15 October 2019 12:27 pm
The Court of Appeal (CA) today accepted the arguments of Romesh de Silva PC and Gamini Marapana PC that the writ application disputing Gotabaya Rajapaksa's citizenship was filed by the petitioners for collateral purposes and not as a genuine public interest litigation as 'public-spirited citizens concerned to see that the law is obeyed in the interest of all'.
The Bench comprising Justices Yasantha Kodagoda (CA/President), Arjuna Obeysekere and Mahinda Samayawardane also observed in the Order the fact that “a party cannot ask for a Writ as of right. It is a discretionary relief as well as an equitable relief. When granting such a relief, the conduct of the party applying for it is intensely relevant.”
Citing several precedents, the Court also had noted in the Order that “It is trite law that any person or persons seeking to invoke the discretionary powers of this Court, must come to Court with clean hands.”
Delivering the reasons for the order given on the writ application filed against Gotabaya Rajapaksa's citizenship, the Court of Appeal said during the time period where there is no Cabinet, the Constitution confers on the President to be in charge of any ministerial duty, as the repository executive power of the people, therefore, he had the power to sign the impugned dual citizenship certificate of Gotabaya Rajapaksa in 2005.
“ During the intervening period of a few days between the new President assuming office and appointing the Cabinet of Minister s and subjects and functions assigned to such ministers, it is the view of this Court that the Constitution had conferred a duty on the President to be in charge of all such subjects and functions not assigned to any Minister.”
However, the Court of Appeal also said the President should act during such an intervening period in a reasonable manner according to the Constitution. “It is not to say that the President can govern the country arbitrarily neglecting the appointment of the Cabinet of Ministers,” the Court said.
The Court of Appeal did not agree with the respondents’ argument that the President had the plenary power to exercise such power.
“It is important to note that the President does not derive the 'Executive' component of the people's sovereignty from any other source than from the Constitution and other written laws, and is circumscribed by the Constitution. Terefore, this Court cannot agree with the first part of the submission of the respondents which was premised on the footing that the President is conferred with 'plenary executive power', which enabled him to issue the 'Dual Citizenship”.
The Court further held that:
“The Constitution stood at the time of the impugned conduct of the President as the custodian of the Executive power of the People was the repository of the said Executive power. It is the Constitution that had reposed such power on the President. Thus, the issue is whether that power is fettered by Article 44(1) and (2) in the specific circumstances relating to this Application.”
Earlier, the petitioners' argument was that even if there is a legitimate delay in constituting the Cabinet of Ministers, there can be no "direction and control" of the Government of the Republic, and the powers vested in Ministers across numerous statutes shall be in limbo during the intervening period.
The Court held that, “If the Constitution had intended such restrictions to be placed on the person by whom the Executive power of the People is to be exercised, the Constitution would have set out a time frame for the appointment and the establishment of the Cabinet and the assignment of subjects and functions to Ministers, and would have placed restrictions on the exercise of Executive power du ring the intervening period pending the Cabinet being appointed”
Thus, the Court of Appeal was of the view that, “the newly elected President could have exercised powers conferred on a Minister by any written law until the Cabinet of Ministers was appointed.”
Addressing the preliminary objection that the application was filled strategically male fide (not in good faith) by the petition, the Court observed that “…the Petitioners at least knew about the question of dual citizenship by August 6, 2019; i.e., about 2 months before the filing of this application in this Court. Given the particular facts of this case, and especially the fact that nominations for the presidential election were scheduled on October 7, 2019, it is the view of this Court that there is an unreasonable and unexplained delay in filing this Application.”
The Court of Appeal said the non-citation of the necessary parties such as the SLPP as a party to the petition was a fatal omission by the petitioners to the maintainability of the case, as it was raised as a preliminary objection by the respondents. Hence on that ground too, this application could have been dismissed. (Shehan Chamika Silva)