Fmr. President exercised plenary Executive powers: AG
Posted on October 2nd, 2019
Courtesy The Daily Mirror
Appearing for the Attorney General, Senior Deputy Solicitor General Nerin Pulle today told that the former president, who had signed the dual citizenship certificate of Gotabaya Rajapaksa in 2005, actually had the power to do so as the relevant minister, because he had continued to exercise being the head of the government and the executive even in absence of a cabinet at that time.
Appearing for the petitioners, Counsel Suren Fernando at the onset of the writ inquiry stated 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 had to obtain a dual citizenship status by applying to the relevant Ministry, in order to obtain a new Passport and a National Identity Card, because he was no longer a citizen of Sri Lanka at that time.
Mr. Fernando stated that, thereafter, Gotabaya Rajapaksa had possibly applied for a dual citizenship certificate to the relevant Ministry during the time period November 18 – 24, 2005, soon after his brother, Mahinda Rajapaksa was elected as the President of Sri Lanka.
He said that Mahinda Rajapaksa was the Prime Minister prior to him having assumed office as President of Sri Lanka in 2005 November. Therefore, upon his assuming the office of President, Mahinda Rajapaksa ceased to be a member of Parliament and ceased to be the Prime Minister of SL. (after November 18, 2005)
Upon Mahinda Rajapaksa assuming office as President soon after the election on November 18, 2005, the Cabinet of Ministers stood dissolved. According to Mr. Fernando, the new Prime Minister, Ministers and assigning of the subjects to the Ministries took place, on November 21, 23 and December 08 respectively.
So he stressed that there was no cabinet and therefore no Ministers or secretaries were functioning when Gotabhaya Rajapaksa’s dual citizenship certificate was issued.
He said that the impugned dual citizenship certificate had been signed for the relevant ministerial secretary by the then President and thus such secretary cannot function by the operation of law under the constitution.
Court of Appeal President Yasantha Kodagoda brought a question at this moment on the fact that whether there was any residual power vested upon president to exercise the executive arm of the government in the absence of the cabinet.
Counsel Fernando replied that the 1978 constitution is a combination of both Westminster and presidential systems of governance and that it’s intention was not to provide such powers to execute by one person. And he also stressed on the fact 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 he said that the former President could not have exercised such powers in the absence of a cabinet.
Consequently, he requested to grant interim reliefs as the impugned dual citizenship certificate, on the face of it (ex facie) void and is nullity in law.
However, Senior Deputy Solicitor General Nerin Pulle informed the Attorney General’s stance on the issue differently.
He Appeared for the Attorney General, on behalf of the Respondents-Controller General of Immigration and Emigration Department (1), Commissioner General Department for Registration of Persons (2),Secretary Ministry of Internal and Home Affairs (4), Acting Inspector General of Police (7), Ravi Seneviratne- SDIG CID (8), G.S. Abeysekara – Director CID (9), and Lalitha Dissanayake – OIC – Special Branch CID (10).
He said dual citizenship concept was first introduced to the Citizenship Act with the amendment made in 1987 and it stipulates two requirements to obtain a dual citizenship certificate. First there has to be an application addressed to the relevant minister and then the minister has to make a declaration on the dual citizenship.
On that background SDSG Nerin Pulle said that a dual citizenship certificate did not need the signature of a secretary but only the authorization of the relevant minister.
He said, in this impugned certificate the former President had signed it as a minister which he could do according to certain constitutional provisions.
He disputed the petitioner’s stance and said that 1978 constitution is not a hybrid system but a presidential form of governance based constitution. The president is the head of the executive elected by the people according to the constitution thereby he possesses a plenary executive power.
He referred to the Article 30(1) of the constitution and said that the president is the head of the state, government and the executive, and therefore, even in the absence of a cabinet he is the head of the executive with executive plenary powers.
SDSG also referring to the Article 44(2) of the Constitution which was in existence in 2005 ( this article was amended after 19 amendment) said that the President could continue to function all the executive powers as the head of the government and the executive, until the new cabinet is appointed. ‘So in this case, the president had signed the certificate as per citizenship Act in the ministerial capacity and therefore the requirements to obtain dual citizenship certificate had been fulfilled as per law”, he said.
He also stated that the reliefs sought in the petition is dealt with the statutory powers confered to the respondents and there for seeking writ of prohibition on his respondents is questionable.
Meanwhile, During his submission, the SDSG also made a comment that, the original docket pertaining to Gotabaya Rajapaksa’s dual citizenship issue is not in possession at the moment to produce before the court.
Article 44(2) of the Constitution which was in existence in 2005 said that the President could continue to function all the executive powers as the head of the government and the executive, until the new cabinet is appointed. So in this case, President had signed the certificate as per citizenship Act in the ministerial capacity and therefore the requirements to obtain dual citizenship certificate had been fulfilled as per law. (Shehan Chamika Silva)
| Objection over maintainability of writ petitionRomesh de Silva PC appearing for Gotabaya Rajapaksa in the writ petition today brought up a preliminary objection over the maintainability of the writ application on several grounds.He said the petition cannot seek the relief sought in the petition as they do not have the locus standi (right to bring the action) in the first place.Mr. De Silva said that the subject matter relating to the petition is identical to investigation which is still in progress at the Chief Magistrate’s Court and therefore, without such investigation being come to a conclusion the petitioners cannot invoke writ jurisdiction and seek reliefs.He was of the view that the petition has been filed mala fide by politically motivated intentions as there was unexplained delay in filing the case after a long time since 2005.Gamini Marapana PC who appeared for former President Mahinda Rajapaksa also said that the petitioners should have waited till the investigation is concluded on this matter at the magistrate’s court. If the investigation finds that there is no wrongdoing, then what would happen? Only the people’s right to vote what they want may be deprived from this” he said.The three Judges Bench comprising, Justices Yasantha Kodagoda (President/CA), Arjuna Obeysekara and Mahinda Samayawardena however, decided to consider the petitioners’ stance and the preliminary objections both together heard the petitioners’ and Attorney General’s stance today.Other respondents address the court from 1.30 p.m. today over the writ application which was filed disputing the citizenship status of Gotabaya Rajapaksa. (Shehan Chamika Silva) |
October 2nd, 2019 at 3:23 pm
The Laws of a country are there to serve the people and the nation as a whole and not vice-versa. Granting of Dual Citizenship to Gotabhaya Rajapakse took place at a time of war and the President of the country needed the services of his brother to fulfil a highly confidential as well as critical position for the war effort. The nation of Sri Lanka is all privy to the role performed by Gotabhya in that position and the successful conclusion of a war effort which was deemed impossible even by all-knowing war pundits in Sri Lanka and abroad.
Even otherwise to my knowledge, a position in an administration does not go vacant due to the absence of the usual operator. At all times an administration exists in a country – even during the transition period between two administrations!
What is termed, as “residual responsibility” remains at all times to continue the necessary services. In this case, it is apparent that the President as the Head of the Cabinet and as the Commander in Chief of the Armed Forces has taken over that responsibility and acted quite correctly to enable him to fill the vacancy of the Secretary of Defence in the most timely manner.
Moreover, the petitioners had nearly fifteen years to bring this matter before courts if indeed they genuinely thought that an infringement on the law of the land has taken place. To bring such an accusation at the cusp of an election to a popular leader can only be considered an act of malice and an attempt to deprive the voting public their democratic choice at the coming Presidential Election on 16 November this year.
These very same petitioners were so curiously silent when the then Prime Minister Ranil Wickramasinghe (- appointed without a majority by a President who has now become a hateful court jester) unlawfully took over part of the Finance Ministry that included the Central Bank under his authority and robbed and pauperised an entire nation in terms of direct losses in the Bond Market, raised interest rates in the banks and in general all taxes.
It is now common knowledge how he went on to put in place a well-planned fraud on the people of Sri Lanka, now infamously called the Central Bank Bond Scam. As a part of this fraud, he also appointed a non-citizen to the position of the Governor of the Central Bank, Arjuna Mahendran who is now a fugitive before the law. Not only did they rob the Central Bank once in February 2015, the similar but more disastrous fraud was committed in March 2016 while still keeping the same Governor in charge of the Central Bank.
The NGO Dollar Wallahs know their time to make dollars is fast coming to an end and are doing their utmost to fulfil the wishes of their masters the traitorous murderous UNP and their masters – the Christian Western Powers!
October 4th, 2019 at 12:30 pm
I PREDICTED this CLEARCUT decision by the Supreme Court, assering that Mahinda as the Executive President of Sri Lanka had the FULL and COMPLETE AUTHORITY to grant dual-citizenship to Gotabhaya in the NATIONAL INTEREST as VINDICATED by Gota’s SUBSEQUENT PERDORMANE in office.
This EASY PREDICTION was made in opposition to various contrary arguments advanced by both Dilrook and Randeniyage in their ongoing quest to UNDERMINE Gota’s CANDIDACY for the Presidency of Sri Lanka!!
The Supreme Court DISMISSED OUT OF HAND without EXAMINATION of WITNESSES or ISSUING a TEMPORARY INJUNCTION, demonstrating with CRYSTAL CLARITY the lack of a BASIS IN FACT in the case filed before it.
ONCE AGAIN, the DESPARATE Yamapalanaya BITES THE DUST in its desperate effort to PREVENT Gota from DEMOLISHING ALL OTHER CANDIDATES at the Presidential hustings!
JAYAWEWA Deshapremini, Jayawewa! Apey Uthum Aaadaraneeya Maubima Deshapremi APEY ATHATA NAVATHATH LABENA BAWA SAHATHIKAI!!