Chanaka de Silva PC appearing for the third respondent- Home Affairs Minister Vajira Abeygunawardena today formulated the argument that the President had no plenary executive power, but a power that should be interpreted in the backdrop of democratic governance, and also such powers should be construed reading all the relevant sections of the Constitution together.
At the onset of the inquiry, he stated that this petition is of primary importance as it is relating to the eligibility requirement of a person who is contesting to the most important position of the country.
Reading the initial preamble-Swasti in the 1978 Constitution, he described that the intention of the Constitution was to constitute Sri Lanka into a 'democratic' country but not to confer power to one person creating an autocratic authority.
He explained that 'plenary power' is defined as the unqualified complete power, and that is not the intention of the constitution as stipulated in the preamble.
He also argued saying that there is no executive plenary power given to the President under Article 4(b) and 30(1) of the Constitution, as one cannot merely look into the wordings of those articles without looking into the construction of the executive power in the constitution, because in 2005 there were several other chapters which dealt with the executive powers and therefore, they all should read together.
He pointed out Article 42 and 43 of the Constitution and said that those articles have put the responsibility on the executive as the president and also as the cabinet, and therefore, Articles 4(b) and 30 alone cannot interpret that the president has all the plenary executive power.
He also said that under Article 30 it says that President is the head of the executive and not as he is the executive.
So executive powers cannot be plenary and it should come from the constitution or an act not like United Kingdom's monarchical power, he said.
Focusing on Article 44 (1) (2), which provided then-president to assign ministries and remain unallocated ministries under him, Mr. De Silva was of the view that that article's subsections must-read simultaneously and not independently.
Citing various precedents, he said that the Constitution does not provide unfettered repository executive power on the president. And he cannot function in those ministries before the cabinet is appointed.
At this moment, Court of Appeal President Yasantha Kodagoda questioned as to what would happen between the time when a new president assumes duties and the appointment of the ministries if the president has no residual power over all the executive.
PC Chanaka de Silva replied that state mechanism doesn't stop because state actors are not appointed. For instance, all the public service and the other heads of the departments function without problem in those moments, all they have to do is wait for a few days till the president appoints the cabinet, he said.
When there is no cabinet, the president's most singularly important thing to do is to appoint the cabinet according to the law, unless there is a serious threat to the security, he said.
He also mentioned that there was a time when a former president was assassinated and later there was a time period where there was no head of the executive, but the functioning of the government maintained without a problem, he stressed.
Therefore, he formulated the argument that the President had no plenary executive power, but a power that should be interpreted in the backdrop of democratic governance, and also such powers should be construed reading all the relevant sections of the Constitution together. (Shehan Chamika Silva)