By C. A. Chandraprema Courtesy The Island
Last Thursday, SLPP/JO presidential candidate Gotabaya Rajapaksa, addressing a gathering of local government representatives of the party at the Nelum Mawatha headquarters, finally made a public statement to the effect that he had relinquished his US citizenship; he had received a letter from the USA, stating that he had lost his US citizenship; he had submitted that document to the Department of Immigration and Emigration in Sri Lanka and got his old Sri Lankan passport which stated that he was a dual citizen of the USA cancelled and he had been issued with a new passport as a Sri Lankan citizen. Ever since Gota announced that he had taken steps to renounce his US citizenship, there has been speculation about whether the process was completed.
Even last Friday, the day after Gota made that statement at Nelum Mawatha a prominent columnist in an English language daily newspaper wrote that even members of the SLPP/JO were in the dark and Gota himself did not seem to have any interest in clearing the air. However, if all the steps that Gota mentioned at Nelum Mawatha, on Thursday have been fulfilled, then he has taken all the necessary steps to conclusively prove the loss of US citizenship, which we see mentioned in the Appeal Court and Supreme Court cases against Geetha Kumarasinghe. This is the first case we have for reference after dual citizenship was added to the list of disqualifications to contest elections.
What the SC said in this regard in the Geetha Kumarasinghe dual citizenship case was this: “If the 1st Respondent-Appellant (Geetha K) claims that she has got herself released from Switzerland citizenship she should have submitted her passport to the Controller General of Immigration and Emigration requesting him to make an endorsement nullifying her previous endorsement relating to dual citizen. Has she done it? If she has done it, this endorsement nullifying the previous endorsement should be available in her passport. But she has not produced a copy of her passport to the court.”
Procedure to renounce dual citizenship
From the Geetha K judgement delivered by five members of the Supreme Court in 2017, it seems clear that the conclusive moment when the Sri Lankan state accepts that a person has lost foreign citizenship is when the Department of Immigration and Emigration accepts the letter issued by the foreign government indicating that a person has lost his foreign citizenship and issues him an ordinary Sri Lankan passport. If the Department of Immigration and Emigration sees something amiss in a letter submitted by a foreign government stating that someone has relinquished his or her foreign citizenship, they would consult the Attorney General. At least in Geetha Kumarasinghe’s case the Attorney General was consulted and the AG instructed the Controller of Immigration and Emigration to obtain some clarifications from Geetha K, before accepting the letter.
Since Geetha K did not send in the clarification, she did not get an ordinary Sri Lankan passport. Since Gotabhaya Rajapaksa states that he has now been issued with an ordinary Sri Lankan passport after going through the procedure at the Immigration and Emigration Department, he has as far as the Sri Lankan state is concerned, done all that was needed to relinquish his US citizenship. It was just last Thursday that it was finally spelled out the way it should have been from the beginning. What we had earlier was people wondering aloud whether Gota had relinquished his US citizenship and the process had been completed. Various third parties were giving incomplete or unsatisfactory answers and spreading confusion all around.
The one-third party would say, “Of course he has relinquished his US citizenship!” another third party would say, “He has received the certificate acknowledging the loss of US citizenship.” Then the image of a document purporting to be Gota’s loss of citizenship certificate would appear in the social media to be quickly denounced as a forgery. Then a newspaper would carry the image of a document claiming that it was the real loss of citizenship certificate. Meanwhile, the state media would be carrying headlines stating that Gotabhaya Rajapaksa’s name had not yet appeared on the list of persons who have relinquished their US citizenship, which is published every quarter in the US federal register website and that this indicates that he has not yet totally lost his US citizenship even though he may have applied for renunciation.
Then a JO MP would say, “Well it has not appeared this quarter but it will appear in the next quarter’s list!”Another JO MP would say that Gota has received all the necessary documentation from the US but that they are not obliged to show the documents to anybody. The government and the JO seemed to be vying with each other to confuse matters. If things had gone on like that until nominations were called, it would have been a case of inviting disaster because of the absolute power that the Elections Commission assumes the moment they receive an objection to a presidential nomination on the basis of the qualifications listed in Articles 92 and 91 of the Constitution which includes the question of dual citizenship.
The Geetha Kumarasinghe case
It may be useful at this stage to look at the court cases that unseated Geetha Kumarasinghe on the grounds that she was a dual citizen. The case against Geetha was not an election petition as many people seem to believe, but an application for a Writ of Quo Warranto, filed before the Court of Appeal by five petitioners from the Galle district challenging Geetha Kumarasinghe to show by what authority she claimed to hold office as a Member of Parliament. The allegation was that she was not qualified to hold office as a Member of Parliament as she is a holder of citizenship of both Sri Lanka and Switzerland. The case was heard before Appeal Court Judges Vijith Malalgoda and Padman Surasena. Geetha Kumarasinghe was elected as a Member of Parliament on 17 August 2015 and had taken oaths before the Speaker on 1 September 2015. This Writ application against her was filed before the Court of Appeal after the 21day period for the filing of election petitions had lapsed.
The petitioners stated that Geetha K was a holder of a dual citizenship i. e. the citizenship of Sri Lanka as well as that of Switzerland, and that she had not divulged her dual citizenship at the time of submission of her nominations and that she was not qualified to hold office as a Member of Parliament according to Article 91(1)(d)(xiii) of the Constitution. When Geetha K’s nomination paper was produced in Court, it was found that she had signed certifying that she was not subject to any disqualification for election as a Member of Parliament. However, her current passport details provided by the Department of Immigration & Emigration to Courts indicated that she was a dual citizen.
The Controller General of the Department of Immigration and Emigration had informed Courts that according to the departmental records, Geetha K had applied for dual citizenship of Sri Lanka/Switzerland on 29 August 2006 and was registered as a dual citizen on that date under the Citizenship (Amendment) Act No. 45 of 1987. The dual citizenship certificate bearing No. 17096 had been issued to her on 19 September 2006. On 30 October 2015, Geetha K had applied for a diplomatic passport and requested that the same be issued without an endorsement that she was a dual citizen. In support of her claim that she was no longer a dual citizen, Geetha K submitted a letter dated 11 September 2015 issued by the Registry and Citizenship Services, Canton of Bern in Switzerland indicating that she had been released from Swiss Citizenship.
The Attorney General advised the Controller General of the Department of Immigration and Emigration to request Geetha K to clarify paragraph 4 of the letter issued by the Registry and Citizenship Services, Canton of Bern and to provide evidence that she had been released absolutely from Swiss Citizenship. However, Geetha K had not responded to this request for clarification as per the Attorney General’s advice. The Court of Appeal observed that in any case, the letter issued by the Registry and Citizenship Services, Canton of Bern would be effective only from the date of its issue 11 September 2015 which means that Geetha K had been holding unfettered dual citizenship at least up until that date. Hence the Court held that she had contested the Parliamentary Election, been elected and sworn in as a Member of Parliament and thereafter sat and voted in Parliament whilst being disqualified to have been elected to Parliament.
Geetha Kumarasinghe’s appeal to the Supreme Court against the Court of Appeal judgment was heard by a five-member Bench comprising Chief Justice Priyasath Dep and Justices B. P. Aluwihare, Sisira J de Abrew, Anil Goonerathna, and Nalin Perera. The Supreme Court observed that Geetha K had submitted to the Controller General of Immigration and Emigration, a letter dated 11 September 2015 alleged to have been issued by the Switzerland Authorities. The letter stated that Geetha had, on 25 August 2015, sent a letter to the Switzerland Authorities requesting that she be released from Switzerland citizenship. It also stated that she had been released from Switzerland citizenship, but the same letter suggested that her release from the Switzerland citizenship had not been made absolute. Though the lawyers appearing for Geetha argued that she had been released from Swiss citizenship on the basis of that letter, the Court refused to accept it and stressed that “if she says that she has given up Switzerland citizenship she should state the date on which she gave it up …”
The Court observed that the Petitioners contesting Geetha’s qualifications to be an MP had produced her current passport details and proved the fact that there was an endorsement in her passport to the effect that she was a dual citizen. The SC observed that if Geetha was trying to contend that she had given up the citizenship of Switzerland, the burden of proving the date on which she gave up citizenship of Switzerland shifted to her. The SC also observed that although Geetha K tried to rely on the letter purported to have been issued by the Switzerland Authorities, to prove that she had been released from Switzerland citizenship, paragraph 4 of the said letter raised a question whether she had been released absolutely.
When she was questioned on this matter by the Controller General of Immigration and Emigration (on the instructions of the Attorney General), she did not reply. The Court observed that there was an endorsement in her current passport to the effect that she was a dual citizen and that “if the 1st Respondent-Appellant (Geetha) claims that she has got herself released from Switzerland citizenship she should have submitted her passport to the Controller General of Immigration and Emigration, requesting him to make an endorsement nullifying her previous endorsement relating to dual citizen. Has she done it? If she has done it, this endorsement nullifying the previous endorsement should be available in her passport. But she has not produced a copy of her passport to the court.”
The SC observed that on 25 August 2015 when Geetha K applied for release from Swiss citizenship, she was a citizen of Switzerland. Thus, she was holding dual citizenship (of Switzerland and Sri Lanka) when she was elected a Member of Parliament on 17 August 2015 (the day of the Parliamentary Election) and that therefore she was not qualified to have been elected a Member of Parliament on that date.
Renunciations carefully checked
Several important matters need to be taken note of. In both the Court of Appeal and the Supreme Court, the question of whether Geetha Kumarasinghe’s release from Swiss Citizenship was ‘absolute’ had been considered. The mere fact that she had a letter from the Swiss authorities saying that she had been released did not suffice. The Department of Immigration and Emigration and the Attorney General’s Department wanted it confirmed that her release from Swiss citizenship was final and absolute. The wording on Geetha K’s letter of release from Switzerland had an ambiguous paragraph and that caught the attention of the Controller of Immigration and Emigration and the Attorney General’s Department and until it was resolved the whole process ground to a halt.
That shows that the mere fact that someone has received a letter saying that he is no longer a citizen of a foreign country will not be blindly accepted by the Department of Immigration and Emigration. They check back to see whether there are loose ends leaving the process of renunciation incomplete. The other thing that becomes clear from the Geetha Kumarasinghe cases is the absolutely pivotal role of the Department of Immigration and Emigration in determining the question of dual citizenship. The Citizenship Act vests all power in the Minister in charge of this Department. It’s the Department of Immigration and Emigration that confers dual citizenship on people and also cancels the same. It is to them that letters issued by foreign governments acknowledging the renunciation of a foreign citizenship are submitted and it is this Department that scrutinises those letters with the help of the Attorney General’s Department, where necessary.
What this means is that if the Department of Immigration and Emigration has accepted a letter regarding the renunciation of Gotabhaya Rajapaksa’s US citizenship, and issued him with an ordinary Sri Lankan passport, that’s the end of the story. When you look at the Geetha Kumarasinghe cases, you see that what undid her was that her current passport at the time of the election indicated she was a dual citizen as indeed it would, because she had not even applied for renouncing her Swiss citizenship until after the election. However, if she had contested the election with a passport which did not say that she was a dual citizen, she would still be an MP. What Gota announced, last Thursday, was that he now had a passport which did not say that he was a dual citizen, which in effect means that this whole question whether he is still a dual citizen or not, has been conclusively solved at least as far as the Sri Lankan state is concerned.
Precautions are still called for
However, the SLPP/JO is not out of the woods yet. According to the Presidential Elections Act, there are only three grounds on which objections can be raised to a nomination. Firstly, that it is apparent from the contents of the nomination paper that the candidate is not qualified to be elected as President; secondly that the candidate is disqualified by reason of conviction by a court of law for a corrupt or illegal practice or an election malpractice; and thirdly, that civic disability has been imposed on the candidate by Parliament. When it comes to objections raised on the second and third instances, the Elections Commission cannot decide on its own but has to refer such objections to the Supreme Court within three days after the day of nomination. Such petitions have to be heard by a five-member bench of the Supreme Court within a period of seven days. Unless and until the Supreme Court decides to uphold the objection the candidate concerned will stand nominated.
But when it comes to objections based on a candidate’s qualifications, the Elections Commission assumes unbridled power. It will decide what the term “apparent from the contents of the nomination paper” means in a context where the nominations paper is directly connected to the Constitutional provisions listing the qualifications of a presidential candidate through the declaration that the candidate signs. Given the judgment in the Geetha Kumarasinghe case, Gota would have been quite secure if the power to decide on a question of qualifications was vested in the Supreme Court. One would think that objections on easily ascertainable matters like conviction by a Court or being deprived of one’s civic rights by Parliament would have been left to the Elections Commission and the more complicated and contentious question of a candidate’s qualifications would have been left to the Supreme Court, but the present law has it the other way around.
One can see that yahapalana activists have gone into overdrive, making complaints to the police on Gota’s new Sri Lankan passport alleging that he had obtained it while still being a citizen of a foreign country. What we have is a biased Elections Commission, which is playing ball with the government on postponing elections and manipulating the timing of elections. This whole idea of having rushed PC elections just before the presidential election came from the Chairman of the Elections Commission, who showed little or no interest in having those elections held earlier. Since they have basically ignored the Supreme Court judgment about the role of the Elections Commissioner and his duty to hold elections in the 1998 case filed by Sunanda Deshapriya and Waruna Karunatilleke, they could just as easily ignore the guidelines on citizenship matters set in the Geetha Kumarasinghe cases. It’s vital for the SLPP/JO to take cognizance of who they are dealing with in the form of the Elections Commission and to take precautions accordingly.
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