Legal decks cleared for front-runner Gotabaya’s candidacy in Lankan Presidential poll
Posted on October 5th, 2019

By P.K.Balachandran Courtesy NewsIn.Asia

Legal decks cleared for front-runner Gotabaya’s candidacy in Lankan Presidential poll

Colombo, October 5: The political situation in Sri Lanka returned to normal on Friday, after the Court of Appeal rejected a petition by two civil rights activists to bar Gotabaya Rajapaksa, the candidate of the Sri Lanka Podujana Peramuna (SLPP), from contesting the Lankan Presidential election set for November 16.

The petition, filed just a few days before the date set for the filing of nominations (October 6), charged that Gotabaya Rajapaksa had unlawfully obtained a Dual Citizenship Certificate. Therefore he had no right to contest the forthcoming election.

Petitioners Prof.Chandraguptha Thenuwara and Gamini Viyangoda, had sought the cancellation of the Dual Citizenship Certificate issued to Gotabaya Rajapaksa on November 21, 2005 and the Sri Lankan passport and National Identity Card (NIC) issued to him thereafter.

A three-judge Court of Appeal, headed by Yasantha Kodagoda, heard both sides for nearly four days and finally threw out the petition Friday evening, without granting the petitioners leave to proceed.

If the petition had been allowed and leave to proceed was granted, Gotabaya Rajapaksa would not have been able to contest the election. In that case, the entire complexion of the election would have changed. Sajith Premadasa, the candidate of the ruling United National Paty(UNP) would have had the best chance of winning the Lankan Presidency.

None of the other candidates in the field, including Anrua Kumara Dissanayaka of the Janata Vimukthi Peramuna(JVP), has the capability of Sajith Premadasa. The UNP has the largest voter base among the non-SLPP parties. The UNP is also exceptionally united and charged up now because it has, at long last, found a candidate with a common touch” after putting up with an elitist and distant leader like Ranil Wickremesinghe, the current Prime Minister.

Right from the start, political pundits had been considering Gotabaya of the SLPP (founded and led by the charismatic former President Mahinda Rajapaksa) as the front-runner in the Presidential race. As Defense Secretary and also as the Urban Development Secretary, Gotabaya had distinguished himself as a dynamic official and a creative leader, though he also had a reputation for using strong arm methods to quell trenchant critics.

Following the April 21, 2019 multiple suicide attacks by a bunch of Jihadis and the utter failure of the UNP government to act on accurate prior intelligence given by India, the majority of Sri Lankans especially of the Sinhala-Buddhist and Christian communities had been yearning for a strong national security orient government, which, under the circumstances, only Gotabaya can provide.

In the absence of Gotabaya, the SLPP would have put up Chamal Rajapaksa, the eldest of the Rajapaksa siblings. But Chamal is a colorless and uninspiring politician though with a reputation as an honest and fair-minded man. He lacks the dynamism of Gotabaya, who as Defense Secretary, had defeated the dreaded LTTE, and as Urban Development Secretary, re-built post-war Colombo and other Lankan towns.

Petitioner’s Plea

Appearing for the petitioners, Suren Fernando recalled that before 2003, Gotabaya Rajapaksa was a citizen of Sri Lanka by descent. Thereafter, on or around January 31, 2003, he had become a citizen of the United States of America. From that day onwards, Gotabaya Rajapaksa had ceased to be a citizen of Sri Lanka under the country’s Citizenship Act.

Subsequently, in November 2005, when his elder brother, Mahinda Rajapaksa, won the Lankan Presidential election, Mahinda wanted to make Gotabaya Defense Secretary to help him prosecute the war against the Tamil separatist militant group the Liberation Tigers of Tamil Eelam (LTTE). For this purpose, Gotabaya, who was a US citizen at that time, had to be given Dual Citizenship.

Gotabaya applied for a Dual Citizenship Certificate, a Sri Lankan passport and a National Identity Card. These were sanctioned on November 21, 2005, a few days after Mahinda Rajapaksa was sworn-in as President of Sri Lanka. The Dual Citizenship Certificate was signed by Mahinda in his capacity as the President of Sri Lanka.

The petitioners pointed out that the certificate bore no signature of the concerned Minister and the Ministerial Secretary, something it ought to have had as per the legal requirement.

The petitioners pointed out that as per law, the Cabinet of Ministers and Ministerial Secretaries had resigned after the election of the President to enable him to choose his own men. A new Prime Minister, Ministers and the assigning of the subjects to the Ministries took place on November 21, 23 and December 08 respectively. When Gotabaya was given a Dual Citizenship Certificate on November 21, 2005, there was neither a subject Minister nor a Ministerial Secretary. But President Mahinda Rajapaksa had signed on and issued the Dual Citizenship Certificate.

The petitioners pointed out that the President had no power to do that and therefore, the certificate and everything that flowed from it, was null and void.

The Court of Appeal President, Yasantha Kodagoda, asked whether there was any residual power vested upon the President to exercise the executive power of the government in the absence of the Cabinet. Counsel for the petitioners, Suren Fernando, replied that the 1978 constitution is a combination of both Westminster and Presidential systems of governance and that its intention was not to provide plenary executive powers to the President. He has to share it with the Cabinet of Ministers and cannot act on his own.

The Defense

Appearing on behalf of the Attorney General, Controller General for Immigration and the Registrar of Persons, Senior Deputy Solicitor General (SDSG) Nerin Pulle told the court that the former President, Mahinda Rajapaksa, who had signed the Dual Citizenship Certificate of Gotabaya Rajapaksa in 2005, had the power to do so as the relevant Minister.

After the Presidential election, the cabinet stood dissolved and Secretaries to the Ministries had also quit. But as per the 1978 constitution, all executive powers were vested with the President during that period. As such, the President could sign any document that a Minister would have signed.

In other words, the President could exercise his plenary powers” to take decisions of Ministers in the absence of Ministers. Pulle also argued that the subject Minister’s recommendation was enough and the Ministerial Secretary’s signature was not needed. And the subject Minister at that time, in the absence of a cabinet, was the President himself.

Pulle pointed out that Article 44 (2) of the Constitution, which was in existence in 2005, said that the President could continue to function with all the executive powers as the head of the government and the executive, until the new Cabinet was appointed.

Counsel for Gotabaya Rajapaksa, Romesh de Silva, said that the litigation against his client had been brought by political opponents to prevent him from standing for the Presidential election. This was tantamount to breaching the right of people to vote for the candidate of their choice. The petition was drafted in cahoots with the leaders of the UNP, he charged.

De Silva also took objection to the fact that the writ application had been filed while an investigation into the same facts was taking place under the supervision of the Colombo Magistrate.

The counsel for Gotabaya further stated that the petitioners had not included in their plaint, 21 others who were given Dual Citizenship Certificates on November 21, 2005, the day on which Gotabaya was given the certificate. On this technicality alone, the petition should be dismissed, he said.

(The featured image at the too shows Mahinda Rajapaksa and Gotabaya Rajapaksa)

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