Election-eve legal showdown at Court of Appeal | Sunday Observer

Election-eve legal showdown at Court of Appeal

6 October, 2019
Gotabaya Rajapaksa walks out of the Special High Court in Hulftsdorp surrounded by bodyguards.  Pic courtesy: RepublicNext
Gotabaya Rajapaksa walks out of the Special High Court in Hulftsdorp surrounded by bodyguards. Pic courtesy: RepublicNext

The past week will go down in the annals of Sri Lankan presidential history, for the sheer disruptiveness that caused chaos and trepidation in the campaign of a main political party.

The SLPP was the first to name its presidential hopeful, taking the proverbial bull by its horns on August 11, more than a month before the Elections Commission declared the poll officially open. Gotabaya Rajapaksa’s presidential campaign had been in the works for over a year, and his brother the former President Mahinda Rajapaksa, finally agreed to anoint him at the SLPP convention at Sugathadasa Stadium. “He is not my choice,” Rajapaksa senior noted, “he is your choice” as he invited Gotabaya Rajapaksa on stage to bestow the mantle of Pohottuwa presidential candidate.

But on September 27, activists Gamini Viyangoda and Prof. Chandraguptha Thenuwara threw a major spanner in the works of the Gota 2020 campaign, when they filed a writ application in the Court of Appeal challenging the validity of the former Defence Secretary’s Sri Lankan citizenship, an issue that went straight to the core of Rajapaksa’s eligibility to contest in the November 16 presidential election.

A three-judge bench of the Court of Appeal held hearings on the petition for three days. Viyangoda and Thenuwara were seeking interim relief – that if granted, would mean Gotabaya Rajapaksa could not function as a citizen until the case was heard and determined – ergo, he could not have handed in nomination papers tomorrow with the other candidates. Nominations close at noon tomorrow.

The Court of Appeal ultimately ruled in Gotabaya Rajapaksa’s favour. Reasons for the order will only be delivered in writing later, based on an agreement reached when all counsel approached the bench, given time constraints.

But until the order was delivered, in a packed courtroom at 6PM on Friday, the Pohottuwa campaign went into a tailspin of ‘I told you sos’ and contingency plans.

Just two hours before the order on the petition was delivered by a three-judge bench of the Court of Appeal, the SLPP took an extraordinary step. An obscure party made a deposit on behalf of the eldest Rajapaksa sibling and former Speaker of Parliament, Chamal Jayantha Rajapaksa. The Pohottuwa campaign was not taking its chances on the Court of Appeal ruling. If Gotabaya Rajapaksa was unable to hand in nominations as a result of the court order, the SLPP needed to have another candidate ready to go on Monday. Deposits for candidates could be made till noon on Sunday, so technically the SLPP had plenty of time after the court ruling was delivered to put contingency plans in motion.

The legal showdown in the Court of Appeal was a David and Goliath style mismatch, with five President’s Counsel appearing for Gotabaya Rajapaksa and his brother the former President, including Romesh De Silva PC, Ali Sabry PC, Gamini Marapana PC and Naveen Marapana PC and Palitha Kumarasinghe PC. Attorney at Law Suren Fernando, appeared for the petitioners, while Chanaka De Silva PC served as private counsel for Minister Wajira Abeywardane. But around at 1.45 PM on Friday, to anyone observing proceedings in Courtroom 301 of the Superior Courts Complex, it appeared that the five President’s Counsel representing Mahinda and Gotabaya Rajapaksa had been beaten on legal arguments.

After much ado about irregularities pertaining to Gotabaya Rajapaksa’s dual citizenship files and computer data records and other discrepancies, the high stakes legal action finally came down to one simple question. Did Mahinda Rajapaksa, who assumed office as President on November 19, 2005, have the power to sign Gotabaya Rajapaksa’s dual citizenship certificate as Minister on November 21, 2005?

Lawyers for Rajapaksa insisted that under Article 4 (b) of the constitution, the President was the sole repository of all executive power. He could only set up ministries and assign subjects and functions to those ministries and assign ministers to the ministries, because they were all reposed in him in the first place. The Attorney General went down a slightly different path, arguing that the President had “plenary executive power” and therefore, was lawfully mandated to do as he pleased about all and any ministries and their subjects the moment he assumed office. Counsel for Rajapaksa, led by Romesh De Silva PC, insisted that the constitution laid out that the “executive power of the people, shall be exercised by the President of the Republic elected by the People.”

Romesh De Silva PC told Court that until such time when the President decided on ministry assignment, all of the powers to be delegated to the Cabinet of Ministers and the public service, remained in his charge. This was why pre 19th Amendment, Article 44 (2) read that any subjects and functions not assigned to ministers, would “remain” in the President’s charge. He also insisted that the SLPP and the 21 other people who had obtained dual citizenship certificates on the same day – November 21, 2005 – should have been made party to the case. The omission of parties adversely affected from a petition was “fatal” to a writ application, De Silva PC said, and could not be cured.

On Thursday (3), Chanaka De Silva PC, appearing for Home Affairs Minister Wajira Abeywardane, put forward cogent arguments that dealt comprehensively with the AG’s assertion that the President held plenary executive power. Chanaka De Silva PC pointed out that a seven judge bench of the Supreme Court, in its judgment on the illegal dissolution of Parliament in November 2018, had “emphatically rejected” the notion put forward by the AG in that case also, that the president of the Republic held plenary executive power.

Plenary was defined as “full, entire, complete, absolute and unqualified”, De Silva PC explained, the Counsel for the Home Affairs Minister noted. Going into a detailed explanation, De Silva PC explained that the 1978 Constitution, which included the 17th Amendment, included four chapters that deal with the President, the Constitutional Council, the Cabinet of Ministers and the Public Service.

“All these form part of the Executive. That is the structure of the executive. All these arms derive their power from the Constitution. Not from the President. The source of their power is the Constitution,” he argued. The President was constitutionally mandated to appoint a cabinet of ministers, and it was the Cabinet that was charged with the direction and control of Government. The framers of the constitution had never intended to set up a one-man dictatorship, De Silva PC pointed out.

The next day, after Counsel for Gotabaya Rajapaksa raised a host of preliminary objections, Counsel for the Petitioners, Viyangoda and Thenuwara, attorney-at-law Suren Fernando was permitted time to reply.

President of the Court of Appeal, Justice Yasantha Kodagoda who was leading the three judge bench, urged Fernando to stick to the main crux of the case, which was whether the President could act as Minister in the period between cabinet being dissolved and reappointed, in order to determine whether President Mahinda Rajapaksa was in fact empowered to sign the dual citizenship certificate the petitioners were seeking to impugn.

In a 30 minute quick-silver submission, Fernando said that in its determination on the 19th Amendment Bill, the Supreme Court had to consider whether the President was the repository of executive power. The 19th Amendment had repealed Article 44(2), and if President was the repository of executive power under Article 4 (b), the removal of that section would have required a referendum. The SC determination was that the President was responsible to Parliament and that Cabinet was collectively charged with the direction and control of the Government. The Supreme Court, in its ruling on the 19A Bill, “established conclusively that the president is not the sole repository of executive power under the constitution. It is the cabinet of ministers and not the President alone which is charged with the direction and control of Government”.

“The President was not the repository under normal circumstances, and he is not the repository in the interregnum between dissolution and reappointment of cabinet either,” Counsel for the petitioners argued.

As soon as the President assumed office he laid claim to some powers, Fernando explained. He had the power to appoint a Prime Minister, and the power to appoint ministers. “He had no power to lay claim to subjects and functions until an assignment was made,” he insisted.

Taking issue with a popular argument made by counsel for Gotabaya Rajapaksa, Fernando insisted that in times of calamity, the president was not powerless. He had power under the Public Security Act and the power to make Emergency Regulations. He could also call out the armed forces and entrust the armed forces with police powers. “Post enactment of the 19th Amendment, when the President cannot hold ministries, are we facing that kind of peril?” Fernando queried.

Responding to claims by Counsel for Rajapaksa that the legal action would throw doubt on the 10 years his client held office as Defence Secretary, Counsel for the Petitioners said that there was no legal requirement that secretaries to ministries had to be Sri Lanka citizens. “However, what the law does make mandatory is that in order to contest elections, the candidate must be a citizen of Sri Lanka,” Fernando pointed out.

Also addressing the question of why 21 other people who obtained Dual citizenship certificates on the same day as Gotabaya Rajapaksa were not made parties to the case, Counsel for the petitioners said that records from state authorities showed clear manipulation of records. His clients did not know where the 21 other persons were, or how to reach them, so they could not be made parties to the case, he argued.

“We do know that those people were not the President’s brother,” Fernando said. The dual citizenship conferred upon Gotabaya Rajapaksa had been processed over a weekend in undue haste without appointing a Cabinet, he pointed out. “The President was exercising power on behalf of his brother,” Fernando emphasized, shortly before concluding his rebuttal.

In a unanimous decision, the judges dismissed the highly charged election-eve petition. Their reasons for the decision will be laid out in a detailed order expected early this week. But where the legal action may have failed in the first instance in the Court of Appeal, the Viyangoda-Thenuwara petition had lasting effects; it set the cat among the pigeons in a major presidential election campaign, and sent a clear message to politicians across the divide, that an empowered and free-thinking citizenry would not hesitate to ask difficult questions and subject to scrutiny those who seek to hold the highest office of the land.