Diana loses Parliamentary seat as SC declares her disqualification

by Lakmal Sooriyagoda  

The Supreme Court in a landmark judgement yesterday held that State Minister Diana Gamage is disqualified to be a Member of Parliament and thus she is not entitled to hold office as a Member of Parliament, as she was not a citizen of Sri Lanka.  
With this Supreme Court judgement, Diana Gamage’s disqualification will lead to the loss of her parliamentary seat.  

With Supreme Court Justice Gamini Amarasekara and Justice Kumuduni Wickremasinghe agreeing, Justice Janak De Silva unanimously issued a Writ of Quo Warranto declaring that Diana Gamage is disqualified to be a Member of Parliament and thus not entitled to hold office as a Member of Parliament. The Supreme Court further ordered Diana Gamage to pay the costs of litigation to the petitioner Oshala Herath.  
The Supreme Court observed that the evidence before the Court establishes that Diana Gamage ceased to be a citizen of Sri Lanka upon acquiring British citizenship and failed to resume the status of citizen of Sri Lanka according to law. She is thereby disqualified to be a Member of Parliament by the Constitution.  
The Supreme Court delivered this judgment regarding the appeal petition filed challenging the Court of Appeal decision to dismiss a writ petition which challenged the legality of State Minister Diana Gamage’s parliamentary seat.  

With Court of Appeal Justice K.K.A.V. Swarnadhipathi agreeing, President of Court of Appeal Justice Nissanka Bandula Karunaratne on October 31, 2023 in his judgment held that the merits of the case do not warrant issuance of a writ order. Justice Karunaratne further observed that the petitioner had filed this petition without complying with the Supreme Court Rules.  

However, in a separate judgment, Justice M.A.R. Marikar held that the petitioner has proved a prima facie (at first view) case against the State Minister as decided in the case of Geetha Kumarasinghe.  
Subsequently, social activist Oshala Herath filed this appeal in the Supreme Court seeking an order in the nature of a Writ of Quo Warranto declaring that Diana Gamage is disqualified to be a Member of Parliament.  
The Supreme Court yesterday ordered to set aside both the majority and minority judgments of the Court of Appeal dated 31.10.2023 and held that Diana Gamage is not entitled to hold office as a Member of Parliament of the Democratic Socialist Republic of Sri Lanka.  

The judgment commenting on the submissions of Counsel Hafeel Farisz for the Petitioner that Diana Gamage was treated differently held “ It was submitted that such is a privilege only a very few people in the Republic are afforded, especially when suspected to have been in violation of the Immigrants and Emigrants Act. According to the Appellant, despite almost 3 years since the facts were reported, Diana Gamage continues to function as a Member of Parliament with the law not taking its course as it would against any normal citizen”.  
The Court observed that no one should be treated above the law. “Article 12 (1) of the Constitution states that all persons are equal before the law. The blindfold on Lady Justice depicts objectivity and impartiality. It is a direction to all judges, as well as all persons involved in the administration of justice, that all persons before the court should not be judged for their appearance, power, status, fame, or wealth, but solely for the strength of the claims or the evidence they are presenting. Our system of justice does not, and in practice should not, have one law for those in positions of power, privilege and responsibility and another for those who are not”, Justice Janak De Silva observed.   
Counsel Hafeel Farisz with Nishika Fonseka and Shannon Thilekaratne appeared for Petitioner Oshala Herath. Farman Cassim PC appeared for the Samagi Jana Balawegaya. Shavendra Fernando PC appeared for Diana Gamage.  

In his original application, the petitioner maintained that Diana Gamage at the time of signing her nomination papers and the holding of the 2020 General Election and taking oaths as a Member of Parliament and at all times material to the instant application was not a citizen of Sri Lanka. He further stated that she continues to hold office as a Member of Parliament without being a citizen of Sri Lanka.