Moral issue for dual citizen candidacies : Citizenship legalities cloud presidential contest | Sunday Observer

Moral issue for dual citizen candidacies : Citizenship legalities cloud presidential contest

28 July, 2019

Is a dual citizen as loyal to a country as a citizen with undivided loyalties? Is a dual citizen qualified to be bestowed the nation’s executive leadership?

As the next presidential election looms on the political horizon, citizens may have to watch a legal drama first, before they actually vote, if the issue of foreign citizenship is brought to the fore by certain political personalities - controversial ones - entering the fray. The nation has, for some time, watched as the political destiny of one of the country’s currently most formidable personas is threaded through the legal complexities of citizenship status with much media speculation about qualification for candidacy.

But, some legal experts point out that, in the absence of specific legal provisions to reinforce the 19th Amendment to the Constitution, former Defence Ministry Secretary Gotabaya Rajapaksa, may not be disqualified from contesting the presidency even if renunciation of his US citizenship falls short of the election day.

Although he has yet to officially announce it, former President Mahinda Rajapaksa’s younger brother, Gotabaya, who is a dual citizen of Sri Lanka and the United States, has made it clear that he would be contesting the upcoming Presidential election to be held on or before December 8, 2019.

However, Rajapaksa’s support base within the Joint Opposition and especially among the seniors has not been unanimous. The Sri Lanka Podu Jana Peramuna (SLPP) is poised to announce its presidential hopeful at its first national convention on August 11.

A number of constitutional law experts say that the former Defence Secretary’s candidacy as a dual citizen, will be more of a political and an ethical issue rather than a legal matter. This is because, in accordance with the 19th Amendment, a specific provision required to empower the Election Commission to reject such nominations for the presidency is yet to be incorporated in the law book.

The 19th Amendment to the Constitution, brought in April 2015, in no uncertain terms, dictated that a dual citizen cannot run for presidency in Sri Lanka. The constitutional amendment also raised the minimum age to run for the country’s top office to 35 years. Legal circles, however, believe that the only option for an interested party to challenge the candidacy of a dual citizen is to petition the Supreme Court after nominations are closed.

A senior lawyer who is well versed in the Presidential Elections Act, however, offered a second option: that is, to move courts before the nominations are called by the Elections Commission. In anticipation, the courts can be asked for a ruling to compel the National Election Commission (NEC) not to accept the nomination of a dual citizen.

“There is no precedence for us to know what will happen in such a court case concerning a Presidential candidate,” a NEC official said. The upcoming election is the first presidential election to be held after the 19th Amendment, a law that substantially pruned the powers of the Executive in addition to restricting its term to five years from six, was introduced.

On November 2, 2017 former Member of Parliament Geetha Kumarasinghe lost her parliamentary seat, in a petition that argued that the Sri Lankan Constitution did not allow dual citizens from holding a seat in Parliament. Her nomination to contest the General Election in August 2015, was challenged in court on the basis that she was a dual citizen of Switzerland.

Kumarasinghe, a former actress turned MP, appealed against the ruling in May 2017 but after six months the ruling disqualifying her from MP position was upheld by the Appeal Court. The petition against her was filed in March 2015 by four persons in her electorate, Galle and the legal fight took over two years to wrap up, a senior lawyer said pointing out the unlikelihood of extracting a negative ruling against a sitting President if a similar case is filed against the former Defence Secretary after his successful election to the office.

In August last year, moves were afoot to put together specific provisions to give effect to the 19-A. A draft law to empower the NEC to effectively implement the 19-A was being penned under the auspices of the Prime Minister’s office. But according to Elections Commission sources and PAFFREL, an independent elections monitor, so far the proposed law has not reached the legislature to go through the required process for enactment. It seems the process remains dormant if it has not suffered a stillbirth already.

Minister Naveen Dissanayake a few weeks ago raised the matter in one of the internal meetings of the government, authoritative sources said. He had inquired what happened to the mystery draft and if the law would be presented in parliament soon.

The Elections Commission has also discussed the matter of the dual citizenship of the former Defence Secretary among its members. It is learnt that while there had been views that the commission must be proactive and seek proof of ending the dual citizenship by the former Defence Secretary, it was also argued that to ‘inquire into it is also interfering in the election’.

Hence, the NEC has concluded that if Rajapaksa files his nomination, ‘then someone must object in which case the Supreme Court must make a determination within a week’.