The Supreme Court five-judge-Bench headed by Chief Justice Priyasath Dep on Thursday (2) unanimously held that Galle district Parliamentarian Geetha Kumarasinghe is disqualified to be elected as a Member of Parliament since she holds dual citizenship.
The Supreme Court upheld the Court of Appeal judgment dated May 3 and its order in the nature of a Writ of Quo Warranto declaring that MP Geetha Kumarasinghe is disqualified to be a Member of Parliament and not entitled to hold office as an MP. Legal experts believe, the apex Court’s pronouncement can be considered a historical judgment since Court exercised an order in the nature of Quo Warranto in respect of legislative affairs signing that only qualified persons should be elected as Members of Parliament.
This is the first time in Sri Lanka the qualifications of a Parliamentarian has been challenged through a writ petition over a dual citizenship issue.
Writ Petition by five individuals
Five residents of Galle District filed a writ petition in the Court of Appeal under No. CA (Writ) 362/2015 challenging Geetha Kumarasinghe to show the authority under which she claims to hold office as an MP.
N.W.E. Buwaneka of Beddegama, J.K. Amarawardhana of Yatalamatta, A.C. Gunasekara of Unawatuna, J.K. Wijesinghe of Ambalangoda and H.L.Prasanna Deepthilal of Galle are the original petitioners of the writ petition filed in 2015. They maintained that Kumarasinghe is a holder of dual citizenship, namely, Sri Lanka and Switzerland, who contested the 2015 General Elections and had not divulged her dual citizenship at the time of submitting nominations. They stated, by virtue of the Constitution in particular section 20 of the 19th Amendment, Article 91(1)(d)(xiii) she is not qualified to be elected as a Member of Parliament.
They moved Court of Appeal to issue a mandate in the nature of Quo Warranto requiring Kumarasinghe to show by what authority she claims to hold office as an MP.
President’s Counsel J.C. Weliamuna appearing for the original petitioners had submitted to Court of Appeal that in terms of Article 91(1)(d)(xiii) of 19th Amendment to the Constitution, Kumarasinghe is not qualified to be elected as a Member of Parliament. He argued, there is no certificate from Switzerland authorities to confirm that she has abandoned her Swiss citizenship as claimed by Kumarasinghe.
The Court of Appeal by its judgment dated 3.5.2017, issued a Writ of Quo Warranto declaring that Geetha Kumarasinghe is disqualified to be a Member of Parliament and, she is not entitled to hold the office of Member of Parliament since she holds dual citizenship of both Switzerland and Sri Lanka.
The Court directed the Attorney General to take necessary steps to formulate a mechanism to recover expenses caused to the State by Kumarasinghe while she functioned as a Parliamentarian, sit and vote in Parliament in accordance with the Parliament Election Act.
Geetha appeals to SC
Aggrieved by the said judgment, Kumarasinghe had appealed to the Supreme Court on May 9.
On May 12, a three-judge-bench comprising Justice Buwaneka Aluvihare, Justice Priyantha Jayawardena and Justice Anil Goonaratne issued an Interim Order until May 15, staying the operation of judgment made by Court of Appeal. President’s Counsel Romesh de Silva appearing for MP Kumarasinghe on May 12 moved Court that an interim order be issued staying the operation of judgment made by Court of Appeal. President’s Counsel J.C. Weliamuna informed Court, his clients were yet to receive notices regarding the appeal and said, he was appearing in Court following newspaper publications that this matter is to be taken up for support on May 12.
Special Leave to Appeal
On May 15, a majority of a divided three-judge-Supreme Court bench granted special leave to appeal on a petition filed by Kumarasinghe. The Supreme Court fixed the matter for a later date, September 25.
President’s Counsel Romesh de Silva appearing for Kumarasinghe raised several issues regarding the Court of Appeal judgment, stating that the Court of Appeal had erred.
In his submissions, PC de Silva appearing for MP Kumarasinghe had informed Court, “She received Swiss citizenship upon her marriage in 1981. She got married to a Swiss citizen and automatically obtained Swiss citizenship.” PC Weliamuna in his submissions said, “Kumarasinghe is still holding the dual citizenship. She has misled the party, people, Parliament and Court. Following the Appeal Court judgment, she has made statements that tantamount to contempt of Court. The Constitution is the supreme law of the country. It overrides other laws in the country. Every laws and institutions including Parliament is bound by the Constitution.”
Then Senior Deputy Solicitor General Janak de Silva with Senior State Counsel Suren Gnanaraj appearing for the Secretary General of Parliament and Controller of Immigration and Emigration informed Court that a report submitted by the Department of Immigration and Emigration on August 26, 2015 had confirmed that Kumarasinghe was holding dual citizenship. He further said she had applied to be a Sri Lankan citizen in 2006, implying that she purposely wanted to hold dual citizenship.
Fuller Bench to hear Appeal
Several respondents, residents of Galle district who were original petitioners of Kumarasinghe’s dual citizenship case had filed motions in the Supreme Court seeking a fuller bench to hear the appeal. They had also requested an inquiry into the conduct and manner in which the Supreme Court appeal was handled by court officials including the Registrar of Supreme Court. Accordingly, the Chief Justice nominated a fuller bench comprising five judges of Supreme Court comprising, Chief Justice Priyasath Dep, Justice Buwaneka Aluvihare, Justice Sisira de Abrew, Justice Anil Goonaratne and Justice Nalin Perera.
On June 23, former Minister Piyasena Gamage sought Supreme Court permission to intervene into an appeal filed by Kumarasinghe. Gamage who received seventh highest preferential votes on the list of UPFA in the Galle District sought an order to dismiss the appeal filed by Kumarasinghe.
On July 7, The SC allowed former Minister Gamage to intervene into the appeal filed by Kumarasinghe, and decided to name Piyasena Gamage as the fifth respondent.
Supreme Court Judgment
On Thursday 2, the judgment was delivered by Supreme Court Judge Sisira de Abrew, a member of the five-judge-Bench and approved by four other judges, Chief Justice Priyasath Dep, Justice Buwaneka Aluwihare, Justice Anil Goonaratne and Justice Nalin Perera.
Geetha Kumarasinghe through her counsel had informed SC that she had sent document marked X1 to Swiss Authorities in Switzerland and document marked X2 to the Ambassador, Switzerland Embassy in Colombo. These letters which were in her custody were produced in the Supreme Court. The Court suspected whether these letters in fact were sent to the Swiss Authorities. “They were not produced in the Court of Appeal. They do not form part of the Court of Appeal record. The Court of Appeal was not given an opportunity to examine these documents. Considering the above, I refuse to consider these documents marked X1 and X2”, Justice Sisira de Abrew observed.
SC examines dual citizenship issue
One of the important questions that must be decided in this case is whether Geetha Samanmali Kumarasinghe was holding dual citizenship on the day of the Parliamentary Election, on 17.8.2015. The Controller General of Immigration and Emigration, in his affidavit filed in the Court of Appeal, states Kumarasinghe was granted dual citizenship (Sri Lanka and Switzerland) on 29.8.2006 under dual citizenship certificate No.17096. The Appellant, Kuamarasinghe too in her written submission filed in this Court on 14.7.2017 admits that she got married to a citizen of Switzerland and by virtue of the said marriage, she was granted citizenship of Switzerland by operation of law. If she says she has given up Switzerland citizenship she should state the date on which she gave it up.
Justice Abrew in his judgment held, Kumarasinghe could not be considered as a Member of Parliament, and that Parliament (Powers and Privileges) Act does not apply to her. Therefore, she cannot invoke Article 67 of the Constitution.
Writ of Quo Warranto
Kumarasinghe’s Attorney had contended that a Writ of Quo Warranto would not lie against a Member of Parliament. What is Quo Warranto? It is a remedy available to call upon a person holding a public office to show the authority under which he/she claims to hold office. “I hold that the Writ of Quo Warranto is a remedy available to call upon a person to show the authority under which he holds the public office and that if the holder of the public office is not legally entitled to hold the public office, Court has power to grant a Writ of Quo Warranto to oust him. Article 91(1)(d)(xiii) of the Constitution clearly states no person shall be qualified to be elected as a Member of Parliament or sit and vote in Parliament if he is a citizen of Sri Lanka who is also a citizen of any other country.
SC upholds Court of Appeal Judgment
The Supreme Court held that Kumarasinghe was disqualified to be elected as a Member of Parliament on 17.8.2015 and that she is not entitled to hold the office of MP. The Court of Appeal did not err in its judgment dated 3.5.2017. I affirm the judgment of the Court of Appeal and dismiss the appeal of the Appellant with costs, Justice Abrew concluded.
Petitioner says Victory for Democracy
Buwaneka Nanayakkara, an original petitioner who filed the writ petition along with four others told the Sunday Observer that the landmark judgment is a victory for the people. “We were compelled to institute legal action against Kumarasinghe after reading a newspaper article. In an interview to a newspaper, Kumarasinghe had said, she is holding dual citizenship (Sri Lanka and Switzerland),” he said. Human Rights Defender and Attorney at Law, Lakshan Dias said, the recent dual citizenship issue in relation to MP Kumarasinghe is a calculated political storm.
He said: “It’s my opinion citizenship issues are concerns of the State rather than people concerns. I believe, the recent dual citizenship issue in relation to MP Kumarasinghe is a calculated political storm. As per the 19th Amendment to the Constitution dual citizens are not qualified to sit as parliamentarians.
Geetha’s interview backfires
The unseating of Geetha Kumarasinghe from parliament came about mainly as a result of her own interview with the Sunday Observer during the former regime of Mahinda Rajapaksa.
The 63-year-old film-star-turned politician made a propaganda push for her election to the Southern Provincial Council in March 2014 by speaking to the newspaper two weeks earlier and declared: “Honesty, my best asset.”
It was her interview published on March 16, 2014 that was accepted, initially by the Court of Appeal and subsequently upheld by the Supreme Court, as the first instance of proof that she held dual nationality.
In her interview with the paper, she said she was capable of addressing any international forum and get assistance to improve the country’s health sector.
“I can do many more things than those who have served as Chief Ministers. I have seen what is happening in developed countries such as Switzerland because I am a citizen of Switzerland,” she said.
The two highest courts in the country held that she had the opportunity to prove she was not a Swiss national at the time of filing nominations for the August 2015 parliamentary elections, but she failed.
The court went onto say that her own letter to the Swiss authorities asking them to remove her Swiss nationality after the August 2015 elections confirmed that she was still holding both Sri Lankan and Swiss nationalities at the time of filing nominations and therefore disqualified to be a candidate.
The 19th amendment to the constitution barred dual nationals from becoming candidates at national elections