22 July, 2017

Dual Citizens Still In Legislature !

By Arun Kumaresan

Arun Kumaresan

Is it an act of ‘criminal breach’ of the oath to defend and uphold the constitution?

Ms Geetha Kumarasinghe MP (status quo restored by virtue of the stay order) exercised her right to appeal had obtained a stay order of the operation of Court of Appeal judgment, disqualifying her to be a member in violation of the provisions enshrined in the supreme law – constitution, which she and all MP’s have taken an oath to uphold.

Whist respecting her right to appeal and bowing to the Supreme Court’s ruling to grant leave to proceed and issue a stay order of the operation of the Court of Appeal judgment on a 2 to 1 verdict, the facts transpired at the Court of Appeal pertaining to the of the status of her Dual Citizenship of the said MP is now common knowledge to the citizenry merits attention.

The petition against the said MP was; being a holder of a dual citizenship is not qualified to hold office as a Member of Parliament and/or to sit and vote in Parliament by virtue of Article 91(1)(d)(xiii) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

The relevant portion of that Article is reproduced below; 38. Article 91(1) (d) (xiii) of the Constitution, 91. (1) No person shall be qualified to be elected as a Member of Parliament or to sit and vote in Parliament- (a) (b) (c) …….. .. (d) if he is (i) (xiii) a citizen of Sri Lanka who is also a citizen of any other country; ….

The facts elicited from the judgment of the Court of Appeal:

1. The 19th Amendment which brought in the disqualification set out in Article 91(1) (d) (xiii) of the Constitution was certified by the Speaker of Parliament on 2015-05-15.

2. This date assumes significance because legislature had deliberately brought in a fresh disqualification pertaining to the dual citizen holders being a Member of the Parliament into the Constitution approximately two months before the date of the nominations.

3. The nomination papers for the 2015 General Elections had been handed over on 2015-07-09.

4. The said MP had not divulged her dual citizenship at the time of submission of her nomination to contest the said election

5. Her travel document details issued on 2015-08-26, by the Department of Immigration & Emigration states that the holder of that travel document is a dual citizen.

6. The said MP had applied for dual citizenship of Sri Lanka/Switzerland on 2006-08-29 and was registered as a dual citizen on 2006-08-29 under the Citizenship (Amendment) Act No. 45 of 1987.

7. In 2015-10-30, she had applied for a diplomatic passport and had requested that the same be issued without an endorsement that she is a dual citizen.

8. She had submitted a letter dated 2015-09-11 issued by the Registry and Citizenship services, Canton of Bern indicating that Mrs. Geetha Samanmali Fuhrer, nee Kumarasinghe, is released from Swiss Citizenship

9. In the letter dated 2015-10-30 by the said MP has admitted that at least at one point of time she has been a holder of dual citizenship.

10. It appears based on the above facts that she was in fact a Dual Citizen on the date of filing nominations and the date of elections.

The facts pertaining to this case is clear that the said MP is a holder of a Dual Citizenship unless she had provided facts in contrary to the Supreme Court along with the reasons for not presenting the said facts to the trial court; in this instance the Court of Appeal. But the core reasons for the legislature thought it is fit to prohibit dual citizenship holders could be amplified through the explicit and implied meaning as seen in the provision of the Sec 44 i) of the Australian constitution; quote “Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”- the provision that bars Australian dual citizens to be members of its Parliament.

The above being so, the matter needs urgent attention of the learned Supreme Court to ascertain the fact to either clear or otherwise and send a clear signal to any other MP’s with Dual Citizenship functioning as a member of the supreme legislature; in criminal breach of their oath, as follows:

“”I …………………… solemnly declare and affirm / swear – that I will faithfully perform the duties and discharge the functions of the office of …………………………………. in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.

Any Dual Citizen MP is in grave criminal breach the very instance he or she if has dishonorably took this oath violating the provision of disqualification of dual citizens as enshrined in the very constitution they claim by the said oath to uphold.

Hence, this matter should not be left in limbo as the facts now made known thro’ the Court of Appeal judgment is a grave public concern and threatens the very legitimacy of the composition of the supreme legislature and needs the respectful review of the Supreme Court as an ‘Urgent Matter’.

Honourable Attorney General too needs to file a motion seeking the said appeal be taken up as an urgent matter and pray for temporary suspension of the said MP to take part in the proceedings of the supreme legislature, pending review; as her status of Dual Citizenship has been established. The said MP has had her opportunity to present facts in contrary at the trial court – Court of Appeal. Motion for temporary suspension will be unprecedented but is an absolute necessity to protect the legitimacy of the composition of the legislature as it may compromise by persons with dual loyalty.

May the rule of law and rule by law reign supreme

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Latest comments

  • 2
    0

    If the oath was taken before the election. 19A is not talking from of disqualification application date. Apparently an MP before she/he entering the parliament and confirmed in the first sitting by speaker as an MP, is free of dual citizenship is qualified to hold the MP post. I don’t the reason why one can not have taken the oath for the nomination paper with dual citizenship. Oath is not asking to be free from dual citizenship then only one can be loyal to the country. Further constitutions is describing in it a dual citizen at any time may not perform duty loyally. A person submitting a nomination is not functioning as an MP. If the nomination paper had asked question that the application is dual citizen and MP had misrepresented that he/she is not they it is criminal offence. It is not proven at time of nomination the MP did have object(thought of) not to repudiate the dual citizenship. In that case it can be argued that MP had intention of not to perform loyally perform, but took auth or loyally perform.

    Australian constitution is talking about an MP when he/she is performing as an MP. Further all countries have constitution so why Australian position is important here? Its not enlightening anything here on the question if an MP can take the oath while arranging to repudiate the dual citizenship. The answer yes she/he can:

    1. Oath is nowhere mentioning the dual citizenship.
    2. Nomination application didn’t ask about the status of the citizenship.
    3.Constitution is not telling the MPs in future are not allowed to have dual citizenship because it is the opinion of republic’s people that a MP possessing dual citizenship cannot promise that she/he can perform the duty loyally. As constitution has not described the reason to preventing a MP why the dual citizenship not desirable, then it has to be treated as single citizenship is just desirable as per 19A. 19A cannot be invoked at the time of oath, but only at the time one start to perform as a MP. Sincerity in the oath is not necessarily be polluted by the disqualifications listed mentioned in 19A

  • 1
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    Dr.DJ, Dr Gomyn Dayasiri, Nagananda Kodittuwakku, Dr.Vasudeva N know and many others know MaRa is a qualified lawyer. MaRa as a party leader knew the legitimacy of her candidature. He was the Executive President too.

  • 1
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    Geetha should urgently seek advice from the current authority on Dual Citizenship loopholes one ‘Hit and Run Basil’ Rambutanpaksa of Riversdie Villa, Malwana.

    He also hold the definite hit list of all those who play at home AND away.

    If he is not available, Geetha should try Field Marshall Indestructible who is also a master of playing at Home AND away.

    • 2
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      Spring Koha ———————–“‘Hit and Run Basil’ Rambutanpaksa of Riversdie Villa, Malwana. He also hold the definite hit list of all those who play at home AND away.” ———— ————–Are we talking about organised car accidents?

  • 2
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    I have a different question on this citizenship matter. That is; Does a Sri Lankan who opts to obtain a citizenship of a foreign country loses the right to his/her “Birth Right” of being a citizen of Sri Lanka? Recently, it was reported that a person of Sri Lankan origin who obtained the citizenship of Canada was deported from India to Canada, as he held a passport of that country. Then there are two other persons, again who have obtained citizenship in Canada, waiting to be deported to Sri Lanka. Now the question is: Is Sri Lanka going to accept any of these “Deportees” OR deny them the entry to the country ? If they are permitted to enter the country, they have not lost their “Birth Right” of being a Sri Lankan. If, denied entry, to what country they belong to? A person who by profession handles these matters told me that a foreign national who obtains a citizenship of Canada, does not become a “Canadian” as a “Birth Right”, but it is only a “Privilege” that can be “withdrawn” at any given time depending on the circumstances. He also told me that the passport issued to such a “citizen” does mention under the item “citizenship” as “Canadian LK” meaning he/she is from Sri Lanka. Can Sri Lanka deny the entry to such persons stating that they have lost their “Sri Lankan Citizenship” as a result of obtaining citizenship of any other country. Then on the other hand, if,Sri Lanka accepts these two, that necessarily indicates the continuance of their “Birth Right” to be “Citizens of Sri Lanka” and therefore there is no necessity to obtain “Dual Citizenship”. In such circumstances, how do the provisions in the Constitution and Citizenship Act apply to such persons? These questions I am raising have RELEVANCY to this matter of unseating the MP under the provisions of the 19th Amendments to the Constitution and hopefully Supreme Courts will take a broader look at in arriving at a decision. Any thoughts on this matter?

    • 0
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      One thing to clear, Canadian Passport does not states Canadian LK, it is a false statement. Recent court decision in Canada in to the privilege issue also stated that it is not a privilege but a right of the person to hold the Canadian citizenship. If anybody is deported due to criminal activity to their birth country, it is very simple answer, once you have obtain a citizenship in a foreign country, you looses the right have the citizenship of the birth country and when it was revoked later you do not automatically gets the old rights back. If any body comes back to their birth country, they will be looked as a foreigner and not as a native.

    • 0
      3

      Birth right should be different from the right to represent as a national list MP. I think, Geetha is a National list MP simply recruited because of her publicity.

  • 0
    0

    realbuddhist: Thank you. I will check on (1) “CanadianLK” in the Passport (2) The “Recent Court Decision” you mentioned and how a “Canadian deportee” is accepted back into the country. Hope someone who has obtained a passport from Canada responds.

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