(UTV|COLOMBO) – The Court of Appeal was informed that there was no application related to the former Secretary to Ministry of Defence-turned-Presidential Candidate of the Sri Lanka Podujana Peramuna (SLPP), Gotabhaya Rajapaksa obtaining dual citizenship in 2005.
This was revealed by the Counsel for the Third Respondent, Minister of Internal and Home Affairs, and Provincial Councils and Local Government, Wajira Abeywardana, President’s Counsel (PC) Chanaka De Silva, as hearings on the writ petition filed challenging the validity of Rajapaksa’s citizenship commenced for a 2nd-day yesterday (03).
PC De Silva stated that that the President had no Plenary Executive Power, but a power that should be interpreted in the backdrop of a 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 what the intention of the Constitution as stipulated in the preamble.
He also argued stressing 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 responsibility on the Executive as the President and also as the Cabinet, and therefore, the Articles 4(b) and 30 alone cannot interpret that the President has all the Plenary Executive Power.
He also argued 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 (UK)’s monarchical power, he said.
Focusing on the Article 44 (1) (2), which provided then President to assign Ministries and remain unalloted Ministries under him, PC De Silva was of the view that that Article’s sub sections must read with 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.
In an event when a new President assuming duties and the appointment of the Ministries if the President has no residual power over all the Executive, PC De Silva argued that State mechanism does not 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 singular 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 a democratic governance, and also such powers should be construed reading all the relevant sections of the Constitution together.
The Court of Appeal ordered the Attorney General Dappula de Livera to obtain affidavits from Officers of the Department of Immigration and Emigration pertaining to application related to Rajapaksa obtaining dual citizenship in 2005, that are at present unaccounted for.
The petition was filed by Gamini Viyangoda and Professor Chandraguptha Thenuwara on Monday (30).
The Petitioners through the writ claimed that Rajapaksa obtained a National Identity Card (NIC) and a Sri Lankan Passport without submitting adequate documents pertaining to the renouncement of his United States (US) citizenship.
WITH INPUTS FROM DAILY MIRROR | THE LEADER
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