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Lawyers for SLPP presidential hopeful Gotabaya Rajapaksa yesterday insisted that President Mahinda Rajapaksa was the repository of all executive power before a Cabinet of Ministers was appointed, and was therefore legally empowered to sign his brother’s dual citizenship certificate on 21 November 2005, the legality of which is being challenged in the Court of Appeal.
President’s Counsel Romesh De Silva, who explained the evolution of executive power of the President since the 1972 Constitution, said that the 1978 Constitution made it clear that the executive power of the people was exercised through the President. De Silva PC, arguing for Rajapaksa, who was the fifth respondent, decided he would avoid the question of whether the President had plenary powers, and insisted instead that in order to assign powers to Ministers, those powers must first be reposed in the President of the Republic. Article 44 (2) of the Constitution provides for how the President can assign Ministries and also how unallocated Ministries would remain with him, Counsel for Rajapaksa explained.
Counsel for Gotabaya Rajapaksa also raised a number of objections to the Writ Petition, setting out legal and logical reasons for why President Rajapaksa had the power to sign his brother’s dual citizenship certificate on 21 November 2005.
“The pre-19th Amendment Constitution makes it clear that the repository of executive power is the President. He giveth and he taketh. He cannot give it, if he does not have it,” De Silva said.
He said that if the President could not exercise any ministerial powers between 18 November 2005 and 8 December 2005, several issues could arise in an emergency. “What if land had to be acquired and there was no Lands Minister to do it? Or what if there was a great flood, or some other calamity?”
“Executive power is reposed in the President through Article 4 (b) of the Constitution. If it takes a particular length of time to appoint a Cabinet, during that time, executive power is reposed in the President,” he explained.
Responding to a question posed by the Bench, De Silva submitted that the President was under no obligation under the Constitution to assign subjects and functions to Ministers. “If he has the power to retain, he is not obliged to assign all the Ministries.”
De Silva also submitted reasons that allowing the Petition would cause damage to people other than Gotabaya Rajapaksa. “Several people are in the (dual citizenship) register who received citizenship on that day. What happens to all of them?”
He said that his client had voted in Sri Lankan elections without anyone objecting that he was not a citizen, and that he functioned as Secretary to the Defence Ministry, “a position that can only be held by a citizen” without objection.
“I say that this Petition should be dismissed by your Lordships’ court in limine. The petition is mala fide and brought by political opponents,” De Silva charged. He produced photographs to the Court of the Petitioners in the presence of Prime Minister Ranil Wickremesinghe. “I don’t even know if Honourable Sajith Premadasa would like this,” he quipped.
De Silva also raised an objection that the Petition discriminated between the Third Respondent, Home Affairs Minister Wajira Abeywardena, and Fifth Respondent, former President and Opposition Leader Mahinda Rajapaksa. The Petition had referred to the Minister as “Hon. Wajira Abeywardena” and the former President merely as “Mr. Mahinda Rajapaksa.” De Silva highlighted the discrepancy to emphasise the allegation that the Petition was motivated by malice.
He took issue with a portion of the Petition wherein Petitioners Gamini Viyangoda and Prof. Chandraguptha Thenuwara stated that the election of a non-citizen as President would pose a threat to national security and the territorial integrity of Sri Lanka, saying that his client, former Defence Secretary Rajapaksa “almost gave his life for that.” Rajapaksa survived an LTTE suicide assassination attempt on his motorcade in December 2006.
De Silva highlighted a portion of the Petition in which the two civil society activists had stated they were “deeply disturbed” by news reports on 20 September that the Colombo Chief Magistrate had turned down a request by the Police to arrest his client. “Why should they be deeply disturbed? For what crime should he be arrested, when the CID had not even mentioned an offence?”
Recapping the alleged infirmities that he set out about the argument made by the Petitioners, De Silva said that these factors “proved the bad intention of the Petitioners to bring the case before Court on the eve of an election.”
A lighter moment during the day’s lengthy proceedings that continued till 6.00 p.m. was when De Silva PC inadvertently asserted that Gotabaya Rajapaksa had voted in the 2005 election, causing a flurry of excitement around the packed courtroom.
The inclusion of Rajapaksa’s name in the Medamulana household electoral list in 2005 has raised questions about whether he cast a ballot while being an American citizen, with the Elections Commission conducting an inquiry into the matter.
De Silva PC immediately corrected himself, saying Gotabaya Rajapaksa had voted in 2010, after the Bench clarified if it was Rajapaksa’s counsel’s position that he had voted in 2005.
SLPP Chairman G.L. Peiris remained in court throughout the day, while other SLPP stalwarts including Wimal Weerawansa, Udaya Gammanpila, Arundika Fernando, Keheliya Rambukwella, and Dulles Alahapperuma also attended hearings from time to time. Media barons Tiran Alles and Dilith Jayaweera also attended the sittings.
Romesh De Silva PC bemoaned the country’s lack of gratitude in respect of the service rendered by the former Defence Secretary. “It is because of him that we are even having this election. Otherwise we might have been overrun by others. We must be grateful. Sri Lankan blood doesn’t have gratitude,” he said.
Lawyers for Gotabaya Rajapaksa also criticised the Daily FT for its original 5 August coverage of the former Defence Secretary's citizenship and immigration issues, which was attached to the Petition filed by the civil society activists.
The news report contained all the information the Department of Immigration had presented to Court, De Silva PC said, adding that Minister Wajira Abeywardena should conduct an investigation on how this information had been given to the press.
