By Sarath Wijesinghe

(Solicitor, Attorney-at-law, former Ambassador to UAE and Israel)

It appears Geetha Kumarasinghe (GK) has given up the fight having exhausted all possible remedies after the nomination of Piyasena Gamage (PG) the next in line on the list to Parliament, despite unforeseen and unfortunate personal tragedies. An energetic and committed MR supporter was trapped on the bait set for the Rajapaksa Clan to keep them away from active politics by MS and RW killing many birds with one stone by the hurriedly passed 19th amendment to the Constitution. There appear to be no international conventions which determine the laws of states available provisions to streamline the complicated nationality laws.

The issue on nationality laws could be traced back to 1867 when ‘Fenin Rising’ an Irish American was charged with treason in Ireland. The British recognized perpetual obligations in a citizen issues and American Congress passed the ‘Expatriation Act’ in 1868 allowing Americans to freely denounce US citizenship. The British followed suit by formulating the British nationality law in 1948 removing restrictions on dual citizenship and Sri Lanka now follows British principles, models and allowed dual citizenship to qualify as Sri Lankans.

Dual citizenship is applicable to a person whose Sri Lankan citizenship has ceased under S 10/20/21 of the Citizenship Act. Other options are available for different categories in the Act with many uncertainties and grey areas. Today the granting of dual citizenship is liberalized unlike before.

Dual Citizenships in other countries

Dual Citizenship is applicable and allowed in Sri Lanka in special circumstance following USA, UK, Switzerland and other counties where it is allowed and some countries such as Japan, Nepal, China, and Malaysia are countries restricting this facility/privilege to their citizens. By international customs each sovereign country has a right freely to determine who it will recognize as its national citizens. Nationality law is the law in each jurisdiction and the manner in which citizenship is acquired as well as how citizenship may be lost. A person who has no recognized nationality or citizenship is regarded stateless, yet they are global citizens who’s rights are protected by the world community including the United Nations Organisation and world bodies. The Indian labour force in Sri Lanka was once stateless, but was granted Sri Lankan citizenship based on negotiations and agreements. Currently there are stateless global citizens in Myanmar, and African countries. States adopt different procedures, laws and practices in restricting immigration to non-nationals with strict border controls when the movement of immigrants take place continually despite restrictions and barriers. Most stringent and difficult border controls can be found in rich counties such as USA, Japan, UK, and EU countries with high economic levels. Border controls in almost all states are streamlined today. Unofficial reports show Sri Lanka has over a few hundred thousand Indian, Pakistani, and citizens of other third world countries employed under the protection of errant politicians and employers. The amount is to be increased due to underemployment and want of labour in Sri Lanka.

Citizenship Act

Citizenship Act (16/11/19480) of Sri Lanka was amended on 18/48, 4/50/13/55, 45/87/15/93/47/93/16/67 until incorporated on 22nd May 1972 with two categories of citizens based on descent and registration in order to determine the states of citizens in Sri Lanka.

British and states of English Law extended to the Commonwealth including Sri Lanka (Ceylon then) with the introduction of British Nationality Act 1948 until 1960 when UK tightened rules due to an influx of Commonwealth citizens to UK. The British Nationality Act of 1981 came into force with many restrictions to acquire British Citizenship. Sri Lanka being a colony followed English jurisprudence law and conventions until Sri Lanka became independent. One wonders whether Sri Lanka is still changed or settled to keep up with the changing world.

There was mass exodus of Indian labour brought by the colonial masters. Thereby, the traditional ethnic balance of the Up county was changed by the addition of 11% to the population and full citizenship was granted to almost all except few who left voluntarily under the ‘Sirima-Sharathi Pact.’

The differences between citizen by decent and registration were introduced by incorporating the change of law to the legislature.

Illegal immigrants have been a threat to Sri Lanka that changed the ethnic balance in the Upcountry and brought about changes to the citizenship act that needs immediate and drastic changes.

Citizenship and validity of laws

Citizenship has a direct bearing on the election procedure and franchise Sri Lanka is enjoying from 1935 as a colony and from 1948 after independence, embracing parliamentary democracy quite successfully despite long-term terrorism by LTTE and ruthless killings and attempts to overthrow the legally formed government by JVP who are now trying to be in the mainstream indirectly siding with the government in power. Election law is introduced to the already complicated Legal system with a mixture of English, Roman Dutch, English and personal laws of major communities with barrage of case laws and highly contested litigation. Writ of ‘Quo Warrantor’ against Geetha Kumarasinghe challenging the validity of the election to the Parliament from the Galle PA list and her unseating by the Supreme Court, has shaken Parliament with a number of uncertainties with fears of unseating the entire list of candidates and changing the balance of the Parliamentarians as UNP 106, UPFA 95, JVP 6, TNA 16, EPDP 1, and SLMC 1. Hastily passed 19th Amendment to the Constitution to prevent the ‘Rajapaksa clan’ contesting future elections and extend the life of Parliament by 4 ½ years is akin to the infamous referendum in 1982 to extend the life of Parliament by Lamp and Pot votes which resulted in two JVP insurrections and rise of the LTTE which has ruined the country by taking it decades backwards.

Now that Piyasena Gamaga is nominated in place of Geetha Kumarasinghe, it appears that the matter is resolved leaving many legal complications for the future. Is a dual citizen of Sri Lanka, a Sri Lankan Citizen in the eyes of law, declarations and affidavits? Maybe considered as a grey area. But the legal position is that scar on the dual citizen is applicable only to Rajapaksa brothers and future contenders to be elected to the Parliament with the impediment of being a dual citizen.

Citizenship and Election law

Most leading legal experts were involved in this highly contested case of GK of her eligibility to be a Member of the Parliament on the grounds she is a dual national of Switzerland and Sri Lanka. In nutshell, the court observed she has admitted at some stage to the facts of the nationality and tried to take back the Nationality in writing before nominations with her position that she never acquired Swiss citizenship though the host country allegedly have offered it to her based on her marriage. A case was fought in CAA and SC on facts with no impact on the Nationality Law or Election law. Thereby the arguments and views of all schools of thoughts are left unchanged with uncertain grey areas including the dangers of disqualifying the entire list of nominees on the grounds that the other political parties objected to her nominations rejected by the Election Commissioner’s agent, the Returning Officer, based on section 115 of the Act which according to him is not authorised to refuse the list of candidates.

Now that the SC has determined GK was a Dual Citizen, will the list be cancelled or the opportunity given to the next in line, is the issue before the Executive not decided on the matter yet but prevented GK from entering the Chambers of Parliament. There was no litigation demanding cancellation of the entire nomination list!

Unanswered and unresolved matters

There are unanswered and unresolved matters that require clarifications and decision as a result of this episode that has bombarded Parliament with accusations that there are over twelve members of Parliament holding dual citizenship or with other nationalities not known to the Election Commissioner. Had GK not mentioned somewhere of the issue she claims to have resolved before nominations, her case too would be at a dead-end as foreign countries are reluctant to give information on nationality matters unless requested by the state in question. There is expert opinion that the Speaker, Secretary General, Election Commissioner or even the Controller of Immigration can communicate with the respective Embassies and would have resolved the matter before going through all the complicated and comprehensive procedure.

Therefore, it is timely for the Speaker to write to Embassies or countries and make inquiries for clarifications. But whether the Speaker would take such a step is doubtful. For a citizen to initiate such an action, there should be facts to be submitted to the courts in a writ application.

This situation raises unfortunate and ambiguous situations for the country in need of well qualified expatriates who are productive and love the country and are ready to serve as in other countries. Under Israeli Nationality laws, a citizen has the right to return and serve the State as most of Israelis live in other parts of the world especially USA, UK, West and developed countries.

Way forward

It is time to rethink changes to the outdated, ineffective and complicated Nationality Act towards a more productive proactive piece of legislation to enable expatriates holding different nationalities to serve the country better and to get them engaged and involved in political economic development programmes with no or little restrictions maintaining the integrity of the country, they are prepared to serve clearing the different and difficult areas preventing them returning.

Complications in the Act are to be clarified and streamlined. Stigma and barriers based on political enmities are to be removed with freedom to enjoy unrestricted movement and return, as in Israel. Children of parents and grandparents of citizens by birth who was born due to fathers being academics in international service who want to get involved in serving the motherland, should be given the opportunity to be actively and deeply involved in local politics for development and prosperity of the nation, whilst taking a cautious approach in granting dual citizenship. It is time to rethink and reconsider the legal basis of citizenship law on the needs, current demands, aspirations and challenges for development and prosperity.

Author takes responsibility for the contents and could be contacted on sarath7@hotmail.co.uk