Appearing for the respondent- Gotabaya Rajapaksa, Romesh de Silva PC, addressed the issue in regards to the then-president having repository executive powers to exercise all executive powers in the absence of a cabinet.
He said that in 1972, the people of Sri Lanka got together and created a forum to formulate the first constitution and that people's sovereign power was thereafter given to the National State Assembly (then parliament).
Thereafter, J. R. Jayawardene had brought several amendments to that first constitution and divided the sovereign power into three categories - namely executive, legislative and the judiciary.
Mr. De Silva said thereby the executive power which was directly derived out of the people was exercised by the president.
So, keeping in mind that people's sovereignty as the executive power was exercised by the president, one should read Article 30, and 44 of the Constitution, he said.
Under Article 44 (2), it provides as to how the president can assign ministries to form the cabinet. This article provides also that he can keep the un-allotted ministries.
Mr. De Silva said this retention of the ministries itself was self-explanatory as one can only assign or give something if it is a repository. The president is the all executive repository power in the country, he said.
At this point, Justice Yasantha Kodagoda questioned whether it was the sequel to the executive power conferred to the president. Mr. De Silva replied that it was the power that the president had 'even in a worst-case scenario if such assignment of ministries was obliged to be done by the president under Article 44 (1), still those un-allotted ministries stay with him because he had the power to have them previously', he said.
Justice Kodagoda also asked the counsel whether the Constitution regulates the President to appoint the cabinet soon as he assumed duties?
Romesh de Silva PC replied, 'No, it has to be within a reasonable time. Sometimes politicians take some time to decide on the ministries, so such decisions may take a while, and until that time the President had the repository executive power to hold all ministries'.
However, during this submission, the Court also pointed out to the fact whether there is a necessity on getting an interpretation from the Supreme Court over Article 44, as there was some different wording found in the English and the Sinhala text.
However, counsel for the respondents said there was no such requirement as it should be done only if there is manifestly ambiguous meaning in the article and therefore the court can decide on the matter. (Shehan Chamika Silva)