As controversial as it is, former Member of Parliament (MP) and State Minister Diana Gamage’s case is special. Despite a constitutional provision that prohibits individuals with dual citizenship from functioning as an MP, she served as an MP and a State Minister for several years.
Although Gamage’s case received unprecedented attention, before her removal, in 2017, the Supreme Court (SC) held that MP Geetha Kumarasinghe was also disqualified to be elected as an MP because she held dual citizenship following which Kumarasinghe withdrew her Swiss citizenship.
We do not know if we would witness a comeback from Gamage. However, her case is important in terms of the political, legal, and social aspects of identifying and electing suitable public representatives. What we can learn from her case points out several lacunae in the process of electing and sending public representatives to the Parliament, especially because of the said constitutional provision.
Who is responsible?
The Constitution says in Article 91, which relates to the ‘disqualification for Election as an MP’ that a citizen of Sri Lanka, also being a citizen of any other country is one ground for a person to be disqualified to be elected as an MP or sit and vote in the Parliament. Although the Constitution says so and it seems like the Constitution can prevent persons with dual citizenship from entering or serving in the Parliament, in Gamage’s case, it became obvious that this constitutional provision alone cannot accomplish that.
Who should check the citizenship status of candidates?
One might think that it is the Election Commission (EC). But, as per the EC, it has no authority or a system to check the citizenship of a person during the nomination stage despite the said constitutional provision. EC Chairperson R.M.A.L. Rathnayake further explained that as per the existing laws, citizenship is a matter that should be taken to Court.
Should it be the Speaker of the Parliament? According to Speaker Mahinda Yapa Abeywardana, the dual citizenship status of an MP is not relevant to his role, and that it is a matter that should be addressed through the appropriate legal processes. Adding that the citizenship status is not relevant, he opines that what matters is a person being elected as an MP.
The Immigration and Emigration Department is the next party. While it is not legally bound to check MPs’ citizenship status, in Gamage’s case, its response as well, was questionable. When a Right to Information request was made by an election monitor to reveal Gamage’s citizenship status, the Department first declined to provide the said information citing various reasons including the information being of a ‘personal’ nature, and then, remained silent for some time. Later, it had provided inconsistent and unclear information. While there may be practical issues in providing such information including the lack of resources which is obviously affecting even the Department’s ordinary services, an RTI request being neglected as long as it can be questionable.
The common issue that applies to all these parties, which are the three main parties that are relevant to the matter of MPs’ citizenship, is them not being legally required to check or be concerned about the citizenship status of MPs. That also gives the impression that if there were such legal provisions, they would be required to check or support the process of checking MPs’ citizenship status. While it may not be practical or useful at the nomination stage of elections due to the high number of election candidates or the fact that they are yet to be elected as an MP, perhaps, these laws should focus on checking the citizenship status of candidates after elections and before them being sworn in as MPs.
Regardless, it is concerning that despite the existence of a constitutional provision, not having the laws, regulations, and policies to require MPs to reveal their citizenship status or documents confirming the same, is a huge challenge. While we can recommend that the Government enacts the necessary legal provisions and policies to ensure the implementation of the said constitutional provision, it is natural to have doubts about when the Parliament would introduce such legal reforms. Would MPs’ pass laws that can curtail their chances of becoming or remaining a citizen of another country, especially at a time when having such citizenship could be extremely useful in the event of migration, is a question worth asking.
Integrity & transparency
Honesty in politicians is a quality Sri Lankans ask for during every election and every political discussion, and the people have very diverse opinions about whether MPs can be trusted. However, until the necessary laws are passed and unless there is a Court case concerning an MP’s citizenship status, the country will have to rely on election candidates’ honesty and political parties’ transparency.
If there is no proper legal or other mechanism to require a certificate about an MP’s citizenship status – unless the MP in question is involved in a Court case concerning their citizenship status – honesty on the part of election candidates, or politicians, becomes a key aspect of the lessons that we can learn from Gamage’s case. While honesty may be rare, especially among politicians, the first and most rudimentary step in preventing conflicts based on MPs’ citizenship status is them being honest about their citizenship.
Thanks to Gamage, the constitutional provision concerning MPs’ citizenship – which did not receive sufficient attention despite being a crucial amendment introduced through the 21st Amendment to the Constitution – is now general knowledge. No election candidate can claim that they have not heard of it, and if one says so, they are not suitable to be an MP. An honest election candidate would reveal their citizenship status, firstly to prove their honesty, and secondly to prove their suitability to be elected as an MP. What any election candidate who is willing to be transparent about their suitability to be an MP would do is voluntarily reveal their citizenship status. This can be easily done when submitting their nominations or related applications, and if this becomes a norm, it would become a new standard to evaluate Sri Lankan politicians’ honesty.
However, to facilitate and encourage them to do so, political parties should also become more transparent. This responsibility lies primarily with the political parties’ general secretaries, who deal with the EC as representatives of these parties. They should take the initiative to help and urge election candidates to voluntarily reveal their citizenship status. Regardless of the legal situation about submitting documents on citizenship with nominations, parties’ general secretaries can impose a rule at the party level to require such a document to be considered for nominations. Since there is little to no legal backing to mandatorily require such, if a certain election candidate refuses to confirm their citizenship, in most cases, it could be a clear sign that they are trying to hide their citizenship status. Based on that, parties can turn down their applications, and that is a decision that parties have the discretion to make. At the same time, the relevant political parties should, as per the existing laws, reveal that information wherever necessary.
The honesty related aspect of MPs’ citizenship status was extensively discussed in the SC verdict in Gamage’s case which was issued earlier this month (May). As was noted even in the SC verdict, Gamage had chosen to enjoy her constitutionally guaranteed right to remain silent, which helped her refrain from disclosing information about her citizenship status, which may have most likely been disadvantageous to her. The SC verdict explained this situation, noting that other than a mere denial of her British citizenship, Gamage had made no assertion of regaining the status of a citizen by due process.
In this context, it is evident that honesty on the part of both election candidates and political parties that field candidates is a must. While the former has a responsibility to reveal all the relevant information, the respective political parties must also educate and direct candidates to reveal the relevant information.
However, realistically, we cannot expect election candidates or politicians and political parties to be honest to such an extent. After all, in reality, politicians are unlikely to take decisions that could jeopardise their powers and positions. That is why we must emphasise on the role that citizens should and can play in exposing MPs with dual citizenship. In Gamage’s case, it was an activist that pointed out what is wrong with Gamage’s citizenship, while both the party through which she was elected to the Parliament, i.e. the main Parliamentary Opposition, the Samagi Jana Balawegaya, and the party she worked with, the Sri Lanka Podujana Peramuna, were silent about Gamage’s citizenship even after the Court case commenced.