Gota faces legal hurdle

A three-judge-bench comprising Court of Appeal (CA) Justices Yasantha Kodagoda (CA/President), Arjuna Obeysekara and Mahinda Samayawardena will consider the writ application challenging Gotabaya Rajapaksa’s citizenship status today. Romesh de Silva PC, appearing for the former Defence Secretary and SLPP presidential candidate, is expected to object the application’s maintainability. Following are the legal arguments presented against the citizenship status of Mr. Rajapaksa by the petitioners, civil society activists Gamini Viyangoda and Prof. Chandraguptha Thenuwara. 

CITIZENSHIP STATUS FOR CONTESTING ELECTION 

The Constitution maintains that all voters must be Sri Lankan citizens. Article 89 states: “No person shall be qualified to be an elector… if he is not a citizen of Sri Lanka…” The Constitution adds that any qualified elector too qualifies to be elected as a Member of Parliament (MP). If someone is disqualified from being an elector, they cannot contest in a parliamentary election. 

Furthermore, Article 91 states: “No person shall be qualified to be elected as a Member of Parliament if he is… a citizen of Sri Lanka who is also a citizen of any other country.” Additionally, the 19th Amendment introduced that: “Every person who is qualified to be an elector shall be qualified to be elected to the office of President unless he is not qualified to be elected as a Member of Parliament.” 

These provisions confirm that a dual-citizen or non-citizen of Sri  Lanka cannot contest a presidential election. This means Mr. Rajapaksa must reveal his documents renouncing US citizenship and his current Sri Lankan citizenship status to qualify as a presidential candidate. 

Between November  18 – 24, 2005, there was no secretary to the relevant ministry issuing dual-citizenship certificates and no person could have signed on behalf of such a secretary

APPLICATION FOR DUAL-CITIZENSHIP 

Interestingly, the petitioners do not challenge Mr. Rajapaksa’s US citizenship renunciation. They state that Mr. Rajapaksa was a former citizen of Sri Lanka before 2003. On or around January 31, 2003, he had obtained citizenship in another country, i.e. the US. From then onwards, Mr. Rajapaksa had ceased to be a Sri Lankan citizen under the Citizenship Act. Subsequently, he had to obtain dual-citizenship through the relevant ministry and get a new passport and National Identity Card (NIC) as he was not a Sri Lankan citizen at that time. 

The petitioners state that, thereafter, Mr. Rajapaksa had applied for dual-citizenship possibly between November  18 – 24,2005, soon after his brother Mahinda Rajapaksa was elected President. 

The petitioners argue that obtaining such a dual-citizenship certificate during that tenure was fraudulent. They contend that: 

• Mahinda Rajapaksa was Prime Minister (PM) before becoming President in November 2005. 
• Upon becoming President, Mahinda Rajapaksa ceased to be an MP and PM. 
• After Mahinda Rajapaksa was elected President on November 18, 2005, the Cabinet of Ministers stood dissolved as per Article 48 of the Constitution. 
• As the Cabinet stood dissolved, the secretaries to all ministries ceased to hold office. 

The petitioners note that new ministry secretaries were appointed by a gazette extraordinary dated December 13, 2005. They contest that between November  18 – 24, 2005, there was no secretary to the relevant ministry issuing dual-citizenship certificates, and no person could have signed on behalf of such a secretary, as falsely and fraudulently indicated in the dual-citizenship certificate. 

Therefore, Mr. Rajapaksa could not have handed over any application to the relevant secretary during this period. The petitioners emphasise that Mr. Rajapaksa did not apply for dual-citizenship as required under Section 19 of the Citizenship Act. They challenge that, among other things, the certificate is fraudulent, null-and-void and illegal. 

The petitioners also charge that this impugned dual-citizenship certificate was not issued by the authority prescribed by law, but purportedly by former President Mahinda Rajapaksa who was acting beyond his authority. They add that the Immigration Department or Defence Ministry possessed no file pertaining to Mr. Rajapaksa’s dual-citizenship certificate. The petitioners suggest that the records of the Immigration/Citizenship Department register had been tampered with to claim that such a certificate was issued to Mr. Rajapaksa. 

Petitioners seek interim orders: 

• To restrain respondents from acting on the basis that Gota is a Sri Lankan citizen 
• From holding out, representing or claiming Gota is a Sri Lankan citizen based on dual-citizenship  certificate 
• To suspend Gota’s passport, NIC until final hearing and determination of the case   

NEW PASSPORT AND NIC 

It was revealed that a new NIC and a passport were issued to Mr. Rajapaksa on October 4, 2016 and May 7, 2019 respectively. The petitioners challenge that if the impugned dual-citizenship is fraudulent and illegal, the NIC and passport obtained based on that certificate are also illegal, as Mr. Rajapaksa was not a Sri Lankan citizen when such documents were issued and had not properly obtained his dual-citizenship. 

Therefore, the petitioners are seeking orders quashing the alleged dual-citizenship certificate, passport and NIC, and also prohibiting the heads of the Immigration and Emigration Department and Registration of Persons Department and the minister and Secretary of Internal and Home Affairs from recognising Gotabaya Rajapaksa as a citizen of Sri  Lanka. 

INTERIM ORDERS 

The petitioners are also seeking an interim order against Mr. Rajapaksa and his agents from holding out, representing or claiming that he is a Sri Lankan citizen, and from acting on the basis of the alleged dual-citizenship certificate, until the hearing and determination of the writ applications. They are also seeking an interim order to suspend Mr. Rajapaksa’s passport and NIC until the final hearing and determination of the case. The petitioners also request another interim order to restrain P.S.B. Rathnayake - Controller General of Immigration and Emigration, Viyani Gunathilake - Commissioner General of the Registration of Persons Department, Internal and Home Affairs Minister Vajira Abeywardena and Gamini Seneviratne - Secretary to the ministry, from acting on the basis that Gotabaya Rajapaksa is a citizen of Sri Lanka, until the final hearing and determination of the application. 

Article 48 (1) of the Constitution: 

“On the Prime Minister ceasing to hold office by death, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the general election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers…” 

Citizenship Act

“Any person who ceases… 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…” Section 19(2) 

Citizenship qualification

“No person shall be qualified to be an elector … if he is not a citizen of Sri Lanka…” (Article 89)

“Every person who is qualified to be an elector shall be qualified to be elected as a Member of Parliament...” (Article 90) 

And if he is disqualified under Article 89 (if not a citizen), cannot contest to be a parliamentarian (Article 91)

No person shall be qualified to be elected as a Member of Parliament if he is…. “a citizen of Sri Lanka who is also a citizen of any other country…” (Article 91 (1) (d)(xiii) 

“Every person who is qualified to be an elector shall be qualified to be elected to the office of President unless, he is not qualified to be elected as a Member of Parliament  (Article 92)