By 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”