“The organs of government do not have a plenary power that transcends the Constitution and the exercise of power is circumscribed by the Constitution and the written law that derive its authority therefrom and there could be no plenary executive power that pertain to the Crown as in the UK and the executive power of the President is derived from the People as laid down in Article 4 (b) of the Constitution.”[1]

In the case of Gamini Viyangoda and other Vs R.M.P.S.B Rathnayake, Controller General of Immigration and Emigration[2], the Petitioners have invoked the Writ Jurisdiction of the Court of Appeal to quash the Dual Citizenship Certificate issued by the 6th Respondent (former President who issued the above said certificate when there was no Cabinet of Ministers) to the 5th Respondent (N. Gotabaya Rajapaksa). Their contention was that the above said certificate was invalid in law and the 6th Respondent did not have an authority to sign that document before full fill his constitutional duties (appoint the Cabinet of Ministers).

The 5th respondent became a citizen of Sri Lanka by descent[3] but later he voluntarily became a citizen of the US on 31/01/2003. According to section 20 (5) of the Citizenship Act if a citizen of Sri Lanka voluntarily becomes a citizen of any another country his Sri Lankan citizenship will be ceased. However Section 19 (2) empowers a Minister to give back that ceased citizenship notwithstanding the fact that he is, and continues to be a citizen of any other country when he makes an application (Dual Citizenship).

The purpose of the Petitioners was that prevent the 5th Respondent form contesting in the 2019 Presidential election because Article 89 (a) of the Constitution provides that if a person who is not a citizen of Sri Lanka, he can’t be a qualified elector for the presidential election. Thus, if the Court ruled that the Dual Citizenship Certificate was invalid, the 5th Respondent could have not been contested in the election.

The core issue before the court that whether the 6th Respondent (former President who, was assumed office on 19/11/2005, has signed the said certificate on 21/11/2005, appointed the Ministers on 23/11/2005 and assigned the subjects and functions to such Ministers on 8/12/2005) could have exercised powers vested in a Minister under the Citizenship Act, without having first complied with the provisions of Articles 44 (1) and (2).[4]

Based on article 44 of the Constitution the Counsel for the Petitioners contended that:

  • It is the duty imposed by Article 44(1) on the President to follow it (mandatory);
  • The President’s power to assign to himself any subject or function in terms of Article 44(2) can only be exercised after appointing Ministers in terms of Article 44(1).

The Counsels for the Respondent have counted the Petitioners’ contention based on two basic propositions. The first is that the President has plenary executive power. The second is that the President is the repository of executive power and as such is entitled to exercise such power until the appointment of the Cabinet of Ministers and the assignment of subjects and functions to such Ministers.

However the Court did not accept the plenary executive power of the president. The Court have cited the Rajavarothiam Sampanthan and others Vs Hon. Attorney General and others[5] and Nallaratnam Singarasa Vs Hon. AG[6] and held that:

‘’ any power that can be exercised by the President would have to be necessarily conferred upon him by the Constitution or any other written law, and that the exercise of such power is circumscribed by the Constitution. It is therefore important to note that the President does not derive the ‘Executive’ component of the peoples’ sovereignty from any other source than from the Constitution and other written laws, and is circumscribed by the Constitution. Therefore, this Court cannot agree with the Respondents’ argument that the President is conferred with ‘plenary executive power”.[7]

In this case, the Court have accepted the fact that there is a gap in the Constitution that the Constitution does not specify a timeline within which the President is required to finalize the Cabinet and make ensuing appointments.

In order to fill this gap the Court have collectively interpreted the Articles 3[8], 4(b)[9] and 44 (2)[10] of the Constitution. The Court held that based on above said provisions the president (6th Respondent) as the custodian of the Executive power of the People was the repository of the said executive power and the Constitution had conferred a duty on the President to be in charge of all such subjects and functions not assigned to any Minister.

The court have dismissed the Petition and finally justified the repository of executive power of the 6th Respondent in the following manner:

‘’ 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. 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 and that the argument of the Petitioners is a nullity therefore has no legal basis.’’[11]

[1] 2013 (1) Sri LR 245 at page 255 -256. ISC Spl (LA) No. 182/99. decided on 15′” September 2006.

[2] CA Writ Application No. 425/19.

[3] Section 5(1) of the Citizenship Act No. 18 of 1948.

[4] Articles 44(1) and 44(2) of the 1978 Constitution prevailed during 2005- (6th respondent had signed that certificate in 2005 when he was President and the Article 44 of the Constitution as it prevailed in 2005 has since been replace by the amendments introduced through the 19th Amendment. Hence, the Constitutional provisions before the 19th Amendment are relevant to this case.)

Article 44- “(1) The President shall, from time to time, in consultation with the Prime Minister, where he considers such consultation to be necessary- a) determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers; and b) appoint from among the Members of Parliament, Ministers to be in charge of the Ministries so determined.

(2) The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph (1) of this Article or the provisions of paragraph (1) of Article 455 and may for that purpose determine the number of Ministries to be in his charge, and accordingly, any reference in the Constitution or any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President.”

[5] Supra- in this case the Supreme Court explained that when the term “plenary power” was previously used by the Supreme Court in SC Reference 2/2003 it simply meant “‘full power’ or ‘complete power’ and should not be

taken to and cannot be taken to mean  species of inherent unrestricted omnipotent power held by a Head of State which is akin to Royal prerogative power.” The Supreme Court went on to state that “it must be remembered that the President, who is the Head of the State under the Constitution is but a creature of the Constitution. His powers are only those which are specifically vested in him by the Constitution and the law. Equally, the exercise of these powers by the President are circumscribed by the provisions of the Constitution and the law”.

[6] 2013 (1) Sri LR 245- “The organs of government do not have a plenary power that transcends the Constitution and the exercise of power is circumscribed by the Constitution and the written law that derive its authority therefrom.” TheSupreme Court has proceeded to hold that, “there could be no plenary executive power that pertain to the Crown as in the UK and the executive power of the President is derived from the People as laid down in Article 4 (b).”

[7] CA Writ Application No. 425/19 at page 21.

[8] Article 3 of the Constitution- “In the Republic of Sri Lanka Sovereignty is in the People and is inalienable.”

[9] “The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People”.

[10] Article 44 (2) states that the President “shall remain in charge of” any subject or function not assigned to any Minister under the provisions of Article 44(1), means that the President is the repository of Executive power. The word “remain” connotes “continuity”, and is linked to Article 4(b).

[11] CA Writ Application No. 425/19 at page 33.