DUAL NATIONALIATY ISSUE IN SRI LANKA
Posted on May 8th, 2017

Sarath Wijesnghe (Solicitor- Attorney –at –law and a former Ambassador)

Daul Nationality and Citizenship

Daul Nationality is a person’s citizenship states regarded as a citizen in more than one country, under laws of those states. There is no international convention which determines nationality or citizen’s status which defines exactly by national laws. The issue could be traced back to 1867 when Fenin Rising” an Irish – American was charges for treason in Ireland. British recognized perpetual allegations in citizenship issues and American Congress passed Expatriation Act in 1868 granting Americans freely denounce the US citizenship. British followed suit by formulating the British Nationality Law in 1948, removing restrictions on dual citizenship. Sri Lanka follows the British principles and models including Parliamentary procedures and allowed dual citizenships to Sri Lankans qualified. Daul citizenship is applicable to a person whose citizenship of Sri Lanka has ceased under S 19/20/21 of the citizenship act or Sri Lankan citizenship is likely to cease. This is a privilege extended to few countries such as Sri Lanka, Switzerland, Israel Australia, Barbados, Bangladesh, Canada, Cyprus, USA, South Korea, South Africa, Greece, France, Finland, Germany, Iraqi, Ireland, Hungary, Iceland, Sweden, Slovenia, Syria, Serbia, Armenia, Lebanon, Malta, Spain, Tango, Philippines, Sierra Leone, Pakistan, Portugal and Turkey. There are 53 countries with restrictions including India, Japan. Singapore and Nepal with reasons confined to their national laws on the decision on this national issue. This issue has raised new political and legal issues and complications in view of many other members of the Parliament alleged to hold daul citizenships and if so their eligibility to continue to be members of the Parliament. USA, British and Israel are pioneers of the concept and applicability of dual citizenship. In Israel there is a mechanism to obtain citizenship – dual- (Jus Sanguinis) on condition to abide by the requirement to military services, with right to return (conditional) though it is said that every Israeli worldwide has the right to be a citizen provided Jewishness is proved. UK and USA almost follow the same pattern.

Daul Citizenship is a privilege and not a right

Daul Nationality is not a right but a privilege for a citizen to enjoy the rights and privileges of one or more countries to enjoy rights to own properties, invest and conduct businesses and enjoy restricted privileges with the right to denounce or to be taken away by the state at any given stage. In Sri Lanka Daul Nationality holders could hold public office and be elected as a Member of the Parliament until the introduction not the 19th amendment to the Constitution of Sri Lanka expressly prohibited a citizen of Sri Lanka who is also a citizen of any other country from contesting elections. Today this issue has come to light with the decision of the Court of Appeal on the election of Hon Geetha Kumarasinghe to the parliament with the allegation that the office was held whilst she is still a citizen of Switzerland. The 19th amendment came in to effect on 15th may 2015. Nominations of the Parliamentary elections closed on 13th July 2015; as such it was theoretically possible for election department official to have rejected nomination papers with a candidate rendered ineligible on account of holding dual citizenship. The election commissioner apparently had no provision to reject the entire nomination list. Now that the MP has appealed against the order she could continue to be a Member of Parliament until the determination of the appeal. Holding public office by a non-national or a dual citizenship holder is a grey area to be resolved with the maize of citizenship issues and anticipated constitutional changes on the table. Appointments of Arjun Mahandran (Singaporean National) as the Governor central Bank and Gotabaya Rajapaksa ( Daul Citizenship holder) as the Defence Secretary may be topics of discussion in the forthcoming controversies to be resolved. This may be an important on constitutional making and the new dual citizen holders will have an impact on economy, society and legal system.

Legal Basis and issues

Legal basis and issues are still complicated. Like the 18th amendment 19th amendment is also a hurriedly drafted and passed legislation on various political strategies aiming at individuals rather than political ideologies or polices. It is no secret that the intention of the hurriedly passed legislation is to Block Mahinda Rajapaksa and Gotabaya Rajapaksa – the possible contenders in future power struggles, reminds us of blocking Mrs Bandaraneika by her rival J R jayawarden Government. These are political games manipulating the legal structure for the advantage of those in power. In the present controversy there is also a question on the jurisdiction as to whether the proper method should have been an election petition to the Supreme Court rather than the writ of Quo Warranto”, pleaded by the petitioners in the Court of Appeal, and the procedure adopted which will be canvassed heavily in the Supreme Court in the near future. This will open a floodgate of cases of many others with citizenships in other countries but elected before the 19th amendment. Supreme Court is the final appellate court with enormous powers inherent as well as from the legislature and the decisions will be taken considering the supremacy of the Parliament, intention of the legislature, power of the mandate of the people and supremacy of Parliament and inherent powers.

Threat of contempt and constitutionality

Now there is another development and threat to file further documents by the petitioners for contempt of court for citizen the court/judgment and not complying the order forthwith. Contempt of court is disobeying, offends, and disrespects the court order undermining the dignity and authority of the court, is some of the grounds of the offence, which will depend on the facts and circumstances and the allegations. The Article is clear in that No person shall be elected as a member of Parliament or to sit or vote in Parliament if Article 92 (b), 20 (4) 91 (1 (d) X111 is contravened, subject to appeal and valid explanation to the controller of immigration, and the Speaker of the Parliament. There is a misconception that the defendant or and accused will have no right to comment is a false notion based on hearsay, as there is ample opportunity to criticize the judgment/determination of the court/tribunal with the parameter.

In a cross road today

We are in a maze of controversies and a cross road in the citizenship issue in the absence of a proper nationality law as In the UK which is a living document with changes through practice and regulations, in the fast moving digital age. With the influx of uncontrolled offer of dual citizens unlike in other countries we are expecting dangers in the near future. In the United Kingdom and USA naturalisation is necessary to acquire the citizenship and to convert to dual later. There could be an imbalance on economy and defence if flood gate is allowed with no control and this is a warning signal to keep legs in other parts of the world. Israel citizens in the legislature in the USA are required to take allegiance on oath as Patriotic Americans as other citizens. The citizenship act no 18 of 1948 is out dated and inadequate with the modern trends and challenges and to be redrafted to be compatible with national standards/aspirations and international norms. When all other states are practicing protectionism it is time for us to adopt new measures through the proposed constitution in making.

Sarath Wijesinghe 0777880166- (sarath 7 @hotmail.co.uk)

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