petition, but impliedly expected the Court to believe that they came to know about the question of GR’s dual-citizenship through a Daily FT news item that appeared on 05 August 2019. The Court observed that if there was an unreasonable and unexplained delay, the Court could dismiss a Writ application in limine. Going by the Petitioners’ written complaints to the Police, they would have known about the question of dual citizenship by 6t August 2019, i. e. about two months before the filing action in Courts and that therefore, it was the view of the Court that there was an unreasonable and unexplained delay in filing this Application. GR’s lawyers had submitted that while rival parties are entitled to adopt their own strategies to achieve their political objectives, no one should be allowed to abuse the process of Court to achieve his or her ulterior motives.

The Court was inclined to accept the argument of GR’s lawyers that this is an Application filed for collateral purposes. The Court further observed that a party cannot ask for a Writ as of right. It is a discretionary relief as well as an equitable relief. When granting such a relief, the conduct of the party applying for it is intensely relevant. Quoting previous cases, the Court observed that “any person or persons seeking to invoke the discretionary powers of this Court … must come … with clean hands…” and further that “If any party invoking the discretionary jurisdiction of a court is shown to have attempted to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.”

Courtesy:The Island