A court order that everyone should read

The order of the Court of Appeal on the Writ Application (No. 425/19) filed by Gamini Viyangoda and Prof. Chandragupta Thenuwara, seeking the grant of mandates in the nature of Writs of Certiorari and Prohibition in respect SLPP presidential candidate Gotabaya Rajapaksa’s dual citizenship is sure to go down in the annals of legal history as a path-breaking one.

The Court of Appeal bench comprised Yasantha Kodagoda, P.C., President of the Court of Appeal, Mahinda Samayawardhena, Judge of the Court of Appeal Arjuna Obeyesekere, Judge of the Court of Appeal

The respondents were as follows:

1. M. P. S. B. Rathnayake, Controller General of Immigration and Emigration, Department of Immigration and Emigration.
2. Viyani Gunathilaka, Com missioner General, Department for Registration of Persons
3. Vajira Abeywardena, Minister of Internal and Home Affairs and Provincial Councils and Local Government.
4. Gamini Senevirathna, Secretary, Ministry of Internal and Home Affairs and Provincial Councils
5. Nandasena Gotabaya Rajapaksa,
6. President Mahinda Rajapaksa,
7. D. Wickremaratne, Acting Inspector General of Police
8. Ravi Seneviratne, Senior Deputy Inspector General of Police Criminal Investigation Department.
9. S. Abeysekera, SSP Director, Criminal Investigation Department.
10. Lalitha Dissanayake, Officer in Charge, Special Branch, Criminal Investigation Department

It was for the first time, in the history of this country, that the exercise of the executive powers by a President, during the period between his inauguration and the appointment of the Cabinet of Ministers, was legally challenged. The issue would never have come to light but for the fact that the person (Gotabaya) who benefited from the Presidential action at issue had not been nominated to run for President.

The Petitioners’ primary contention was that on 21 Nov. 2005, the then President Mahinda Rajapakasa did not have any legal authority to sign the dual citizenship certificate of his younger brother, Gotabaya Rajapaksa, who was a US citizen at that time, because he was not constitutionally empowered to exercise the powers of a minister before the appointment of the Cabinet of Ministers. They maintained that, therefore, the dual citizenship certificate of Gotabaya was not legally valid, and the national identity card and the Sri Lankan passport he had been issued with on the basis of that document were also unlawful. They argued that they were deeply concerned as there was a potential threat of a person who was not a Sri Lankan citizen becoming the President of the country.

The Petitioners filed a writ application seeking the following reliefs: a Writ of Certiorari to quash Gotabaya’s dual citizenship certificate, a Writ of Certiorari to quash his passport and a Writ of Certiorari to quash his National Identity Card.

Main issue before Court

The main issue before the Court of Appeal was whether on 21 Nov. 2005 President Rajapaksa, who had just been sworn in on 19 Nov. 2005, had the legal authority to exercise powers vested in a minster under an Act of Parliament and in particular the Citizenship Act, without having first appointed the Cabinet of Ministers.

The Appeal Court makes it very clear, in its judgment, that the complaint of the Petitioners relates to event that transpired, in 2005, and a consideration by the court of the complaint of the Petitioners requires the court to consider the provisions of the Citizenship Act and the Constitution as they stood in 2005.

The Counsel for Mahinda and Gotabaya and the Deputy Solicitor General appearing for several other respondents countered the Petitioners’ arguments on the basis of two basic propositions:

• The President has plenary executive power, and
• The President is the repository of executive power.

The Court of Appeal, going by the Supreme Court’s explanation of plenary power in Sampanthan Vs Hon. Attorney General and others and Nallaratnam Singarasa Vs Hon. Attorney General, pointed out that the power exercised by the President was circumscribed by the Constitution. It said that, it could not, therefore, agree with the first part of the submission of the Deputy Solicitor General and the Counsel for Mahinda and Gotabaya, premised on the footing that the President was conferred with ‘plenary executive power’, which empowered and, therefore, enabled him to issue the dual citizenship certificate at issue.

The Court of Appeal then considered the second argument advanced, on behalf of the Respondents except Minister Vajira Abeyewardene; the President is the repository of executive power. The Counsel for the Respondents and the Deputy Solicitor General put forth the following arguments:

1. It is the people who are sovereign, and not the Executive President
2. Sovereignty of the people shall be exercised and enjoyed in the following manner
3. Legislative power through Parliament
4. Executive power through the President

• Judicial power through Courts

3. Article 4 (b) of the Constitution reads as follows:

“The executive power of the people, including the defence of Sri Lanka ‘shall be exercised by the President of the Republic elected by the people’. [Emphasis added]

4. The fact that Article 44 (2) states that the President ‘shall remain in charge of’ any subject or function not assigned to any Minister under the provisions of Article 44 (1) means that the President is the repository of executive power. The word ‘remain’ connotes ‘continuity’, and is linked to Article 4(b).

5. The fact that the President has the power to assign any subject or function to himself or other Ministers means the President is the repository of power.

In response to the aforesaid arguments, the Counsel for the Petitioners drew the attention of the Appeal Court to the determination of the Supreme Court in Re Nineteenth Amendment to the Constitution where the Supreme Court held as follows:

“The first two Articles in Chapter VIII of the Constitution are of crucial importance in describing the structure in which executive power was sought to be distributed. Article 42 states “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security”. Thus, the President’s responsibility to Parliament for the exercise of Executive power is established. Because the Constitution must be read as a whole, Article 4 (b) must also be read in the light of Article 42. Clearly, the Constitution did not intend the President to function, as an unfettered repository of executive power unconstrained by the other organs of governance. (Emphasis added)”

The Court of Appeal has observed that the above statement is clearly in the context of the President’s powers being fettered. The point made by their Lordships is to strike down the idea of an unfettered repository of Executive power, and not to deny that the President is the repository of executive power conferred on him by the people through the Constitution.

The Petitioners also relied on the following passage in Re Nineteenth Amendment to the Constitution, where, having referred to Article 43, the Supreme Court went on to state as follows:

“This important Article underscores that the Cabinet collectively is charged with the exercise of Executive power, which is expressed as the direction and control of the Government of the Republic and the collective responsibility of Cabinet, of which the President is the Head. It establishes conclusively that the President is not the sole repository of Executive power under the Constitution. It is the Cabinet of Ministers collectively, and not the President alone, which is charged with direction and control of Government.”

“Therefore the Constitution itself recognizes that Executive Power is exercised by the President and by the Cabinet of Ministers, and that the President shall be responsible to Parliament and the Cabinet of Ministers, collectively responsible and answerable to Parliament with regard to the exercise of such powers.” (Emphasis added)

The Counsel for the Petitioners also referred to the dissenting view of Wanasundera, J in Re 13th Amendment to the constitution, where he held that the “provisions of the Constitution amply indicate that there cannot be a government without a Cabinet… To take any other view is to sanction the possibility of establishing a dictatorship in our country, with a one man rule.”

The Court of Appeal has observed, in its order: “It must be remembered that the above statement has been made in the contest of the general situation where a Cabinet exists. It is unhelpful to rely on the general situation when this application involves a specific situation that had occurred when a Prime Minister was elected the President and the resulting gap between the election of the president and the appointment of a Cabinet afresh’. The Court has said that ‘it is satisfied that as the Constitution stood at the time of the impugned conduct of the 6^th Respondent, the President as the custodian of the Executive power of the People was the repository of the said Executive power. It is the Constitution that has reposed such power on the President ….’

Referring to the contention of the Counsel for Mahinda and Gotabaya, and the Deputy Solicitor General appearing for other Respondents, that Article 44 (2) clearly provides that the President shall remain in charge of any subject or function not assigned to any minister, the Court of Appeal has said it is of the view that ‘the Constitution has conferred a duty on the President to be in charge of all such subjects and functions not assigned to any Minister.’

The Court of Appeal conclusion is as follows:

“In the above circumstances, it is the view of this court that the 6^th Respondent [President Mahinda Rajapaksa], as the repository of the Executive power of the people, had the legal authority in terms of the Constitution to sign the ‘Dual Citizenship Certificate’ ‘P13” on 21^st November 2005 and that the argument of the Petitioners that ‘P13’ is a nullity therefore had no legal basis.”

Discrepancies

The Court of Appeal, however, noted that the Petitioners had ‘brought to light that there are certain discrepancies with regard to the entries made and found in document marked 1R1, captioned ‘Dual Application Registration for the period 1st January 2005 to 4^th December 2007.’ The Counsel for the Petitioners and the Counsel for Respondent, Minister of Internal and Home Affairs and Provincial Councils and Local Government Vajira Abeywardena, submitted that ‘there are discrepancies in certain entries in the said Register (the orginal of which was presented to Court by the 1^st Respondent, [Controller General of Immigration and Emigration R. M. P. S. B. Rathnayake]) and certain information contained in ‘P13’ and data entry sheets maintained in the digital database of the Government institution headed by the 1^st Respondent, namely the Department of Immigration and Emigration.’

The Counsel concerned, the Court has said in its order, invited it to consider the alleged discrepancies, particularly against the backdrop of the position taken up by the 1^st Respondent that the original file which ought to have contained the application, ostensibly filed by the 5^th Respondent [Gotabaya], internal entries of that department and the ‘file copy’ of ‘P13’ not being available at his institution. The Counsel for Mahinda and Gotabaya maintained that ‘there was nothing suspicious in the entries found in the afore-stated documents’ as seen from reports filed in the Magistrate’s Court by the CID and the matter was currently being investigated. They argued that there was no incontrovertible evidence before the court regarding the factual position pertaining to such disputed matters.

The Appeal Court judgement says in its order that it has from time to time said that a prerogative and exceptional remedy in the nature of a mandate of a Writ would not lie based on disputed facts and it cannot be expected to go on a ‘voyage of discovery’ and arrive at factual findings relating to disputed facts and thus it does not wish to base its findings on such disputed facts, which are still under investigation by the police. The Court has said its Order will not have any bearing on the CID probe.

Delay in filing application

The Court of Appeal order says that there was an unreasonable and unexplained delay in filing the Application by the two Petitioners, given the facts of the case, especially the fact that nominations for Presidential Election were scheduled on 07^th Oct 2019.

Giving reasons for its conclusion, the Court says that even assuming what the Petitioners state in their written complaints to the 7^th Respondent – Acting Inspector General of Police – are correct, the Petitioners at least knew about the question of dual citizenship [of Gotabaya] by 06^th August 2019, i.e. about 2 months before the filling of the Application in Court.

The Petitioners have said in their application that having read about Gotabaya’s citizenship issue in The Daily Financial Times of 5^th August, 2019, they made two formal complaints dated 6^th August 2019 and 8^th August 2019 to the 7^th Respondent acting IGP Wickremaratne, as they thought it was undesirable and illegal for a non-citizen to be elected as the President.

Maintainability of the Application

The Court of Appeal order says that the Counsel for Gotabaya took up several preliminary objections as regards the maintainability of the Application, but did not press them to be decided before considering the merits of the Application as it might have given the wrong impression to the Court that 5^th Respondent could not defend himself on the merits of this application. The preliminary objections included the following:

1. Lack of locus standi on the part of the Petitioners to file the Application;
2. The Petitioners being manifestly guilty of lashes;
3. The non-joinder of necessary parties, in particular, the Sri Lanka Podujana Peramua, which would gravely be affected in the event the Court allowed the Application of the Petitioners:
4. Involvement of disputed questions of facts, which are still under investigation by the police, thereby making the invocation of Writ jurisdiction not legally possible;
5. The Petitioner being rendered ‘stateless’ in the event this Court grants the relief, which is against public policy, and in violation of international law:
6. The grant of the relief being in violation of the elective franchise of the people thereby depriving the voters an opportunity of casting their ballots for the candidate of their choice at the presidential election;
7. The impossibility in law to grant the reliefs as prayed for in the prayer to the Petition in particular that the grant of interim relief should not result in irreversible harm being caused to the interests of the 5^th Respondent;
8. The undesirability to exercise equitable jurisdiction of the Court by way of Writ in the given facts of this Application, which was filed mala fide by the political opponents for collateral purposes and not in the public interest.

The Court of Appeal has, after briefly dealing with a few matters, raised by the Counsel for Gotabaya, as they, in the view of the court, go to the root of the Application, arrived at the following decision:

“In the circumstances, we are inclined to accept the argument of the learned President’s Counsel for the 5^th Respondent and the learned President’s Counsel for the 6^th Respondent that this is an Application filed for collateral purposes and not a genuine public interest litigation filed by the Petitioners as ‘public spirited citizen[s] concerned to see that the law is obeyed in the interest of all.”

The following observation of the Court of Appeal is of interest:

“A party cannot ask for a Writ as of right. It is discretionary relief as well as an equitable relief. When granting such relief, the conduct of the party applying for it is intensely relevant.”

The Court of Appeal Order says, in conclusion, that the Court does not see any legal basis to issue formal Notice of the Application to the Respondents and the Application is accordingly dismissed. The Court makes no order with regard to costs.