Court rules President was repository of Executive Power until 2005 Cabinet appointed

• CA ruling no bar on criminal investigation into dual citizenship
• Says petition was not filed in public interest; filed too late

Nearly two weeks after it dismissed a writ application challenging the status of Gotabaya Rajapaksa’s Sri Lankan citizenship, the Court of Appeal yesterday issued a 43-page order, detailing the reasons the case was thrown out.

In its order, the bench held, with arguments made by counsel for the SLPP candidate, that the President was the repository of Executive Power under the terms of the pre-19th Amendment Constitution.

 As such, President Mahinda Rajapaksa, who had assumed office on 19 November 2005, had the power to sign Gotabaya Rajapaksa’s dual citizenship certificate on 21 November 2005, since ministries had not been assigned to a Cabinet of Ministers yet.

The Court of Appeal order in the writ application would have no bearing on the criminal investigation into the disputed dual citizenship certificate and related matters, currently being carried out by the Criminal Investigation Department, according to the court order read out by Court of Appeal President Justice Yasantha Kodagoda.

In its order, the Court also held two preliminary objections raised by lawyers for Rajapaksa.

The Court ruled that the failure of the petitioners to cite the Sri Lanka Podujana Peramuna as a party to the writ application was a “fatal omission” by the petitioners to the maintainability of the case, since the party would be affected if the Court had ruled against Rajapaksa.

The Court also held that there had been an unreasonable and undue delay in filing the petition before the Court of Appeal, even though facts pertaining to the case were in the public domain by at least 6 August 2019. Therefore, the Court was inclined to agree with the SLPP candidate’s lawyers that the petition was filed for collateral purposes and not genuine public interest litigation by the petitioners as “public-spirited citizens concerned to see that the law is obeyed in the interest of all”.

The case was heard by a bench comprising CA President Justice Yasantha Kodagoda, Justice Arjuna Obeyesekere and Justice Mahinda Samayawardhena.

In their writ application, the two civil society activist petitioners asked the Court to quash Rajapaksa’s dual citizenship certificate, NIC and passport since the certificate had no force or effect in law, having been signed when the Cabinet of Ministers was not in place. 

During the legal battle that played out over three days just ahead of nominations day, State authorities told Court that Rajapaksa’s dual citizenship files and applications were not in the possession of the authorities vested to hold the documentation. 

Petitioners Gamini Viyangoda and Chandraguptha Thenuwara argued that Rajapaksa was planning to contest the Presidential Election, and were seeking interim relief to prevent the “the grave and irreparable harm and damage that would be caused to them and the citizens of Sri Lanka if a non-citizen is permitted to contest for the presidency”.

Before taking the matter before Court, Viyangoda and Thenuwara lodged a complaint with the IGP after several media reports were published alleging issues pertaining to Rajapaksa’s dual citizenship certificate and how he obtained a new passport. CID investigations into the complaint revealed that the files pertaining to Rajapaksa’s dual citizenship records were missing. The petitioners filed their writ petition based on the CID’s two B reports to the Colombo Chief Magistrate’s Court.