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Dual citizenship issue in Sri Lanka

9 May 2017 12:05 am - 0     - {{hitsCtrl.values.hits}}

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Dual Nationality states that a person is a citizen of more than one country, under the laws of those states. There is no international convention which determines nationality or a citizen’s status by national laws. 


The issue could be traced back to 1867 when “Fenin Rising” an Irish – American was charged with treason in Ireland. The British recognized perpetual allegations in citizenship issues and American Congress passed the Expatriation Act in 1868, allowing Americans to freely denounce US citizenship. The British followed suit by formulating the British Nationality Law in 1948, removing restrictions on dual citizenship. Sri Lanka follows the British principles and models including Parliamentary procedures and allowed dual citizenship to qualified Sri Lankans. Dual citizenship is applicable to a person whose Sri Lankan citizenship has ceased under S 19/20/21 of the Citizenship Act. This is a privilege extended to a few countries such as Sri Lanka, Switzerland, Israel, Australia, Barbados, Bangladesh, Canada, Cyprus, USA, South Korea, South Africa, Greece, France, Finland, Germany, Iraqi, Ireland, Hungary, Iceland, Sweden, Slovenia,Syria,Serbia, Armenia, Lebanon, Malta, Spain, Tango, Philippines, Sierra Leone, Pakistan, Portugal and Turkey.There are 53 countries with restrictions including India and Japan. Singapore and Nepal are confined to their national laws on the decision on this national issue. This issue has raised new political and legal issues and complications in view of many other members of the Parliament who are alleged to hold dual citizenship, and if so their eligibility to continue to be members of the Parliament. USA, Britain and Israel are pioneers of the concept and the applicability of dual citizenship. In Israel there is a mechanism to obtain citizenship – dual- (Jus Sanguinis) on condition to abide by the requirement to military services, with the right to return (conditional), though it is said that every Israeli worldwide has the right to be a citizen provided their Jewishness is proven. UK and USA almost follow the same pattern.  


Dual Citizenship is a privilege and not a right

Dual nationality is not a right but a privilege for a citizen to enjoy the rights and privileges of one or more countries to own properties, invest and conduct businesses and enjoy restricted privileges with the right to denounce or to be taken away by the state at any given stage. In Sri Lanka Dual nationality holders could hold public office and be elected as Members of the Parliament until the introduction of the 19th amendment to the Constitution of Sri Lanka which expressly prohibits a citizen of Sri Lanka who is also a citizen of another country from contesting elections. Today this issue has come to light with the decision of the Court of Appeal on the election of Geetha Kumarasinghe to the Parliament with the allegation that the office was held whilst she was still a citizen of Switzerland. The 19th amendment came into effect on May 15, 2015. Nominations for the Parliamentary elections closed on July 13, 2015; as such it was theoretically possible for election department officials to have rejected nomination papers with a candidate rendered ineligible on account of holding dual citizenship. The election commissioner apparently had no provision to reject the entire nomination list. Now that the MP has appealed against the order, she could continue to be a Member of Parliament until the determination of the appeal. Holding public office by a non-national or dual citizenship holder is a grey area to be resolved with the maize of citizenship issues and anticipated constitutional changes on the table. Appointments of Arjuna Mahandran (Singaporean National) as the Governor of Central Bank and Gotabaya Rajapaksa ( Dual Citizenship holder) as the Defence Secretary may be topics of discussion and controversies that need to be resolved. This may be an important to constitution making and the new dual citizen holders will have an impact on the economy, society and legal system.  


Legal Basis and issues

Legal basis and issues are still complicated. Like the 18th amendment, 19th amendment is also a hurriedly drafted and passed legislation on various political strategies aiming at individuals rather than political ideologies or polices. It is no secret that the intention of the hurriedly passed legislation is to block Mahinda Rajapaksa and Gotabaya Rajapaksa - the possible contenders in future power struggles- reminds us Mrs. Bandaranaika and her rival J.R. Jayawardena. These are political games manipulating the legal structure for the advantage of those in power. In the present controversy there is also a question on the jurisdiction as to whether the proper method should have been an election petition to the Supreme Court rather than the writ of “Quo Warranto”, pleaded by the petitioners in the Court of Appeal, and the procedure adopted which will be canvassed heavily in the Supreme Court in the near future. This will open a floodgate of cases of many others with dual citizenship elected before the 19th amendment. The Supreme Court is the final appellate court with enormous powers inherent as well as from the legislature and the decisions taken, considering the supremacy of the Parliament, the intention of the legislature, power of the mandate of the people and the supremacy of the Parliament and its inherent powers.  


Threat of contempt and constitutionality

Now there is another development and threat to file further documents by the petitioners for contempt of court for citizens. The court/judgment and not complying with the order forthwith. Contempt of court is disobeying, offending and disrespecting the court order undermining the dignity and authority of the court and the grounds of the offence will depend on the facts, circumstances and allegations. The Article is clear in that ‘No person shall be elected as a member of Parliament or to sit or vote in Parliament if Article 92 (b), 20 (4) 91 (1 (d) X111 is contravened, subject to appeal and valid explanation to the controller of immigration, and the Speaker of the Parliament.’ The misconception that the defendant or/and accused will have no right to comment is a false notion based on hearsay, as there is ample opportunity to criticize the judgment/determination of the court/tribunal with 
the parameter.  


At a crossroad today

We are in a maze of controversies and a crossroad in the citizenship issue in the absence of a proper nationality laws as in the UK. With the influx of uncontrolled offers of dual citizens, we must expect consequences in the near future. In the UK and US, naturalisation is necessary to acquire citizenship and to convert to dual later. There could be an imbalance in the economy if the floodgate is opened with no control.  Israeli citizens in the USA are required to take allegiance on oath as patriotic Americans. The Citizenship Act No. 18 of 1948 is outdated and inadequate with the modern trends and challenges and must be redrafted to be compatible with national standards/aspirations and international norms. When all other states are practicing protectionism it is time for us to adopt new measures through the proposed constitution in making.  

 

"Dual nationality is not a right but a privilege for a citizen to enjoy the rights and privileges of one or more countries to own properties, invest and conduct businesses and enjoy restricted privileges with the right to denounce or to be taken away by the state at any given stage"

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