- What do the legal experts say?
A lot of hue and cry has been made at Parliament over the past couple of months with the Court of Appeal issuing a Writ of Quo Warranto disqualifying the UPFA Member of Parliament, Geetha Kumarasinghe holding office as an MP on May 3, 2017 under the claim that Ms. Kumarasinghe was holding dual citizenship at the time of seeking nomination to enter Parliament and failed to renounce from the dual citizen status before contesting at the elections from the Galle district in August 2015 as opposed to the 19th Amendment enacted by President Maithripala Sirisena after entering office in January 2015. But on May 15, 2017, there has been an extended interim relief granted in favour of appellant Geetha Kumarasinghe by the Supreme Court.
The decision made by court is currently pending and the appeal is to be argued in Supreme Court on September 25, 2017. No matter what would be said and done, this incident would have a butterfly effect on Parliament for sure.
Decision Pending; Trial on Time Out
“This is an instance which challenges only Geetha Kumarasinghe occupying the position of MP under dual citizenship status. If she faces disqualification, the next person in line in the list of names would assume the position and an election would not be held in any case.”- Srinath Perera
To get further comprehension on the backgrounds of the pending matter in hand, the Daily Mirror spoke to reputed Constitutional lawyer and politician Srinath Perera PC.
Starting off from square one, Srinath Perera was asked to specify on the grounds on which the 19th Amendment suggested Geetha Kumarasinghe’s disqualification. He said that certain reasons for disqualification of a candidate at the elections were laid down under Article 91 of the Constitution but was amended under President Sirisena where it was stated that dual citizenship was also another reason for disqualification. “Under article 91 and sub paragraph (1) (d) (xiii) of the Constitution, persons who are dual citizens are disqualified from being elected as Members of Parliament or the President of the Republic. The Constitution stipulates - 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 any other country. So Ms. Kumarasinghe is challenged under this amendment as she is thought to have been holding dual citizenship while bearing a post in Parliament.”
Nobody knew about it. Those who must have known about it were not interested. Somebody who became aware of it must have been interested and filed papers against it. That is when the investigations and court cases started
“This amendment came into operation on May 15, 2015 and she contested at the elections on August 17, 2015. This amendment came into operation prior to the election.” He further stated.
Geetha took oath on September 1, 2015, so the revelation of her holding a dual citizenship after two years is a long time. Why hadn’t anyone brought this up before? What had provoked the revelation this year? Won’t the time issue provide a legal barrier to the case? “Nobody knew about it. Those who must have known about it were not interested. Somebody who became aware of it must have been interested and filed papers against it. That is when the investigations and court cases started.”
Considering the possibility of her disqualification, and if she loses her post, there will be a vacant seat in Parliament. Then there would be a big question mark left in the eyes of many. Speculations, perhaps for another election may sprout up. “This is an instance which challenges only Ms. Kumarasinghe occupying the position of MP under dual citizenship status. If she faces disqualification, the next person in line in the list of names would assume the position. An election would not be held in any case. Parliamentary elections are held district wise. There would be a certain number of members that could be chosen from each district. Now in Colombo, the number stands at 21.What is normally done is names of another three individuals in addition to the 21 would be added to a list. Each party has to submit a list of 24 names i.e. Colombo district. These are the people who are contesting at the elections. The Elections Commissioner would then give each contestant a number. When the final counting of votes are completed, the number of contestants would be allotted from that particular party. The contestant who had obtained the highest number of votes would be elected.
The fact that despite her disqualification, it does not affect the others whose names appear in the list. There are certain specific grounds under which the list of names could be rejected
In the list of names given, there would also be names of a few other contestants who had not polled sufficient votes would be considered disqualified and would lose the chance of entering Parliament. The name of the other contestant who is listed next who had just missed a seat in Parliament, would be given the seat instead.”
Referring to the possibility that Ms. Kumarasinghe is found guilty, won’t the list of names, that includes her name be challenged, and hence, an election would be called for? “The fact that despite her disqualification, it does not affect the others whose names appear in the list. There are certain specific grounds under which the list of names could be rejected. Once it is accepted, nobody can challenge. The court has issued a writ of quo warranto, which will only subject Ms. Kumarasinghe to disqualification given that she is proved guilty as charged. That court’s decision will not in any event affect the rights of others who have been elected. Because the simple principle here is that Geetha’s election has only been challenged in particular. When the names are entered in a list, they add the names of three persons - more than the number that could be elected. All the chosen candidates are not elected from the same party. There have been a number of others who have contested in the list available. So, if Geetha faces disqualification, the next person in line with the highest number of votes will be given the post,” said Srinath Perera when he was queried about the list.
This is an instance which challenges only Geetha Kumarasinghe occupying the position of MP under dual citizenship status. If she faces disqualification, the next person in line in the list of names would assume the position and an election would not be held in any case
There are various notions that other MPs who hold dual citizenships came into the existence with this whole event. If there is any truth to this tale, the list may contain names of parliamentarians with dual citizenships. We asked Srinath Perera PC what would happen in such a circumstance, he said “Like I mentioned previously, this is an instance which would disqualify the challenged individual only. In my understanding, to be fair, if another candidate in the list who also holds dual citizenship, he/she should be rejected and eliminated from the list as well.”
Once an MP is disqualified under a particular accusation, and in this case due to dual citizen status, one does naturally bear in mind the question whether the accused stands a chance to compete in the elections as a candidate again. “If a person is disqualified as an MP, namely referring to Geetha Kumarasinghe in this case, she could contest in the next elections provided that she had annulled her dual citizenship before the next nomination date, and hence, she would stand a chance to be nominated again.”
Constitutional Uncertainties Explained
Whether or not the Supreme Court will disqualify her, it has to be a question on facts; not a question of law. - Dr. Nihal Jayawickrama
With Geetha Kumarasinghe’s dual citizenship issue, cropped up many uncertainties on the provisions in the constitution with regard to a situation such as this. Dr. Nihal Jayawickrama, a Constitutional expert and the former Permanent Secretary to the Ministry of Justice, explained that according to the law there would not be a new election for the Galle District and if disqualified the candidate on the list with the next highest number of votes would be elected.
Speaking of the disqualification of an MP, Dr. Jayawickrama said, “The Constitution shows us who is qualified and who is not to seek elections, and among them is a category of people who are disqualified from seeking elections in Parliament or to seek office for Presidency. And this category includes citizens of Sri Lanka who are also a citizen of another country. So such a person is disqualified from being elected from sitting and voting in the House. And if that person has sat in Parliament, then there’s a penalty for Rs. 500 a day for every day that he/ she sat in Parliament. This is clearly set out in the Constitution”
Whether or not the Supreme Court will disqualify her, it has to be a question on facts; not a question of law
He further cited that there are cases when an election could be deemed void and a new election would be conducted, however, it was not done in the present case. “According to Section 92 of the Parliamentary Elections Act of 1981, there are two ways in which elections can be set aside. You can file an election petition after the election is over. It says that the election in respect to any electoral district can be declared to be void on an election petition filed under grounds that one candidate was disqualified at the time of his or her election. Then you have to hold a fresh election for that particular district. Otherwise the district goes unrepresented. However this did not happen against Kumarasinghe.”
He further added that, “There’s another provision in that law, which is Section 115 of the Parliamentary Elections Act which states, “The death, or withdrawal, or disqualification under any written law for election or for sitting and voting as a Member, whether before or after the election of the Member, of any person or persons nominated by a recognized political party or independent group for election at that election shall not invalidate or in any way affect the nomination paper of that party or group, and accordingly the candidature or election of any other person nominated by the party or group on that nomination paper shall not be invalidated by reason only of the fact of the death, withdrawal or disqualification of such person or persons” which means to suggest that the disqualification of Kumarasinghe will not invalidate the list that was submitted for that district by that party. And if one member seizes to hold office then the constitution says that the person who has got the next highest number of votes will be declared elected.”
Dr. Jayawickrama further voiced out an amendment he feels needs to be made in the constitution or the Parliamentary Elections Act, “Since the number of votes a party gets determines the number of seats they receive, a problem which is not provided for by the constitution, which may need to be looked at again, is that people vote for a list, and when you find a person who has attracted a large number of votes and is disqualified in the list, then those votes are taken into account in deciding how many seats that party is entitled to, they get bonus seats as well, depending on whether that party has got more than any other party. The point is several months or years later you find that that particular person was disqualified from seeking election and his/her name should never have been on the list then what happens to the fact that people who actually voted because of that person being on that list? Now there is nothing in the law that anticipates that kind of situation. So I think it is something that really requires some provision, because after all, the allocation of seats and the allocation of bonus seats and the national seats all depends on the number of votes that a party gets from the electoral districts throughout the island. Is it fair? Should that be the case that the list is not rejected and the whole district is not called upon to hold another election in a situation of this nature? And the strange thing is, if you file an election petition on the grounds that one of the candidates was disqualified, if that succeeds, then of course the entire district faces a fresh poll. It could have been done but they have chosen another option, which is to come much later. I suppose one consequence of coming late is what would happen to the list.”
On the basis that she is or is not a dual citizen, the courts need to be satisfied with the evidence and take a decision
“But as the law now stands the fact that somebody held to be disqualified at the time of the election, will not invalidate the list that is what the parliamentary elections act says. So it doesn’t have any other consequences.” he added.
Speaking of the current situation Dr. Jayawickrama said, “An election petition was not filed in this case so we are now left with the Quo Warranto application which is perfectly legitimate because it is intended to challenge a person who is occupying an office which he/she is not entitled to. So that remedy is also available that is also what they have used.”
“So then the Court of Appeal, on the facts has found that that person was not qualified to stand for election or to be elected to sit in Parliament. Then they declare that person was disqualified. The consequences of it, one has to then refer to the Constitution which says that the next person in that list should be declared elected. The Parliamentary elections Act says that the fact that somebody was disqualified before or after the election will not affect the list submitted by the party.” he said
Speaking of his analysis on the situation Dr. Jayawickrama stated that, “I think that if the supreme Court affirms the Court Of Appeal’s judgment, then Geetha Kumarasinghe would stand disqualified and the secretary of Parliament would request the Commissioner of Elections to indicate who the person is who polled the next highest number of votes, could declared elected. I don’t think anything else would follow from that. And whether or not the Supreme Court will disqualify her, it has to be a question of facts; not a question of law. That is on the basis that she is or is not a dual citizen, the courts need to be satisfied with the evidence and take a decision.”