By Rashantha N. de Alwis-Seneviratne –
Rashantha N. de Alwis-Seneviratne
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.
Article 2.
- 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.
Article 7.
- 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.
Article 21.
- 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.
Article 29.
- 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.
Article 30.
- 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?
Amarasiri / May 5, 2015
Rashantha N. de Alwis-Seneviratne –
“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.”
“Article 30.
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”
Yes, the Earthlings, those who are born on Planet Earth, should have Earthling Rights. Colonialism and the wars, and especially WW 2 saw these Earthling rights removed for many Earthlings.
In Lanka, the Land of Native Veddah Aethho, we saw the Paras collectively, the Para-Sinhala and Para-Tamils and other Paras collectively removed the Earthling Rights for a section of the Earthling Paras from India, who were the Latest Paras to the Land of Native Veddah Aethho, in the early 1950s, notwithstanding the fact the the older Paras, were also Para from India.
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Simon / May 5, 2015
If you are a U s citizen then you cannot go kill 40,000 civilians.If you are a Chinese citizen then you can.Accirding to DJ and Malinda those who mess up tge future of the Sons if the soil need to be dons of the soil them selves. We cannot let the Yanks do ut for us simoly because we peasants are better at it. Our former oresudent is a war criminal. Now beat that.
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Alahakoon / May 5, 2015
Dual Citizenship is NOT a core human right and it is very new thing and evolving. Lot of countries still not allowing it. If you check India (receiving end of privilege) or Aus/US (benefit providers), they are changing their Dual Citizen act as latest as 2005, 2007.
Since this Dual Citizenship is new concept and not belong to any basic human values, it is ridiculous that somebody force each country to abide by this with 1948 UN human right laws..
Gay rights is a core human right. In SL gay people are laughed on their faces in public, they are insulted on public media.. Put your energy on more humane cause like this..
Wiki says..
Asia-Pacific:
Most countries in the Asia-Pacific region restrict or forbid dual citizenship. But in some of these countries (e.g. Iran, North Korea, Thailand), it is very difficult or even impossible for citizens to renounce their citizenship, even when naturalizing in another country.
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Off the Cuff / May 6, 2015
Dear Ms. Rashantha N. de Alwis-Seneviratne,
Alahakoon in his comment raises some pertinent questions that deserves an answer from you. I hope you will answer them.
I believe you have forgotten to discuss a salient fact “about the person” who is a Dual Citizen.
Sri Lankan citizens, living as long time residents, outside Lanka is not a recent phenomenon. There were Sri Lankans living and raising families while resident overseas most of their adult life, who continued to be Sri Lankan. Sometimes the spouses held different citizenship, one was Lankan the other foreign (please also read Gamarala’s May 6, 2015 at 4:57 am comment below).
Some Sri Lankans, for whatever reason, was not satisfied with that arrangement and voluntarily relinquished (or discarded) their Sri Lankan Citizenship in favour of acquiring a Foreign Citizenship.
That is the background against which the matters raised by you should be viewed.
Relinquishing Sri Lankan Citizenship had advantages as well as disadvantages. Perhaps the greatest disadvantage that the former Sri Lankan Citizens experienced was the LEGAL status of a foreigner in Sri Lanka.
Thus owning “Real Estate” became a problem. Purchase of Real Estate was subject to exorbitant tax (100% some time ago).
The way out of that was to obtain “Dual” citizenship and Dual Citizenship became a sine qua non for those who aspired to own Real Estate in Sri Lanka. The expense of Dual Citizenship was negligible to a person spending even 5 million to purchase property, in comparison to the Tax on foreign ownership.
Is there a prohibition on a dual citizen as a person obtaining public office?
I do not think so as all it takes is a change of status of that person from a Dual citizen to a Citizen. That is a sole discretion of the person concerned.
Thus the “Dual Citizen” who at one time voluntarily discarded Lankan Citizenship will now have to choose to discard the acquired citizenship of the foreign land and become a totally committed Sri Lankan Citizen again if the desire is to hold Public Office in Lanka (I am assuming that this is automatic, if not I hope someone will correct it).
Does that infringe on that person’s Human Rights?
I don’t think so and that charge seems frivolous to me. Others may have a different view but maintaining that view on the grounds of HR will be far fetched.
Kind Regards,
OTC
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Gamarala / May 6, 2015
Thank you OTC for comments.
My question was slightly different. A dual citizen living in another country originally had the option to retain permanent residency in THE OTHER COUNTRY. However having obtained the Citizenship in the other Country and a DC in Sri Lanka they now dont have the option of getting permanent residency in the other Country.
This will not be an issue for any person who want to live overseas and contest elections after the 19A as they can live in the other country as a permanent resident (long term visa) and remain only a Sri Lankan Citizen.
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Off the Cuff / May 7, 2015
Dear Gamarala,
Please see my comment addressed to Naga of May 7, 2015 at 1:14 am.
Kind Regards,
OTC
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Gamarala / May 7, 2015
Thank you OTC for the detailed explanation.
In your opinion, can this matter be contested now in court of Law by a person, who became a dual citizen before the implementation of 19A, or else is it legally binding even though the legislation is enacted retrospectively.
Also was it possible for a DC to object to this clause to the Supreme Court prior to the enactment of the 19A
(By the way I am only interested on the legality of this matter and has no personal interest).
Cheers GMR
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Off the Cuff / May 8, 2015
Dear Gamarala,
Re “In your opinion, can this matter be contested now in court of Law by a person, who became a dual citizen before the implementation of 19A, or else is it legally binding even though the legislation is enacted retrospectively.”
Please see Naga’s explanation (May 7, 2015 at 3:19 pm).
I think he is right as the SC’s power is limited to the Interpretation of the Constitution and cannot find fault with what has already become the Supreme Law. But your point about Retrospective action, will be an interpretation, if not specifically stated in 19A.
The SC is the sole authority empowered by the Constitution to interpret the Constitution and that question will fall under the SC’s jurisdiction.
Re “Also was it possible for a DC to object to this clause to the Supreme Court prior to the enactment of the 19A”
I believe he/she could have objected because that person would be an aggrieved party in the event the proposed provision in the 19A became law.
I being a layman will be posing these same questions to Naga who obviously has professional knowledge on the subject.
Please join the discussion there.
Kind Regards,
OTC
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Uthungan / May 5, 2015
We should be thankful to the author of this article for focusing on the point about the contradiction inherent in the 19th Amendment vis a vis the UN Human Rights Charter to which SL is a signatory.
It is clear the said clause which was included in the 19th Amendment was for the sole motive of preventing the likelihood of Gotabaya Rajapakse contesting a seat in the parliamentary elections is illegal and it should be contested in the SC.
Incidentally let me make it clear that I am no supporter of of the former Defence Minister or his brother the ex-President.
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MrRetort / May 5, 2015
Said clause is to prevent people with no or limited interest to get into high up political positions, do all wrong things and disappear after their period is over or when the going bad for them. If they are so keen on Sri Lanka and be a stake holder at all levels, they can select to shed the citizenship of the second country and contest elections. Enjoy best of both worlds and elusive act of an EEL cannot and should not be allowed sorry lady.
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paul / May 5, 2015
Hold your fire mate. Can you name just one person who did that.
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Medalankara de Choppe / May 5, 2015
Uthungan, It is good that dual citizens are so barred.There are more than Gotabaya and Basil with dual citizenship.They should be treated as beggars who had come on a visit
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paul / May 6, 2015
Frog in the well comment or a sour grapes comment? I do’t know which.
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PEACE / May 6, 2015
One doesn’t have to be a supporter of any of the Rajapakses to see through the vengeful action that they put the dual citizen clause to affect one person in one family. As a naturalized citizen of the US and a patriotic person, I certainly do not wish to subscribe to a vengeful dual citizenship. As a person who can contribute significantly to Sri Lanka, I will not do so under this revengeful environment. This administration is full of venom against the Rajapakses and anyone associated with them and in the long run, it affects the citizens of the country. RW should be eliminated from the political arena before he does more damage. Now MS has also lost power and power is in the hands of a 28 times defeated appointed PM who has not got a single vote from the people. He has then fooled MS and taken over. What does that spell D-I-C-T-A-T-O-R. He has no business to make any decisions for the people. He was not voted but he is the baby of the US. Spineless idiot who couldn’t end the war and the UNP tortured and killed our youth and now talking about Tamil grievances. Don’t the others have grievances too!! How much blood money has he got paid. It wont show as corruption.
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Sylvia Haik / May 5, 2015
Strangely, the conception of Human Right became an issue only after the wanton torture and massacre of 6 million Jews, 20 million Russians and millions of other humans on account of greed, prestige or warped beliefs in World War II. Before that after World War I thousands of horses were left abandoned and to fend for themselves when they were no longer needed. Before that millions were massacred on account of religion in the Crusades. During all these tragic times in the West, Buddhism was quietly advocating Human Rights and Animal Rights in the East for over 2500 years. Despite our own Gnanasara Thera and Wirathu of Burma destroying Buddhism, the West should get off their high horse and stop lecturing us on Human Rights which has sadly entered the debate on the Dual Citizenship.
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punchinilame / May 5, 2015
It is an undeniable right for a native of S.Lanka to obtain Dual Citizenshp as originally
provided in the Citizenship Act of 1948, which too has its checks and balances within
its regulations. This point being included in the 19th Amd. was directed at some
individuals, and those concerned could overcome the bar as set.
The State has placed curbs on those applying for it by fixing fees and extra-ordinary
expenses. A fee of Rs. 250,000/= for the main applicant followed by Rs.50,000/= for
each member of the family. For e.g. if the applicant is in Switzerland he would
further incur a documents authentication charges of Chf. 240/- at the Consulate plus 85.00 chf. Swiss Dept.documents fees, which will be approx. Rs.182,000/= for a family of say 4 !! The Dept. involved must be aware of these costs by now?
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paul / May 5, 2015
Hello Rushantha please do not waste your breath on this. The grass-eating loyal readership here do not have the capacity to comprehend what you are on about…
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EW Golding / May 5, 2015
No Paul don’t be so flippant and high sounding. At least one of the comments is perfectly pertinent. Dual Citizenship is a political and civil right (or maybe a privilege – that is still arguable). However it most certainly not a human right nor covered by the Rights of Man (as per 1789) or the Universal Declaration of the UN (as per 1948). That is an absurd basis on which to proceed.
I support DC but this lady’s approach is a sure fire way of getting it rejected. Keep out madam, you are doing more harm than good.
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Kumar David / May 6, 2015
I agree with EWG’s last point. DO NOT DEMAND Dual nationality as a right but explain how it can benefit Sri Lanka. There are three arguments.
a) Emotional
b) Financial
c) Psychological
If people love a country their assimilation will strengthen the nation’s emotional nexus. Dual nationals will visit often, bring in money and some will invest. Thirdly I have seen that nationals (single or dual) speak up and support their country (or countries) in seminars, aid forums and private conversations and Lanka needs as many friends as she can find.
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Native Vedda / May 6, 2015
Kumar David
I suggest you campaign for International (Common)Citizenship so that we can vote in all elections held in all countries, especially the elections in US and China.
US believes it is the world leader and China believes it is the middle kingdom and peacefully rising. Therefore we should have the right to vote and express our concerns and support.
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Sylvia Haik / May 6, 2015
I think poorer countries would benefit by offering Dual Citizenship to their former citizens because the benefits are massive with negligible disadvantages. E.g The Sri Lankans who left our shores in the 60’s and 70’s and before, must be reaching retiring age or drawing lucrative pensions from USA., UK., Canada, Switzerland, Germany, Austria, Italy, Australia and New Zealand. They are also likely to have acquired superior education and professional skills. Sri Lanka could use all these resources.
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cyril / May 5, 2015
We may sign and becoming parties to international treaties,however each soureign Nation can adopt a specific clause regarding holding high office as it so wishes.
The problem here is that the present 100day government has set a president of it’s own by permitting a dual citizen to hold such office.What next? nor does it give the right to swindle public funds and also hold office? your guess is good as mine.Any takers?
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CountryFirst / May 5, 2015
Rashantha – Comments in these columns are being made by people to whom wishful thinking is all that is needed to make anything Law!
Sadly, even the Constitutional lawyers who suggest Amendments do not seem to know the law, whether per SL’s own Constitution or per International Law.
A Fundamental Rights petition brought before the Supreme Court will determine this Dual Citisen issue very clearly. Especially with a Bill of Rights in the offing.
And hopefully, in as just and fair a manner as they determined that many Amendments included in 19A by Dr Jayampathy Wickramaratne needed Referenda by the People – even though referenda were what the government wanted to avoid at any cost!
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CountryFirst / May 5, 2015
Rashantha – Comments in these columns are being made by people to whom wishful thinking is all that is needed to make anything Law!
Sadly, even the Constitutional lawyers who suggest Amendments do not seem to know the law, whether per SL’s own Constitution or per International Law.
A Fundamental Rights petition brought before the Supreme Court will determine this Dual Citizenship Rights issue very clearly. Especially with a Bill of Rights in the offing.
And hopefully, in as just and fair a manner as they determined that many Amendments included in 19A by Dr Jayampathy Wickramaratne needed Referenda by the People – even though referenda were what the government wanted to avoid at any cost!
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jo jo / May 5, 2015
What are the other civil liberties not allowed other than the recently passed provision regarding ability to contest elections to a original Sri Lankan citizen who is now holding dual citizenship? Is’nt this legislation targeted for selected individuals with a political motive without open public discussion?
Why are our parliamentarians so cussed? Is a dual citizen a second class citizen?
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sarrij / May 6, 2015
I think it is a noble to grant dual citizenship.I also 6think that it is unwise to let dual citizens to be elected to political office because it poses a security risk; One has to be a bit sensible and practicle these days..
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Gamarala / May 6, 2015
I would like to pose a question of rights of a Dual Citizen (DC) who became a DC BEFORE implementation of the 19A.
Until the implementation of the 19A, a DC had the right to contest elections in Sri Lanka. It is on this understanding that a Sri Lankan would have applied for Citizenship in another country PRIOR TO 19A. (Alternative was to live as a permanent resident in another country with Sri Lankan Citizenship.)
This specific clause in 19A (apparently implemented retrospectively), has deprived the DC (who obtained Cd before 19A) the right to contest an election in SL.
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Jay / May 6, 2015
I just don’t see the big fuss in treating each other equally, SL has this kind of looking for things to divide people mentality, we need to collectively get over this mentality and treat people equal,period
If you have dual citizenship,then why break it up and create separate categories?
Dual citizen have a lot to contribute for our economy and social life ,let’s no focus on difference
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Upali Jayatilaka / May 6, 2015
One must examine the rationale for curbing the rights of DN.
The only explanation given is that MP after they are ousted may go to the other country.
One has to assume that such exit is on account of avoiding arrest and being accountable to their actions.
Hence is there no other legal mechanism that could be put in place than to just curb all DC rights.
On the other hand if its crime one is talking about, there are extradition treaties and they can be brought back. So DC of such countries should not have a problem.
Further world and global crime is becoming small. If the MP can be prosecuted in UK Australia Singapore or US the prosecution will not take 10 years. The detainees on remand will not have the privilege of being in hospital merchant ward. They will have equal treatment like other suspects.
The trial will be over in 6 months sentence will be much severe than in Sri Lanka. No cost to the public purse. No Presidential pardons. If at all after lapse of time you may be able to make an application to join the Sri Lankan Jailbirds as opposed to languishing in a foreign prison.
From Premadasa downwards the civil servants and professionals have doe the job of “ Kade Yame “ for politicians. You could understand the plight of the civil servants and professionals then. He was vicious, “ Mahathayata karanna bari nam kiyanna mamma suddusek Hoyagannam ”. One has to think of family and children. Those who defied can never obtain employment. That was the start of this pattern. Civil servants and professionals did not stick together. Hats off the Upul Jayasuriya. He mad history in the Legal Profession. They ask professionals advice on issues. People are professionals as they are expected to look at things objectively. That quality in our professionals has become more or less extinct. Power and financial reward is what they seek. That is what Yaha palanaya should address. Try and build a just Society. From Top and Bottom. The middle is beyond repair.
Jayampathy have you contributed in an objective manner. Mr Ajith Perera the frustration is obvious but, your frustration with the system and two individuals, Basil and Gota does not justify taking a sledgehammer.
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vichara / May 6, 2015
There is no doubt that this amendment is to keep the two Rajapaksas out of the Sri Lanka parliament. But this cannot prevent them from actively participating in politics.
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Sunil de Silva / May 6, 2015
An immigrant who becomes a US Citizen has to take an oath which in very clear terms requires the person to forswear allegiance to any foreign prince or state.
Can such a person be a MP – Minister or other public official whose primary loyalty has to be to SL
Unless of course the would be MP surrenders his US citizenship
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Dr.Rajasingham Narendran / May 6, 2015
Incidentally. the first governor of the central bank was a foreigner-Mr/Dr. Exeter. Arjuna Mahendran is not the first one.
Dr.RN
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bala / May 6, 2015
To obtain the answer to whether a dual citizen should or should not qualify to contest a General Election, just ask yourself the question:
If a major national issue arises between the the two Countries of which you are a citizen and you as a Parliamentarian have to vote either for or against, for which Country will you vote? (If you abstain you are loyal to neither and don’t deserve citizenship in any of those Countries!).
If you are a good dual citizen don’t get involved in politics (only vote!)
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Off the Cuff / May 6, 2015
Good point.
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Native Vedda / May 6, 2015
bala
“If you are a good dual citizen don’t get involved in politics (only vote!)”
Leave it to the local crooks.
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Denzel / May 6, 2015
It is pathetic that dual citizens are being treated like second class citizens.This is a political issue to block some individuals coming into power. Most of SL citizens while they are abroad send money back to SL and this fact should not be ignored.Most of them travel using our own air line and am sure the foreign exchange they send back to our country is helping the nation more than all of our parliamentarian put together.They use this hard earned foreign exchange by expatriates ( some are ling time residents of a foreign country who sent millions of rupees worth foreign currency to this land) to buy duty free cars and perks.First the fee for Dual citizenship was 5000 Rs and Premadasa made it to 100,000Rs and then it remained unchanged during Rajapakshas and Ravi Karunanayka made it to be 500,000Rs and then reduced it to be 250,000Rs.The sad fact is politicians tax heavily the people who earn foreign currency and now want to deprive them of their human rights too.This demonstrates that our politicians are vengenful,greedy oppertunistic lot never think of others.
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G. Pandith / May 6, 2015
It is sad that the writer does not understand what a constitution is and what an act states. Constitutional amendment supersedes any contrary legislation in any act.
If we have to go only by the Universal Human Rights, does any and all U.S. citizens have a right to contest for the presidency. The answer is no. Only those who were born in the U.S. or any one born to U.S. citizens at the time of birth (if this birth happens outside the U.S., could become the President of the U.S. (In The U.S. even those under the age of 35 cannot contest for presidency. Doesn’t that take away some rights of some citizens.) So anybody acquiring citizenship later are barred from becoming the President.
Similarly all those dual citizens of SL are those who have re-acquired SL citizenship. Also a person with dual citizenship is one who has divided (split) allegiance. A non dual citizen has complete allegiance to that country (Sri Lanka) Why should a person who does not have full allegiance be allowed to legislate us? There are other options and benefits for such a person becoming a dual citizen and we are against such persons legislating us.
Another moot point: Don’t we assert that we are sovereign. If so why shouldn’t we enact law to our liking. Don’t we have that much right?
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Naga / May 6, 2015
I agree with the author’s argument that debarring dual citizens from contesting as Members of Parliament will be a breach of their human rights.
Apart from breaching various articles of the Universal Declaration of Human Rights, such a ban will be in breach of Articles 25 and 26 of the Internationl Covenant of Civil and Political Rights (ICCPR). Sri Lanka has acceded to this international human rights treaty and has a duty to enforce the provisions of this important human rights convenant.
Article 25 of ICCPR states –
Every citizen shall have he right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions :
(a) to take part in the conduct of public affairs,directly or through freely chosen representatives;
(b) to vote and to be elected at genuine periodic eletions which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) to have access, on general terms of equality, to public service in the country.
Article 26 reads –
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Since Sri Lanka has acceded to the ICCPR it has a duty to ensure that the provisions of these articles are enforced.
Debarring dual citizens from contesting Parliamentary Elections will be in breach of Articles 25 and 26 of ICCPR.
The status of a dual citizen is the same as that of any citizen by descent and their fundamental rights cannot be denied or reduced. The conferring of dual citizenship, in legal terms, is really the resumption of their original citizenship. This resumption is provided for under Section 19 (2)of the Citizenship Act 1948 as amended in 1987 and 1993.
A Sri Lankan citizen may lose his/her citizenship either by renunciation (section 19(1)or by acquiring the citizenship of another country (sections 20 and 21). The amendments to the Citizenship Act 1948 by way of insertion of sub-section 19(2) provided for the full resumption of citizenship lost under sub-sections 19(1)or sections 20 or 21.
Sub-section 19(2) of the Citizenship Act of 1948 states:
Any person who ceases, under subsection (1) of this section or section 20 or section 21, to be a citizen of Sri Lanka may at any time thereafter make application to the Minister for a declaration that such person has resumed the status of a citizen of Sri Lanka, notwithstanding the fact that he is, and continues to be, a citizen of any other country and the Minister may make the declarations for which the application is made if he is satisfied that the making of such declaration would, in all circumstances of the case, be of benefit to Sri Lanka.
The term ‘dual citizenship’is a mis-normer. Strictly a reading of the law clearly indicates that what in fact happens here is the resumption of lost citizenship. Therefore, a person, who is declared by the relevant Minister to have resumed his/her citizenship should enjoy all the rights and privileges enjoyed by any other Sri Lankan citizen. That will include the right to contest Parliamentary Elections and elected as a Member of Parliament. This basic right cannot be removed by any Constitutional amendment. Passage of any such constitutional amendment will be in breach of Universal Declaration of Human rights and more specificaly in breach of Articles 25 and 26 of ICCPR. It will also be a breach of Fundamental Rights enshrined in the Sri Lankan Constitution.
With the Speaker yet to sign the 19th amendment to the constitution it is still not clear whether it includes the banning of dual citizens from contesting Parliamentary Elections. We need to wait and see whether it is really included. If it is included, there may be a challenge in the Supreme Court under a fundamental rights application.
If such an amendment is included, it will be clear that it is a vindictive action aimed at preventing Gothabaya Rajapakse who is reportedly a citizen of the United States from contesting the next Parliamentary Election.
Constitution is the basic law of the country and it should not be amended to suit the need of the hour of a particular political party or its leaders. This type of personally motivated amendments is peculiar to Sri Lanka. In countries like Australia no political party or leader will dare to bring amendments that would suit the need of the hour of the party or its leader. However, Ranil Wickremasinghe tried to amend the constitution to suit his needs but though the SLFP opposition had tried to put a stop to it, some personal agenda provisions like the one on dual citizenship might have escaped their attention. Further, the way these piece meal amendments were brought during the Committee Stage proceedings and hurriedly passed wihout adequate debate makes a mockery of constitution making. You will not see this type of constitution making in any true democracies, not certainly in countries like Australia or Canada or even in India.
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M.Yoga / May 6, 2015
Dual Nationality vs Single Nationality
Most Cases when a person changes nationality, this person will have to confirm to the country that the loyalty shall be to the country and constitution.
Assuming this person has dual nationality and become the leader (prime minister or president) of this country then this person will be incompetent to make decision when it is relates to his dual national country.
Secondly this person can be legally blocked from returning to his country where he holds this position, if he is visiting the dual national country where he may be legally responsible for breaching local legality. This may not apply for countries where the dual nationality does not reflect legal parameters.
I wanted to have dual nationality since I felt in my self my identity is Sri Lankan. Unfortunately the feeling is not enough since I have issues related to my employment since I am unable to travel in a short notice to countries since I need Visa and when all the pages are filled up with stamps to get a new passport takes time so it is reasonable to change the nationality. It is good to issue dual nationality but several countries do not want to have dual nationality since legal, financial and associated consequences.
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Off the Cuff / May 7, 2015
Dear Naga,
A very good and Enlightening analysis. Thank you.
Just a few questions, hope you can elaborate on them too for our information.
1. The 19A was vetted by the Supreme Court which apparently did not find anything ultra virus with the proposals on DC. How will that effect any subsequent challenge in the SC?
2. The question of conflict of interest raised by bala’s May 6, 2015 at 11:45 am, Sunil de Silva’s May 6, 2015 at 8:16 am and G. Pandith’s May 6, 2015 at 12:19 pm comments.
3. Since this is a Constitutional amendment won’t it supersede any conflict that may arise with any Act?
4. Again since this is a Constitutional amendment how will it affect those who obtained DC BEFORE 19A became Law? (ie will it be retroactive?) Please see Gamarala’s comment of May 6, 2015 at 4:57)
While researching the subject I found the following.
“The U.S. ratified the ICCPR in 1992. Upon ratification, the ICCPR became the “supreme law of the land” under the Supremacy Clause of the U.S. Constitution, which gives acceded treaties the status of federal law.” (https://www.aclu.org/faq-covenant-civil-political-rights-iccpr)
In the circumstances where does the restrictions pointed out by G. Pandith stand vis a vis the ICCPR?
Human Rights Committee Concluding observations on the fourth periodic report of the United States of America.
Voting rights
24. “…… The Committee is further concerned that voter identification and other recently introduced eligibility requirements
may impose excessive burdens on voters and result in de facto disenfranchisement of large numbers of voters, including members of minority groups. Finally, the Committee reiterates its concern that residents of the District of Columbia (D.C.) are denied the right to vote for and elect voting representatives to the United States Senate and House of Representatives (arts. 2, 10, 25 and 26)
.
(https://www.aclu.org/sites/default/files/assets/concluding_observations_on_u.s._fourth_periodic_report.pdf)
.
The report is informative and interesting reading. It contains a vide number of ICCPR violations by the USA under the following headings.
Applicability of the Covenant at national level.
Accountability for past human rights violations.
Racial disparities in the criminal justice system.
Racial profiling.
Death penalty.
Targeted killings using unmanned aerial vehicles (drones).
Gun violence.
Excessive use of force by law enforcement officials.
Legislation prohibiting torture.
Non – refoulement.
Trafficking and forced labour.
Immigrants.
Domestic violence.
Corporal punishment.
Non consensual psychiatric treatment.
Criminalization of homelessness
19. “….. the Committee is concerned about reports of criminalization of people living on the street for everyday activities such as eating, sleeping, sitting in particular areas, etc. The Committee notes that such criminalization raises concerns of discrimination and cruel, inhuman or degrading treatment (arts. 2 , 7, 9, 17 and 26)”
Conditions of detention and use of solitary confinement.
Detainees at Guantánamo Bay.
National Security Agency surveillance.
Juvenile justice and life imprisonment without parole.
Voting rights.
Rights of indigenous peoples.
Kind Regards,
OTC
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Naga / May 7, 2015
Hi Off the Cuff
I try to answer your particular questions with my limited knowledge of SL Constitution as I do not have access all the relevant Sri Lankan laws.
You asked:
1. The 19A was vetted by the Supreme Court which apparently did not find anything ultra virus with the proposals on DC. How will that effect any subsequent challenge in the SC?
I am not sure whether the proposals relating to dual citizenship were included in the original draft presented to the Supreme Court. I do not have a copy of the SC determination or the original draft constitutional amendment bill.
At the committee stage proceedings there were reportedly lot of confusion and the bill with many amendments to the original bil were rushed through at the committee stage at a very late hour. This appears to be the reason why it has not yet been submitted to the Speaker for his assent. Another problem is that lot of these MPs are semi-literates or simply illiterates and I wonder whether they understood the true meaning and impact of the provisions they were legislating.
As for the challenge in Supreme Court, there cannot be any challenge to a law enacted by the SL Parliament after the Act has been validly passed. This is because Parliament is supreme and the SL constitution does not allow any challenge in the Supreme Court to the validity of any legislation post facto. A Bill can be challenged in the Supreme Court as being against any provision/s of the Constitution only when it is gazetted or submitted to it as an urgent bill. This is provided for in Articles 77 and 78 of the Constitution.
However, I believe there can be a fundamental rights application but it is doubtful whether it will succeed as the SC may not have the jurisdiction to investigate into the validity or otherwise of a law passed by Parliament.
It appears to me that Parliament might have in the constitutional amendment added ‘dual citizenship’ as another disqualification to Article 91 of the Constitution which deals with qualifications to be elected as a Member of Parliament. The definition of ‘dual citizenship’ will then become important. Sri Lankan Constitution speaks of just one status of citizenship, that is, “the status of a citizen of Sri Lanka” (Article 26(1)). Article 26 (2) makes it clear that a citizen of Sri Lanka shall for all purposes be described as a “citizen of Sri Lanka”. Once a Sri Lankan citizen who has lost his/her citizenship by becoming citizen of another country resumes his/her Sri Lankan citizenship, then he/she has the “status of citizen of Sri Lanka” and the issue of dual citizenship does not arise.
2. The question of conflict of interest raised by bala’s May 6, 2015 at 11:45 am, Sunil de Silva’s May 6, 2015 at 8:16 am and G. Pandith’s May 6, 2015 at 12:19 pm comments.
Conflict of interest may not be a major problem. On rare occasions where there can be a perceived conflict of interest it would be better for that person to refrain from participating in the debate or vote in Parliament in relation to the matter that would give rise to conflict. The fact that that there may be conflict of interests should not be a reason to deny a Sri Lankan citizen who has resumed his SL citizenship the right to be elected as a Member of Parliament of his country of origin.
3.Since this is a Constitutional amendment won’t it supersede any conflict that may arise with any Act?
The general rule is that the provisions of a subsequent Act will prevail and will thus override in relation to any conflicts with the provisions of an existing Act. In the case of a conflict of the provisions of the Constitution and the provisions of an ordinary Act of Parliament, the latter provisions will be negated to the extent of the conflict.
4. Again since this is a Constitutional amendment how will it affect those who obtained DC BEFORE 19A became Law? (ie will it be retroactive?) Please see Gamarala’s comment of May 6, 2015 at 4:57)
Unless a legislation clearly states that it will have restrospective effect, it will only be prospective.
However, if the constitutional amendment makes dual citizenship a disqualification to be elected as a Member of Parliament and to act as a Member of Parliament, then a dual citizen who holfing the position of a Member of Parliament would be disqualfied to sit and vote as a Member of Parliament from the date the amendment takes effect.
5.The U.S. ratified the ICCPR in 1992. Upon ratification, the ICCPR became the “supreme law of the land” under the Supremacy Clause of the U.S. Constitution, which gives acceded treaties the status of federal law.” (https://www.aclu.org/faq-covenant-civil-political-rights-iccpr)
In the circumstances where does the restrictions pointed out by G. Pandith stand vis a vis the ICCPR?
Different countries have different rules in relation to giving effect to that country’s obligations under an international treaty.
In the United states, once a treaty is ratified it becomes a federal law. There is no need to bring specific legislation to give effect to the provisions of the treaty.
This may not be the case in other countries.
In Common Law countries like Sri Lanka and Australia, the provisions of an international treaty become law only if those provisions are included in a legislation and enacted by the Parliament. There has to be an enabling legislation passed by Parliament to give effect to the provisions of a treaty. I do not think that the provisions of ICCPR have been enacted as a local Sri Lankan law by any relevant enabling legislation.
However, Sri Lanka by being a signatory or having acceded to an international treaty, will have the obligation to ensure that these provisions are respected. It is usual for the treaty body to have periodic reviews of how the countries that have signed a treaty or acceded to a treaty are giving effect to the provisions. Any violations or failures will be noted by the treaty body.
United States, being the big bully, never cares about human rights but has the audacity to lecture on Human Rights to other less powerful countries. This is exactly what it is doing to Sri Lanka.
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