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There is a perilous consequence to the Court of Appeal’s decision issued this Tuesday, explaining why it refused to issue notice in the legal challenge filed by civil society activists impugning the dual citizenship certificate of the Rajapaksa-led Podujana Party’s presidential candidate, Gotabhaya Rajapaksa.

Interesting contradictions and future dangers

In essence, the Court was asked to quash the dual citizenship certificate issued on 21^st November 2005 on the basis that, then President Mahinda Rajapaksa did not have the legal authority to sign the certificate as he had not constituted his Cabinet at the time. The relevant Ministers were appointed two days later (ie; 23^rd November) and ministerial subjects and functions were assigned even later on 8^th December. This ambitious argument was unanimously dismissed out of hand by the Bench. It was declared that the then President, as the ‘repository of Executive power’ had the legal authority under the Constitution to sign the ‘dual citizenship certificate.’ The contention that the President can assign to himself/herself any subject or function under Article 44(2) only after appointing Ministers and constituting the Cabinet in terms of Article 44(1) of the pre-19^th Amendment Constitution was summarily rejected

In so doing, the Court proceeded to recognise that the President’s powers are ‘certainly’ circumscribed by the Constitution during the intervening period’ between a new President assuming office and a Cabinet being constituted but that ‘artificial fetters’ should not be placed on that power. Interestingly however, the Bench also said that the President cannot ignore Article 44(1) altogether and ‘without reasonable justification,’ neglect the constitutional duty to appoint a Prime Minister and assign subjects and functions to Ministers ‘over a long period of time’. That was opined to amount to being ‘unconstitutional, arbitrary and unreasonable.’

But if it is the position of the Court that no timeline is specified for the President ‘constitutionally’ to constitute the Cabinet, by what conceivable logic is it affirmed to be ‘unconstitutional’ in that same breath, for the President to, ‘without reasonable justification, govern the country over a long period of time’ without a Cabinet? Who determines the length of time as indicative of a constitutional standard? Two weeks, two months or longer? And if this exercise of executive power is not constitutionally ‘unfettered,’ (as the Court takes pain to stress), ‘what exactly would be the ‘non-artificial’ fetters on that power?

Exercising discretion in petitioning court

Would not a (dangerous) consequence of the Appeal Court’s reasoning amount to the exercise of such power being, in fact, unfettered, even though this is not directly stated? Perhaps this is what the framers of the 1978 Constitution intended. Indeed, there is some truth in the judicial complaint that, if constitutional limitations were intended, they would have been clearly defined and a new President put under a specific duty to constitute a Cabinet within a time frame. In adverting to the matter under review as a ‘one-off’ situation and observing that Articles 43 and 44 in a post 19^th Amendment Constitution are significantly different with the current ruling ‘unlikely to have any relevance to the present era,’ the Appeal Court has recognised clear and present perils of this approach. Even so, the question whether the implications of this ruling can be so airily limited, remains to be examined in detail. Such a conclusion may not be as convenient as it appears to be.

Now we come to another matter. There is no doubt that any citizen of this country has the right at any point to approach Court and assert the legal validity of a disputed claim. There is also no doubt that threats against the petitioners are dastardly but unsurprising given the record of Rajapaksa propagandists. That said, flamboyant legal ventures into fields that are strewn with legal and political minefields often tend to be counter productive. One of the great arts of legal advocacy is not only understanding the validity of a legal point but also recognising precisely when and how that point ought to be raised. It is to be meticulous in pleadings and submissions so as to not concede even a minor point to the contending party.

Most importantly, public interest litigation must not project individuals but centre the violation of the Rule of Law. Put simply, even a distant chance of this legal challenge failing at a crucial point in this Presidential campaign should have sufficed for any challenger to back away or go the more conservative route by challenging the electoral authorities at the point of nominations being put forward. The Court’s designation of the application as filed for ‘collateral purposes and not a ‘genuine public interest litigation’ is a stinging indictment. Indeed, as the judges have pointed out, it has not even been averred that the petition was filed in the public interest nor has the Sri Lanka Podujana Party (Pohottuwa) been cited as a party, which failure was determined to be a fatal flaw.

A devilishly insidious scheme to subvert the Rule of Law 

Not to overstate the matter but fatal flaws have been symptomatic of the anti-Rajapaksa movement in Sri Lanka from 2015 enabling the Rajapaksas to make a comeback in 2019. This is also a reason as to why, paradoxically, the legal process against them has largely failed so far. I am careful not to say symptomatic of ‘yahapalanayists’ as many mistakes of this nature should not be laid at the collective door of the ‘yahapanalaya’ Government as opposed to a few who gather in Colombo’s secluded corners. Glitzy and glamorous tom-tom beating on social media, rushed ventures to court and fingers accusingly directed towards ‘unwelcome’ decisions cannot substitute for the hard work of serious litigation. This is to fall into the same camp as Rajapaksa followers who attacked Supreme Court Justices following their 2018 ruling that former President Mahinda Rajapaksa’s catapulting into the seat of the Prime Minister was unconstitutional.

Certainly the Appeal Court decision has come as manna from heaven to an incendiary narrative pushed with glee by the Rajapaksas that they are being unfairly hounded in the courts. Controversial statements by state law officers alleging ‘pressure’ to file cases against Gotabhaya Rajapaksa, the astounding admission by a former Justice Minister who has now skipped over to the Pohottuwa camp that he intervened to stop these prosecutions indicates that there is a well planned scheme underway to strike at the core of the legal system. Notwithstanding Rajapaksa’s ringing announcement that he would free ‘war heroes’ held on ‘bogus charges’, they are not the central ‘beneficaries.’ The Rajapaksa leadership had no compunction about clapping dozens of soldiers into jail along with former Army Commander Sarath Fonseka. Rather, what is aimed at here is the release of the Rajapaksas themselves, along with their sycophants and loyalists from the very many cases that they are now enmeshed in, from the Magistrate’s Court upwards.

Undoubtedly, good sense and and a modicum of discretion is pivotal in ensuring that this devilishly insidious scheme is frustrated.