• The EC & parties all highlight limited jurisdiction, means to ascertain dual citizenship status of candidates 
• Activists & polls monitors are vexed over institutional, legal stonewalling  

The recent removal of former State Minister Diana Gamage from her Parliamentary seat due to her United Kingdom citizenship has reignited debates surrounding Parliamentarians holding dual citizenship or being devoid of Sri Lankan citizenship. 

The latest incident, which was preceded by the removal of then-MP and incumbent State Minister Geetha Kumarasinghe's removal over her Switzerland citizenship several years ago, has shed light on the challenges faced by stakeholders in confirming citizenship related details, exacerbated by the reluctance of related government institutions to disclose MPs' citizenship-related information on grounds of privacy. Consequently, there is a burgeoning call for heightened accountability from the pertinent entities including political parties, starting with the process of nominating candidates for elections.

A three-Judge Supreme Court bench headed by Justice Janak de Silva recently ruled that Gamage is ineligible to be an MP following the conclusion of an appeal challenging the dismissal of a petition against her Parliamentary membership by the Court of Appeal (CA). Activist Oshala Herath had filed the relevant appeal two weeks after his initial petition regarding Gamage's Parliamentary seat and citizenship was dismissed by the CA.

The 21st Amendment to the Constitution, approved on 21 October 2022, reinstated certain provisions that were originally introduced in the 19th Amendment to the Constitution, enacted in 2015. In addition to the ever-existing requirement for Parliamentary candidates to hold Sri Lankan citizenship, the Amendment explicitly barred dual citizens from serving as MPs.

Challenges in verifying citizenship details

The Election Commission (EC), responsible for electing MPs, explained its incapacity to determine whether an election candidate holds dual citizenship, underscoring its lack of jurisdiction to intervene in such matters, even if it is aware of a particular candidate's dual citizenship status. Speaking to The Daily Morning, EC Chairperson R.M.A.L. Rathnayake highlighted that while there are several grounds specified for rejecting a candidate's nomination, holding dual citizenship is not among them. 

He explained: “The reasons for rejecting nominations are typically technical in nature. For instance, if an objection is raised regarding a candidate's dual citizenship status, we have a mere hour to make a final decision on the nomination. Within such a short timeframe, it's practically impossible to verify the candidate's dual citizenship.” 

He also emphasised the pivotal role of political party secretaries in ensuring that individuals suspected of holding dual citizenship are not allowed to contest elections and also urged those with dual citizenship or any other disqualification to act ethically and abstain from participating in elections.

Since the EC directed political party secretaries not to allow candidates suspected of holding dual citizenship to run for elections, The Daily Morning contacted ruling Sri Lanka Podujana Peramuna (SLPP) General Secretary and Government MP, attorney Sagara Kariyawasam for clarification. He outlined the challenge faced by party secretaries in verifying candidates' citizenship status, claiming that they lack the means to confirm whether individuals hold dual citizenship. 

However, he highlighted that during the nomination process for the recent Parliamentary Election in 2020, the SLPP took some proactive measures by obtaining affidavits from each candidate affirming that they do not hold dual citizenship, and are Sri Lankan citizens. 

“Our actions are limited in this regard. Even if a certain candidate possesses dual citizenship or has renounced Sri Lankan citizenship, the relevant foreign country may not disclose such information. No country will expose that they have granted citizenship to a particular person,” he said.

More dual citizen MPs?

Highlighting the unresolved issue of dual citizens serving as MPs, Ven. Omalpe Sobitha Thera, who is vocal on various socio-political issues, recently revealed that there are more than 10 MPs holding dual citizenship. He emphasised the necessity of removing such MPs from their positions prior to the elections. Furthermore, he called upon political party leaders to disclose any MPs from their respective parties who hold dual citizenship. Characterising such MPs as solely motivated by personal gain, he urged them to voluntarily resign from their posts. In the event of non-compliance, he warned of the potential need for legal action, acknowledging the time consuming and costly nature of such litigation on such matters. Sobhitha Thera's statement has however faced criticism on social media platforms with many individuals arguing that if he possesses information regarding MPs holding dual citizenship, he should publicly disclose the names and lodge formal complaints with the appropriate institutions rather than making vague statements.

Reluctant govt. institutions

When contacted by The Daily Morning, Herath elaborated on the challenges that he encountered in advancing the lawsuit that resulted in Gamage losing her Parliamentary seat. He expressed his appreciation for what he claimed was the maximum support provided by low tier public servants in the related Government institutions such as the Department of Immigration and Emigration and the Criminal Investigations Department (CID), and displeasure over higher-ups of the same institutions whom he said were in a state of slumber in relation to the issue. 

“Despite receiving personal level assistance from public officials, we faced significant obstacles in obtaining official support from the relevant institutions. For instance, it was due to the Controller General of Immigration and Emigration's actions (the incumbent Controller General being Harsha Ilukpitiya) that this case dragged on for so long. If not for his refusal to provide us with information, this matter would have been resolved much sooner. Even when it comes to the CID, higher ranking officials displayed reluctance to enforce the law. They opted to await guidance from the Attorney General (AG) rather than taking decisive action. Conversely, lower ranking CID officers expressed readiness to initiate appropriate action, but they were not issued orders,” he said.

Despite their official request for information pertaining to Gamage's citizenship, Herath said that the Immigration and Emigration Department (at the official level) claimed that disclosing details related to the citizenship of MPs constituted a private matter, thus denying access to the requested information. 

“It is essential to clarify that this issue is not about someone's personal information. Inquiries into the passports of ordinary citizens may indeed be considered personal matters, but, MPs, as elected public representatives, hold positions of public trust and accountability. The possession of dual citizenship impacts their eligibility to hold office. It is therefore not fair for the Immigration and Emigration Department to avoid divulging their citizenship related information citing privacy concerns,” he said.

Civil society advocacy

In the wake of the fresh discussion on certain MPs allegedly holding dual citizenship, or entirely lacking Sri Lankan citizenship, the People's Action for Free and Fair Elections (PAFFREL) is still awaiting a response from the Immigration and Emigration Department to a request made under the Right to Information (RTI) Act, No. 12 of 2016, seeking information pertaining to incumbent MPs' citizenship status. A representative of PAFFREL, speaking to The Daily Morning, said that they initially submitted a list of MPs' names to the Immigration and Emigration Department, seeking clarification on their citizenship status. However, the Department has refused to provide such information, citing privacy concerns. 

“We then took the matter to the RTI Commission by way of an appeal, emphasising that our inquiry pertained to elected representatives, not private individuals. The Department then informed us that they couldn't conduct a search based on names alone. Following further discussion, they indicated that providing additional details such as the National Identity Card (NIC) numbers and addresses would facilitate the search. Despite us furnishing that information, we received no response. Currently, we are preparing to approach the RTI Commission once again, as the Department has been uncooperative. Although they were instructed to provide the information, they have been slow to comply, even suggesting the closure of our appeal,” the representative said.

Parliamentary oversight & reforms

In response to a query by The Daily Morning, Deputy Speaker of the Parliament, Ajith Rajapakse recently conveyed that there are currently no explicit provisions empowering the Parliament to intervene directly in matters concerning MPs holding dual citizenship. However, he highlighted a potential avenue for addressing such concerns within the Parliamentary framework, if an issue regarding a specific MP's dual citizenship status is raised in the Parliament. In such an event, he said that Parliamentary procedures could facilitate an investigation into the matter.

Need for reforms

The recent cases surrounding MPs' citizenship status have brought to light significant challenges in ensuring transparency and accountability within the political landscape. The prolonged process that had to be followed to bring Gamage's case to an end, and the ongoing debates over dual citizenship highlight the need for systemic reforms to address these complexities effectively. While there is a growing demand for heightened accountability from political parties and the relevant government institutions, the reluctance to disclose MPs' citizenship-related information poses a significant hurdle. It is in the midst of these challenges that several parties continue to advocate for transparency and access to information through legal channels. Moving forward, it is imperative for the Parliament to consider legislative reforms that empower it to intervene in matters concerning MPs' citizenship status, particularly against the backdrop of the Constitution mentioning that dual citizens are not eligible to function as MPs, thereby upholding the principles of democratic governance and ensuring the integrity of the electoral process.