This infantile misadventure is quite unfortunate and unnecessary in respect of democracy, democratic elections, civil society role in the political system.
by Laksiri Fernando
“Everyone has the right to a nationality. No one
shall be arbitrarily deprived of his nationality nor deny the right to change
his nationality.” – Article 15, Universal Declaration of Human Rights
Instead of politically campaigning against, and
explaining to the people, the possible dangers of the return of the ‘Rajapaksa
family rule,’ two civil society activists opted to challenge the citizenship of
the SLPP candidate, Gotabaya Rajapaksa, at the Appeal Court at the last moment,
without allowing those matters to be settled at the Independent Election
Commission on the nominations day, if there were any doubts.
This infantile misadventure is quite unfortunate and
unnecessary in respect of democracy, democratic elections, civil society role
in the political system. The fallout unfortunately might disadvantage the
forces against GR candidacy and strengthen the SLPP constituency, at least in
the immediate context.
In a Voltaireian spirit, ‘one could oppose very
strongly GR candidacy for the presidency, but one should not oppose his right
to contest the election.’
The Appeal Court unanimously dismissed the writ application
after listening to the arguments on both sides, for four consecutive days. What
became reprehensible was the jeering and behavior of GR supporters in the
courtroom when the verdict was announced. It is also reported that one of the
applicants of the writ order has already been threatened and intimidated.
Extremism naturally breeds extremism.
Background
The background to the adventure perhaps was the
rumors floated and the so-called ‘whistle blowing’ on the assumed partiality of
the Chairperson of the Election Commission, a couple of weeks before. The news
was that ‘Mahinda Deshapriya Pledges Allegiance to Gota’ (Colombo Telegraph, 7
September 2019). The same report alleged that one of the Commission members,
Prof. Ratnajeevan Hoole, himself had expressed doubts about the renouncement of
GR’s US citizenship. It further reported that the same member of the Commission
also had expressed doubts about the dual citizenship certificate of GR issued
in November 2005.
Of course if you don’t trust the independence of the
Election Commission or the Chairperson, then you have to go before the Courts. Two
alleged grounds before the courts were (1) that GR has not properly renounced his
US citizenship and (2) more questionably or complicatedly, that his Dual
Citizenship Certificate signed by the then President, Mahinda Rajapaksa (his
brother of course) is not valid.
On the first matter I have no competence,
information or interest to talk about, but on the second matter, I have some
information and interest, given my own dual citizenship. My attention was first
drawn on this matter when a reputed ‘independent’ journalist, Rajan Phillips,
wrote on ‘Plenary Powers and Citizenship’ (Colombo Telegraph, 3 October 2019) bashing
the executive presidential system, as he
does, for every evil under the sun. This was quite irrational apart from
emotional. It may be that plenary power is something a defense lawyer had mentioned
at the court case, but it is not from any plenary power that a President signs
a dual citizenship certificate, according to what I have in my possession. It
derived from the Constitution before the 19th Amendment.
My Evidence
My evidence is my own Dual Citizenship Certificate,
a copy attached below, signed by the then President, Chandrika Kumaratunga!
If I may abstract what it contains in general terms,
both the declaration and the authority in approving a dual citizenship
certificate, it is as follows. This is Sample 1.
Sample
1: 1995-2005
Dual
Citizenship Certificate
Declaration
under Section 19 (2)/(3) of the Citizenship Act
WHEREAS ………………..of
……………has applied for a declaration under section 19 (2) (3) of the Citizenship
Act (Chapter 349) that he/she has resumed/retained the status of a citizen of
Sr Lanka although he/she has acquired/is acquiring the citizenship of a country
other than Sri Lanka alleging with respect to himself/herself the particulars
set out below:
And whereas the
President is satisfied that the said ……………………………has complied with the
requirements of the said section 19 (2)/(3).
Now Therefore,
pursuance of the powers conferred on the said section 19 (2)/(3) read with
section 44 of the Constitution the President declares that from the date of
this declaration /with effect from …………. the said has resumes/retains the
status of a citizen of Sri Lanka.
In witness
whereof I have hereinto subscribed by name,
………………..
………………………..
Secretary President
Date: ……………….
Ministry of
Defense, Colombo 1
It appears to me that the printed format that was
used in 1995 must have been the same format used in November 2005 for Gotabaya
Rajapaksa. This was just after the tenure of the President Chandrika
Kumaratunga. It must have also been the format perhaps used until the 19th
Amendment in May 2015, when most of the powers of the President, including the
grant of the dual citizenship, were curtailed or taken away. Let us not get
into that argument here, whether it was correct or not.
According to the text, the President is the
approving and the declaration authority, of dual citizenships under Section (2)
(3) of the Citizenship Act, as the Minister of Defense and in accordance with
Article 44 (2) of the Constitution before the 19th Amendment. It is
utterly wrong and hilarious to interpret and question the situation prior to
that amendment, on the basis of the 19th Amendment, or on one’s
whims and fancies, whoever the person under question. This is infantile
disorder.
According to the format, of course the President
does not necessarily need to sign the certificate although he/she can. The
Signature of the Secretary to the Ministry of Defense is sufficient, ‘in
witness whereof.’ As my certificate shows, an Assistant Secretary has signed
for the Secretary. But having realized that it is not sufficient, the person who
was coordinating the citizenship matters perhaps wanted to get the signature of
the President.
Unfortunate Circumstances
Therefore, the questioning of President Mahinda
Rajapaksa signing the certificate of Gotabaya Rajapaksa (although his brother),
does not at all appear rational to say the least. The questioning of the speed,
the circumstances or the process may raise some political or moral questions,
both ways, but not serious legal questions, in my opinion from the beginning when
I came to know the matter. I am not saying this after the verdict.
If the impetus for the questioning came from some
revelations or ‘whistle blowing’ of Prof Hoole, it is quite unfortunate. In the
article which I mentioned before, Ratnajeevan had given the following
information to the Colombo Telegraph.
“While looking at
GR’s Dual Citizenship Certificate on the 26th I asked him if he had signed his
own certificate as Defence Secretary, and he nonchalantly replied that his
predecessor had signed it. However, his predecessor could not have been Defence
Secretary on 30 Nov. I let it pass.”
The CT report also
stated “However none of the three commissioners scrutinized the documents or
indicated much interest in the affair.” It is quite possible that GR gave a dead-rope
to Ratnajeevan ‘nonchalantly’! What else one would say if you ask ‘did you sign
your own certificate!
After the 19th Amendment?
Sometimes, good things can emerge through bad deeds.
‘Every cloud has a silver lining,’ the saying goes. At least we can turn things
in that direction. The case filed by the two civil society activists has generated
some debate about the authority, procedure and conditions under which the dual
citizenships are being awarded in our motherland. That would have been a good
initiative if it were started before or without unduly politicizing the issue
or targeting a single person, however reprehensible his role has been in office
in the past.
I don’t have very many examples but can produced a
format under which the dual citizenships were being awarded since 2015. It may
be that it is now improved or changed, but this is the specimen I can produce
at the moment. This is Sample 2. For confidentiality, I cannot produce the
original or reveal the name of the person.
Sample
2: After 2015
Dual
Citizenship Certificate
Declaration
under Section 19 (3) of the Citizenship Act,
Where as (b)
………………… of (a) ………………has applied for declaration under Section 19 (3) of the
Citizenship Act, (Chapter 349) that she has retained the status of a citizen of
Sri Lanka although she is acquiring the citizenship of a country other than Sri
Lanka alleging with respect to herself the particulars set out overleaf.
And whereas the
Minister is satisfied that the said ……………….. has compiled with the requirements
of the said Section 19 (3).
Now therefore,
in pursuance of the powers conferred on him by the said section 19 (3) of the
citizenship Act No. 18 of 1948 as amended by Act No. 45 of 1987 the Minister
declares that with effect from (c ) ………….the said (b) ……………….. has retained the
status of a citizen of Sri Lanka.
In witness where
of I have subscribed by name.
…………………….
…………………………
Secretary
Minister
Date: ………….
There are obvious ‘minor’ errors like (a) coming
after (b), ‘whereas’ or ‘whereof’ spelled as two words (where as and where of),
and having only one gender, admirably however all as ‘she.’ Therefore my male
friend who showed me the certificate goes as ‘she.’ We all do make mistakes in
writing, but this is an official state document. In fairness, I must say, it is
possible that (a) (b) confusion is due to the Sinhala text translated into
English.
It appears even before the 19th
Amendment, but after the change in January 2015, it was not necessarily the
President who authorized the dual citizenships but a Minister. (It is also
possible that he also was issuing dual citizenship certificates). This may be
considered a great achievement by some. But the question is the Declaration or
the format that was used does not say what Minister. It is not printed.
The certificate I have seen was signed by John
Amaratunga. What ? Yes, John Amaratunga!
He has signed with his seal as the Minister of Public Order and
Christian Affairs in May 2015. His Secretary of the Ministry also has signed
the document, but I don’t want to reveal the name as he must be just a public
servant, if not a political appointee.
Conclusion
There can be few simple conclusions. (1) Politically
motivated legal challenges are reprehensible without proper legal or moral
basis. The JVP has already rejected Rajitha Senaratne’s insinuations about
legal challenges on similar grounds as ‘madness.’ (2) Even for your worst
political enemy, there should be some decency in dealing with political or
other issues. (3) Those who advocate democracy should follow those principles
first, like understanding human rights of everyone to have citizenship or
change it. (4) There are serious questions about civil society organizations
and activists based on the above discussed legal adventure and similar matters.
(5) Independence of civil society activities from partisan politics and/or
groups/cliques is of paramount importance.
(6) There are obvious defects and infirmities in the
procedures and authority of issuing dual citizenship certificates, before and
after 2015. These should be soon rectified and regularized with transparency.
(7) People who obtain dual citizenship, after paying so much of money, should
have a decent document (nicely printed!) without ambiguities. All dual
citizenship certificates that I have seen so far are extremely poor documents
issued before or after 2015. Sri Lankans
with dual citizenship should not be embarrassed of having to produce a pitiable
document to countries that they live in.
Post a Comment