Setting out the reasons for last October 04 dismissal of the writ petition challenging the dual citizenship of Sri Lanka Podujana Peramuna (SLPP) Presidential Candidate Gotabaya Rajapaksa, the Court of Appeal today (October 15) stated that inordinate delay and fatal omissions inter alia led to the dismissal.
Legal experts believe that such fatalities led to the dismissal rather than inadequate merit in the prime question in issue i.e. Gotabaya Rajapaksa’s citizenship.
Prof. Chandraguptha Thenuwara and along with fellow civil activist Gamini Viyangoda filed the Writ application citing R.M.P.S.B. Rathnayake, Controller General of Immigration and Emigration (First Respondent), P. Viyani Gunathilaka, Commissioner General, Department for Registration of Persons, (Second Respondent) Hon. Vajira Abeywardena, Minister of Internal and Home Affairs and Provincial Councils and Local Government (Third Respondent) Gamini Senevirathna, Ministry Secretary (Fourth Respondent), Nandasena Gotabaya Rajapaksa (Fifth Respondent), ‘PRESIDENT’ (Emphasis ours) Mahinda Rajapaksa (Sixth Respondent), C.D. Wickremaratne, Acting Inspector General (Seventh Respondent) and three other Police officials as respondents.
Suren Fernando with Niran Anketell and Khyati Wikramanayake appeared for the Petitioners, whilst Deputy Solicitor Generals Nerin Pulle, Dilan Ratnayake, Dileepa Pieris, Senior State Counsel Suren Gnanaraj, and State Counsel Indumini Randeny, appeared for the 1st, 2nd, 4th 7th to 10th Respondents.
Chanaka De Silva, P.C., with Sachintha Kahandage, Niranjan Arulpragasam, Sewwandi Karaliyadda and Dilrukshi Paul appeared for the 3rd Respondent whilst Romesh De Silva, P.C., with Palitha Kumarasinghe, P.C., M.U.M. Ali Sabry, P.C., Sugath Caldera, Ruwantha Cooray and Harith De Mel appeared for the 5th Respondent.
Gamini Marapana, P.C., with Navin Marapana, P.C., Ganesh Dharmawardena, Kaushalya Molligoda, Uchitha Wickremasinghe and Gimhana Wickramesurendra appeared for the 6th Respondent.
On October 04 the three-member bench of the Court of Appeal comprising CoA President Justice Yasantha Kodagoda, P.C. and Justices Mahinda Samayawardhena and Arjuna Obeyesekere unanimously dismissed the application without issuing notice to respondents.
Here are excerpts of the judgment:-
“…It was pointed out by the learned President’s Counsel for the 5th and 6th Respondents and the learned Deputy Solicitor General, that the language in Article 44(2) clearly provides that the President shall remain in charge of any subject or function not assigned to any Minister….”
“The Sinhala text, which this Court is obliged to give preferential recognition to, indicates clearly that the Constitution had conferred a ‘duty’ to the President to be ‘in charge’ of the subjects and functions not assigned to Ministers. Thus, during the intervening period of a few days between the new President having assumed office and his having appointed the Cabinet of Ministers and assigned subjects and functions to such Ministers and to other Ministers as provided by the Constitution, 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.”
“It is therefore the view of this Court that the language in Article 44(2) read with Article 4(b) provides ample textual support for the proposition that following the assumption of office, the newly elected President could have exercised powers conferred on a Minister by any written law until the Cabinet of Ministers was appointed.”
“In the above circumstances, it is the view of this Court that the 6th Respondent, as the repository of the Executive power of the people, had the legal authority in terms of the Constitution to sign the ‘Dual Citizenship Certificate’ (Pl3)’ on 21st November 2005 and that the argument of the Petitioners that ‘PB’ is a nullity therefore has no legal basis.
“(However)… this Court cannot agree with the first part of the submission of the learned Deputy Solicitor General and learned President’s Counsel for the 5th and 6th Respondents which was premised on the footing that the President is conferred with ‘plenary executive power’, which empowered and therefore enabled him to issue the ‘Dual Citizenship Certificate’.
“It was the position of the learned Counsel for the 5th and 6th Respondents that, there was nothing suspicious in the entries found in the afore-stated documents.”
“This Court has from time to time expressed the view that a prerogative and exceptional remedy in the nature of a mandate of a Writ would not lie based on disputed facts. This Court cannot be expected to go on a voyage of discovery and arrive at factual findings relating to disputed facts. Thus, this Court does not wish to base its findings on such disputed facts, which are still under investigation by the police. This Court wishes to add that the Order contained herein would not have any bearing on the Criminal Investigation Department continuing with its investigation, should the law and investigational findings warrant it to do so.”
“It was the position of the learned President’s Counsel for the 5th Respondent that there cannot be a dispute that this is a politically motivated case. He submitted further that this Application had been filed strategically at the ‘eleventh hour’ to put the 5th Respondent out of the fray for the Presidency.
..The Petitioners strategically filed this application giving only six working days (including the date of filing the application) prior to the nomination date to decide the matter for Notice and interim relief. The Petitioners have not stated a word about the delay in filing the Petition, but impliedly expected the Court to believe that they came to know about the question of dual-citizenship of the 5th Respondent through the Daily FT news item that appeared on 05th August 2019marked ‘Pl ‘.”
“The learned Deputy Solicitor General has tendered together with an affidavit of the 1st Respondent, the requests made in February 2019 to the 1st Respondent under the Right to Information Act requesting information with regard to the issuance of the dual citizenship certificate of the 5th Respondent. … This demonstrates that this issue was in the domain of knowledge of certain persons at least since February 2019. This Court must state however that no allegation was made that there exists a nexus between the Petitioners and the person who made the said request.”
“The learned President’s Counsel for the 5th Respondent submitted further that while rival parties are entitled to adopt their own strategies to achieve their political objectives, no one should be allowed to abuse the process of Court to achieve his or her ulterior motives.”
“It is not in dispute that, if this Court had held that ‘P13’ is a nullity, it would not only directly impact the rights and interests of the 5th Respondent, it would gravely prejudice the interests of the SLPP. Thus, applying the above dicta, this Court holds that, non-citation of the SLPP as a Respondent is a fatal omission by the Petitioners, and hence on that ground too, this Application could have been dismissed. For the aforesaid circumstances, this Court does not see any legal basis to issue formal Notice of this Application to the Respondents. This Application is accordingly dismissed. This Court makes no order with regard to costs.”
Yasantha Kodagoda, P.C., J
President of the Court of Appeal
Mahinda Samayawardhena, J
Judge of the Court of Appeal
Arjuna Obeyesekere, J
Judge of the Court of Appeal
To read the full text of the judgement click here