The Universal Declaration of Human Rights, which was adopted by the UN General Assembly on 10 December 1948, was the result of the experience of the Second World War. World leaders decided to complement the UN Charter with a road map to guarantee the rights of every individual everywhere. It represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights.
Whatever our nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status, the international community on December 10 1948 made a commitment to upholding dignity and justice for all of us. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human right
President’s Counsel Dr. Jayampathy Wickramaratne, a member of the Committee on the Draft Amendment to the Constitution, says that being a Sri Lankan citizen is an ‘essential qualification’ for contesting a General Election in the country. This is the law the world over and is not unique to Sri Lanka, that only a citizen of a country can hold public office. That it would be a prerequisite is also common sense as otherwise, anyone from another country could hold public office in Sri Lanka. Having said that, I believe we have a ‘first’ in Mr. Mahendran being a non-national and the head of the Central Bank. However, I am more interested in the rights of a dual national and not of a non-national.
The Deputy Minister of Foreign Affairs, Mr. Ajith P. Perera, said at a press conference recently that, according to the provisions included in the 19th amendment to the constitution, Sri Lankan nationals who possess dual citizenship are not permitted to contest in the General Election.
What is the basis for such an announcement? The questions that spring to my mind are:
a. Is a dual national of Sri Lanka not a citizen?
b. If so, what is the legal status of a dual national of Sri Lanka?
c. Does a dual national enjoy lesser rights than a national who does not hold dual nationality?
d. Can a national law that is contrary to the Universal Declaration of Human Rights, be legal?
e. Is this provision embedded in the Dual Nationality Act of Sri Lanka?
f. If it is not, can it be included in the 19A or any amendment to the Constitution without the Supreme Court’s approval?
The preamble to the Universal Declaration of Human Rights says ‘’ …the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’’ As the Charter goes on to extrapolate, ‘’the peoples of the United Nations have in the Charter, reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom.’’
A national of a country is a citizen. This means, simply, that such a person is a member of a state. Under International Law, Nationality is synonymous with citizenship. There may technical differences i.e. like acquiring citizenship by Naturalization but once naturalized, a person is no different to a citizen. There are countries that do not recgonise dual nationality for e.g. Singapore and until recently, Australia. However, those that do, recognise the right of a citizen to acquire rights of citizenship in another country. For tax and legal purposes, there may be agreements between these countries that share citizens. However, the citizenship rights that a dual national enjoys cannot be subservient or unequal to those of a non-dual national of the country, as that would be contrary to the Human rights Charter.
Sri Lankan nationality may be regained at a price but does Mr. Ajith Perera mean that the nationality regained by paying for it, is not the same as the nationality he or she lost and if so, what is the person paying to get? A half-nationality? A reduction in citizenship rights?
The following Articles of the HR Charter are clear and unambiguous and may refresh the memory of some people.
- Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
- All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
- Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
- Everyone has the right of equal access to public service in his country.
- The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
- Everyone has duties to the community in which alone the free and full development of his personality is possible.
- In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
- These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
- Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein
Through ratification of international human rights treaties, Governments undertake to put into place, domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, should provide the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.
I would like to draw attention to Article 30, particularly, where it is evident that a law like the one envisaged by Mr. Ajith Perera, would not agree with the UN Charter simply because it specifically targets dual nationals of Sri Lanka by interfering with and destroying their inalienable rights as lawful citizens of this country. Such a law also insults thousands of dual nationals of Sri Lanka by targeting them as a group and by demeaning the value of their Sri Lankan nationality. Non-discrimination is a cross-cutting principle in international human rights law and is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”
It is most strange, therefore, that such a law would completely contradict what the current government website on acquiring Dual Citizenship in Sri Lanka says: ‘’Our aim is to assist ex-Sri Lankans living overseas with talents, knowledge and resources to acquire legal status in Sri Lanka again so they can positively and proudly contribute to the socio-economic development of the country and to reconnect again with mother Lanka.’’
The legality of the declaration by the deputy Foreign Minister, in my opinion, is therefore illegal, as it undermines the essence of the Human Rights Charter. If, as he says, it sits within the 19A, I seriously doubt that it was ever included in the amendment that was sent to the Supreme Court for their ruling, as there was no mention of it in that ruling. The judgement of the Supreme Court disallowed the pruning of Presidential powers as intended by the 19th Amendment, their view being that such an amendment required a National Referendum and that not even a two thirds majority of Parliament would suffice. With regard to a fundamental Human Right of this nature, the Supreme Court will have no alternative but to rule in line with International Law which adheres very strictly to upholding the HR Charter, especially if such a provision cannot be found in the local law i.e. the Dual Citizenship Act.
The State i.e. the Sri Lankan State, is duty bound to refrain from interfering with or curtailing the enjoyment of human rights of the citizen. The obligation to protect requires States to protect individuals and groups against human rights abuses. In that case, is the Sri Lankan State willing to put herself in the position of abuser?