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Geetha disqualified for ‘double acting’ in the House
Geetha Samanmali Kumarasinghe became the first Member of Parliament (MP) to be disqualified from her Parliament seat under the 19th Amendment to the Constitution, which disqualifies holders of dual citizenship from holding elected office.
Her disqualification, after the Court of Appeal (CoA) held in favour of a petition filed by five citizens of Galle, who had made an application for a mandate in the nature of “Writ of Quo Warranto”, challenging Ms Kumarasinghe to show by what authority she claims to hold office as an MP, on the basis, she holds citizenship of both Sri Lanka and Switzerland.
The Bench comprised CoA President, Justice Vijith K. Malalgoda P.C. and Justice P. Padman Surasena. The 1st Respondent was Galle District MP Geetha Kumarasinghe, while the Controller of Immigration & Emigration M.N. Ranasinghe, UPFA Secretary, Minister Mahinda Amaraweera and Secretary General of Parliament, Dhammika Dasanayake were the other Respondents.
Under the 19th Amendment to the Constitution, passed by Parliament in 2015, “No person shall be qualified to be elected as a Member of Parliament or, to sit and vote in Parliament, if he/she is a citizen of Sri Lanka, who is also a citizen of another
country.”
The Petitioners had submitted that Ms Kumarasinghe is a holder of dual citizenship (i.e. a citizen of Sri Lanka and Switzerland) and had not divulged her dual citizenship at the time of submissions of her nomination to contest the said election. They said, she has signed her Nomination paper certifying she is not subject to any disqualification for election.
The CoA noted that, the 19th Amendment which brought in the disqualification set out in the Constitution, was certified by the Speaker of Parliament on 15-05-2015 and that, this date assumes significance because, it has deliberately brought in this fresh disqualification into the Constitution approximately two months before the date on which the Nomination paper was handed over by Ms Kumarasinghe on 09-07-2015. She was elected as an MP from the UPFA at the election held on August 17, 2015 and took oaths as an MP on September 1.
The CoA found that the current travel documents’ detailed report issued by the Dept of Immigration & Emigration, clearly states that, she is a dual citizen and that the Controller of the Immigration & Emigration Dept, in his affidavit filed before the CoA, has not denied the authenticity of this document.
According to Departmental records, Ms Kumarasinghe had applied for dual citizenship of Sri Lanka -Switzerland on 29-08-2006, and was granted a dual citizenship certificate bearing No.17096 on 19-09-2006. She has applied for a diplomatic passport on 30-10-2015, following her election as an MP and, had requested that the same be issued without an endorsement that she is a dual citizen.
Ms Kumarasinghe had submitted a letter by the Registry & Citizenship Services, Canton of Bern, indicating that Mrs Geetha Samanmali Fuhrer, nee Kumarasinghe, is released from Swiss citizenship. However, it had said the “the Registry & Citizenship Services inform the Registry office of the home municipality of the release from Swiss citizenship, as soon as it becomes absolute”. The Attorney General (AG) advised Ms Kumarasinghe to provide evidence of her release absolutely, from Swiss citizenship, but she had failed to do so, as per the AG’s advice.
The CoA held that she had also failed to respond to a letter written to her by the Controller of Immigration & Emigration to explain the real position and produce further evidence on this aspect. Further, she had also chosen to continue with that silence before the CoA as well.
“Whilst it would be inevitable that this CoA would conclude based on the above material, that Ms Kumarasinghe contested the 2015 Parliamentary election, was elected and subsequently took oaths in the office as an MP, and thereafter, sat and voted in Parliament as an MP, whilst also being a citizen of any other country, namely Switzerland,” the CoA said.
It held that Ms Kumarasinghe had failed to satisfy the CoA that she has any authority to hold office as a Member of Parliament. Therefore, the CoA is of the considered opinion that she is disqualified to be an MP in terms of Article 91 (1) (d) (xiii) of the Constitution of the Democratic Socialist Republic of Sri Lanka, and hence, not entitled to hold office.
She was also directed to pay costs of the application to the Petitioners, and the AG was directed to consider taking steps to recover the fines payable by the MP, as a debt due to the State, as has been provided under Article 100 of the Constitution.
Under Article 100, any person who, knowing or, having reasonable grounds for knowing that, he/she is disqualified to hold office of an MP, shall be liable to a penalty of Rs 500 for every day he/she sits or, votes, to be recovered as a debt due to the Republic, by an action instituted by the AG in the District Court of Colombo.
The CoA also dismissed the argument by Counsel for the MP that, it had no jurisdiction to quash the election of an MP and that, the election of an MP can only be challenged by way of an election petition.
The CoA said the contention of the Counsel for Ms Kumarasinghe that, the CoA has no jurisdiction to hear the matter in hand, lacks any legal basis and, even in the case of an election petition, it is the CoA that has jurisdiction to decide on election petitions, under the Parliamentary Elections Act.
Counsel for the MP also argued that the CoA has no jurisdiction to impeach or, question proceedings of Parliament.
With regards to this, the CoA cited the case of Dilan Perera vs Rajitha Senarathne as a good example of an instance where the CoA issued a writ of quo warranto, declaring the appointment of Senarathne in that case, as an MP void and that, he had no right to continue to hold office. “It is significant that the Petitioner in that case was also an MP. Thus, he has all the access to the proceedings in Parliament. However, it is interesting to note that, he had chosen to move the CoA and not Parliament, to have the impugned appointment declared void,” the CoA said.
The Petitioners in this case were N.W.E. Buwenaka, J.K. Amarawardhana, A.C. Gunasekera, J.K. Wijesinghe and H.L. Prasanna Deepthilala, all of Galle. J.C. Weliamuna P.C. appeared for the Petitioners, Manohara De Silva P.C. appeared for 1st Respondent Ms Kumarasinghe, while Janaka De Silva DSC, with Suranga Wimalasena, appeared for the 2nd and 4th Respondents.