Dual citizenship and law-making in Sri Lanka

Jathika Hela Urumaya (JHU) leader Patali Champika Ranawaka subsequent to the adoption of the 21st Amendment to the Constitution said that there are 10 members of Parliament with dual citizenship. He observed this to argue that there are people who illegally hold Parliament membership since the 21st Amendment proscribes Sri Lankans with dual citizenship from being MPs.

Yet, can this be possible? All except for former Finance Minister Basil Rajapaksa and Chairman of the United National Party Vajira Abeywardena were elected or appointed to the Parliament in 2020, under the 19th Amendment to the Constitution. Since the 19th Amendment disallowed dual citizenship holders from being elected or appointed to Parliament no law-abiding person could have sat in the current Parliament chamber as an MP.  

If there are MPs with dual citizenship in the current Parliament, he or she has not revealed their citizenship to the National Election Commission (NEC) when he or she tendered his nomination paper. Speaker Mahinda Yapa Abeywardena responding to media queries on the possibility of people with dual citizenship having been elected or appointed to Parliament had said that it was not up to the Parliament but to the NEC to find it out.

Since the 19th Amendment disallowed dual citizenship holders from being elected or appointed to Parliament no law-abiding person could have sat in the current Parliament chamber as an MP

The Chairman of the NEC Nimal Punchihewa says it is not the responsibility of the Commission to investigate into a person’s citizenship when he or she tenders nomination. Anybody can take the matter to the court if he possessed sufficient proof. This was the stand taken by former Chairman of the NEC Mahinda Deshapriya as well when allegations were levelled that Gotabaya Rajapaksa had handed over his nomination paper to the Commission for the last Presidential election in 2019, without renouncing his American citizenship. 

It was reported on Monday that the Department of Immigration and Emigration has looked into the current controversy over MPs secretly holding dual citizenship and prepared a report. In fact, only they have the authority and means to find it out. If the report revealed that any such person is among the 225 Parliamentarians, he or she would be expelled from the Parliament. That would most probably be the only discomfort they have to undergo. Whether Parliament can recover, as it should be the salaries, perks and cost of facilities they had fraudulently enjoyed since they were elected or appointed to Parliament is not clear. Probably nobody would take pains to recover them either.  

The accepted norm is that laws are made when relevant issues crop up. The ban on dual citizens contesting elections crept into the 19th Amendment to the Constitution in April 2015 particularly targeting Basil Rajapaksa

The accepted norm is that laws are made when relevant issues crop up. The ban on dual citizens contesting elections crept into the 19th Amendment to the Constitution in April 2015 particularly targeting Basil Rajapaksa, the youngest in the Rajapaksa family who as the Economic Development Minister in the Mahinda Rajapaksa Government had earned notoriety for corruption, for real or perceived reasons. He also earned the wrath of most Opposition parties of the day as he was said to be the mastermind behind most political decisions taken by the government that affected them. 

Most of the provisions of the 19th Amendment were responses to the demands by the people to reverse the actions of the Mahinda Rajapaksa Government. The President’s power to appoint top officials of the public sector and the judiciary were clipped in response to the highhanded actions and abuse of power by the Mahinda Rajapaksa Government. Similarly, the increase in corruption and manipulations of the media prompted the introduction of the provisions for the Right to Information (RTI). However, the provision on dual citizenship, in spite of it generally being a welcome move, was brought in particularly targeting Basil, irrespective of the fact that his dual citizenship was never instrumental to his actions. 

Then, in October 2020 under Gotabaya Rajapaksa Presidency, the 20th Amendment was adopted mainly to undo the effects of the 19th Amendment, especially the provisions concerning the powers of the President. By that time Basil Rajapaksa had made enemies even among the Mahinda Rajapaksa loyalists. Thus, a section of them such as Wimal Weerawansa, Udaya Gammanpila and Vasudeva Nanayakkara as well as some of the Sinhala nationalist organizations wanted the provisions in the 19th Amendment on dual citizens to remain. 

In Sri Lanka, many laws including Constitutional amendments have been adopted in the interest of powerful politicians or certain political parties, rather than the national interest

However, blood is thicker than water, they say. Gotabaya Rajapaksa who had renounced his American citizenship to become the President of Sri Lanka did not want to deprive his brother Basil of neither the fruits of American citizenship nor Parliamentary privileges and ministerial powers that will open up gold mines in every field. Wimal, Udaya and Vasu, especially the first two who had made this issue also to brag about their patriotism ultimately “temporarily” agreed with the President, claiming they had to give in to an “emotional plea” by the latter. They said that the President promised them to revert to the provision of the 19th Amendment in this regard when the new Constitution that he was planning to bring in soon is drafted. 
It was obvious that they knew that the President made this “emotional plea” on behalf of his brother. Yet, they did not oppose changing the basic law of the country in the interest of an individual who is also their chief adversary within the government ranks. They did not explain how they consented to a legal provision which they deemed to be against the national interests, though temporarily. What the country was going to gain by allowing the dual citizens to enter Parliament, though for a short period – until a new Constitution is brought in – was a question they failed to raise with the President or to explain to the country. 

In Sri Lanka, many laws including Constitutional amendments have been adopted in the interest of powerful politicians or certain political parties, rather than the national interest. The executive Presidency was introduced in October 1977 by the then Prime Minister J.R. Jayewardene in order to facilitate his economic policies with an iron fist. He was so eager to do so that he did not want to wait until his party brought in a new Constitution with its five-sixths majority in Parliament. It was introduced as the second amendment to the 1972 Constitution. 
Under the 1978 Constitution members of Parliament were banned from crossing over to other parties. Then President had second thoughts when he wanted to weaken the Opposition further and adopted the 2nd Amendment to the Constitution allowing the MPs to challenge their own parties if they are sacked from it. 

It was reported on Monday that the Department of Immigration and Emigration has looked into the current controversy over MPs secretly holding dual citizenship and prepared a report

Former Prime Minister Sirima Bandaranaike was stripped of her civic rights in 1980 over alleged corruption, bringing the government of President J.R. Jayewardene into disrepute. And the government saw a slump in the popularity of his government over economic issues and repressive activities as well, by 1982. Therefore, Jayewardene wanted to hold the Presidential election soon without any challenge from Mrs. Bandaranaike, his charismatic main rival. Hence he introduced the 3rd Amendment allowing an incumbent President to seek another mandate from the people. 

During the campaign for the Presidential election in 1988 which was thought to be favourable to Mrs. Bandaranaike, the UNP candidate and the then Prime Minister Ranasinghe Premadasa sought support from M.H.M. Ashraf, the leader of the Sri Lanka Muslim Congress, and Ashraf laid down a condition to bring down the cutoff point for the political parties to be qualified for seats from 12.5 per cent to 5 per cent. Later Ashraf told in public that during a discussion between him and Premadasa, the latter woke up the relevant officials at 2.00 am to instruct them to make the changes in law accordingly.   
In fact, it is this political culture that has to be changed before the laws are changed.