There was clear dismay and anger by the Bench of the Court of Appeal when announcing its judgment rejecting the petition against the SLPP presidential candidate Gotabaya Rajapaksa’s dual citizenship issue, with a warning of punishment to those who hugely disturbed the Court with cheers at the judgment. The Bench did question if lawyers were also associated in this gross disturbance and disrespect.
Counsel for Gotabaya Rajapaksa apologised to the Court for this behaviour. What he possibly did not understand was that this near rowdy response to the judgment, was the huge joy at the political recognition of the Repository Powers of the Executive President, as argued by him and the Deputy Solicitor General, which the shouters thought was the argument accepted by the Court in dismissing the petition, while the Court had not given the reasons for its judgment.
The two petitioners in the appeal, Professor Chandraguptha Thenuwara and Gamini Viyangoda had alleged in their petition that Gotabaya Rajapaksa, with serious issues related to his citizenship, cannot contest for the Presidency of Sri Lanka.
Regarding the anger of the Court of Appeal on the disturbance there, one must remember how in 2014, the press was totally kept out, and even most lawyers, the public, and their vehicles too were prevented from coming to the Mount Lavinia Court, when the then Defence Secretary Gotabaya Rajapaksa arrived to give evidence, in the defamation case filed by him, against the Editor of The Sunday Leader, Lasantha Wickrematunge.
As much as disturbance in a court by one’s supporters as seen in this instance, the emptying and thereby silencing a court is also the stuff of Gotabaya Rajapaksa’s dual citizenry. This was certainly the power of Presidential Repository Power, shared by one’s brother. Let’s get back to the current situation.
Arguments
While respecting the Court of Appeal in arriving at this decision with unanimity, it is good to look at the political meaning of the arguments presented to the Court in this regard. This relates to the political import and the wider impact of this legal argument in the political and social organisation in the country. As the presidential election process gets under way, we are reminded again of the ‘repository power’ of the former President, seen as a wider rejection of the standards of social courtesy and decency in the management of the affairs of State; as shown in the years of the Rajapaksa Presidency.
One key question that arises with regard to the Dual Citizenship of Gotabaya, is whether the then, just elected and sworn in President Mahinda Rajapaksa (in November 2005), could not have waited a few more days to have his brother Gotabaya recommended for dual citizenship by the Minister in charge of the subject of Immigration and Emigration, who would be sworn in at the new Cabinet? What is seen in this speedy exercise of Repository Power is that it was used to benefit one’s own brother!
Isn’t it the traditional practice of decency, that in the use of overriding authoritative power, one has to ensure it is not used with speed to help one’s own family; unless there is a possible life and death situation facing one in the family? The use of such repository Power by a President, with no Cabinet sworn in yet, can be understood if there was the threat of a foreign military action against the country, or there was a natural calamity affecting the country. That was not so. How can the Dual Citizenship of the foreign citizen brother; and supposedly 25 more foreign citizens, be such a matter of urgency for a President just elected to office? Who and when will this be explained to the public through the administration or even the judiciary?
Is the decency of patience taught in the traditions of the Dhamma so distant from the Repository Powers of a President? Or is this just a display of family power, that has been a constant and core policy of the then SLFP Rajapaksa presidency, and the now SLPP?
Lawyers presenting legal and other arguments in a court of law are persons who are expected to make careful and detailed studies of the law in their considerations. It is necessary for those who do such studies and act with regard to interpretation of the law, not to be confined to the direct meaning of a law, but to also consider the deeper impact in the carrying out of such legislation in society and the lives of people.
The situation in the final judgment in Shakespeare’s ‘Merchant of Venice’ is interesting in this regard. The agreement between Antonio and Shylock referred to ‘a pound of flesh’ to Shylock from Antonio if the bond was not settled. Shylock was legally ready with a knife to get that pound of flesh, when Ophelia pointed out that the bond included blood too. It would be a flesh and blood disaster as the law laid it down, and Shylock had to lose any flesh, and be fined too.
There are stories in our own folklore and the Jataka Tales, where the final decision is not always confined to the written or accepted law, but to the wider and more humane impact on society and the people. Henry Jayasena’s Hunuvataye Kathava adapted from Berthold Brecht’s ‘Caucasian Chalk Circle’, also shows that the final judgment cannot be narrowly confined to the law, when the lives of people and humanity is involved.
In a country with a long record of an independent and honest judiciary, we are today in a situation where the actual citizenship of so many people of this country, remains in doubt, due to the absence of related documents with the Department of Immigration and Emigration from 2005 to 2007. Gotabaya Rajapaksa stands out as one, or with 25 others among these many thousands, who benefitted from the Repository Power of his President Brother. It is solved with a related affidavit submitted by the DE&I to explain why any file related to the dual citizenship issue of Gotabaya Rajapaksa is not with it; instructed to do so without delay by the Deputy Solicitor General. Lawyers no doubt take delight in the Affidavit Exercise. What will be the position of any other of those foreign citizens, who have no Repository Power President brother, but may have a problem on dual or single citizenship? How and why was such a huge loss of essential documents kept a secret from the public all these years? Was this absence known by the Department of Immigration only after the Gotabaya citizenship issue became a matter of public interest? Will any court or other legal/administrative authority initiate an investigation into this, and if not, is that also because of Presidential Repository Power, then or now?
Political meaning
The people must now think of the political meaning of the Repository Power of the President, in the context of the Sri Lankan politico-judicial practice. Was it not this Repository Power that was used by the Government, when Gotabaya Rajapaksa was Secretary of Defence, headed by his brother President Mahinda, in wrongfully and illegally removing from office the Chief Justice Shirani Bandaranayake; relating to her judgement with regard to a political/administrative move by his other brother, dual citizen Minister Basil Rajapaksa?
Do we not have many more examples of the misuse or even abuse of this Repository Power and other overriding powers of the Executive Presidency, which saw this country move to be a hot bed of corruption; resulting in the brother Gotabaya, who has especially benefited from this power on his claimed US and Sri Lankan Dual Citizenship, being the only presidential candidate in Sri Lanka’s 40 year presidential history, with multiple lawsuits filed against him, and still lying before the courts?
No doubt there will be learned lawyers defending him in all these cases, but what if the fraternal Repository Power of the Mahinda Presidency is evoked for all these too? Was it not this same Repository Power that made him (Mahinda) the Minister of Justice too, in the last presidency, and the division between the Attorney General’s Office and the Presidency was wholly erased?
We must and do respect the Courts of Law. That is a core value of those who believe in and support democracy. Shortly after the Court of Appeal judgment on the Gotabaya dual citizenship petition, Mahinda Rajapaksa did say on TV that there is an independent judiciary today. Can we say so about the many years of the last Rajapaksa presidency? How were key positions in the Attorney General’s Department and the Judiciary too, manipulated in the post-war victory Presidency?
The voters of today face a great challenge. They must respect the judiciary. They must also respect their democratic rights of criticism even of the judiciary, when it needs or earns criticism. They must identify presidential candidates who can be trusted on the maintenance of judicial independence, needing much more clearance on trust and credibility in the coming years.
We must respect the judiciary, just as we do respect our elders. But we do have rights to have different thinking and practice from our elders. We do respect our teachers, but many of them have taught us to think on our own and come to new decisions. The age of respecting politicians in office, and those who held office, is fast finishing: There are so few of those with decent records left. We need to think of a new Age of Honest Politics – away from the beneficiaries of the Repository Power of the Presidency. It is such a beneficiary that made white vans roam our streets, where journalists and a free media were political and personal threats, and huge and immense corruption ruled the roost, including a monumental mausoleum to politico-parents, built at public expense.
Challenge
What we have now been told by the lawyers is that Gotabaya’s Dual Citizenship was properly obtained through the Repository Power of the brother President. But what do we actually know of his US Citizenship? Has it actually been given up or so accepted by the US, or is he yet a person of dual citizenship? How far can the public believe the Department of Immigration and Emigration on the matter, relating to a new passport, when it has been so silent on the loss of so many citizenship related documents; and what about the NIC Department? Let’s keep guessing.
We must think deep of the social and national consequences of the interpretation and enforcement of the law, especially in the context of Family Bond - Repository Power (PP), which is the swing of presidential polls campaigning today.
The initials of the SLPP is certainly proper with the goal of the new Gotabaya Presidency, where Repository Power stands above all the restrictions of the 19th Amendment on the Executive Presidency; as senior lawyers would argue and crowds would cheer, even in a Court of Law.