By S.S. Selvanayagam
Resolving a question relating to a provision of the historic 19th Amendment to the Constitution, the country’s apex court yesterday upheld a judgment by the Court of Appeal that Galle District UPFA MP Geetha Kumarasinghe was not entitled to hold office as a Member of Parliament since she had contested the August 2015 election while holding dual citizenship.
The Court also directed the Registrar to send the judgment to the Secretary General of Parliament immediately.
The judgment of the divisional bench of five judges, comprising Chief Justice Priyasath Dep and Justices B.P. Aluvihara, Sisira J. De Abrew, Anil Gooneratne and Nalin Perera, was read in open court by Justice De Abrew.
The Supreme Court Judgment said Kumarasinghe was disqualified to be elected as a Member of Parliament from 17 August 2015 – the day of the election – and on 1 September 2017 when she took oaths as a Parliamentarian.
Dismissing Kumarasinghe’s appeal, the Supreme Court bench ruled that the Court of Appeal was correct in its 3 May 2017 ruling to issue a writ quo warranto declaring that the Galle District MP was disqualified from being a Member of Parliament.
In its judgment the Supreme Court said Kumarasinghe could not be considered a Member of Parliament, that her office as a Member of Parliament was a nullity and that writ of quo warranto was available to oust her from the office of a Member of Parliament.
Under the Sri Lankan Constitution, as amended by the 19th Amendment enacted in April 2015, no person can be elected to Parliament if they hold dual citizenship.
In their appeal to the Supreme Court, Kumarasinghe’s counsel argued that the only way to remove a Member of Parliament was by filing an election petition. The lawyers for the UPFA politician said Article 140 of the Constitution relating to the Court of Appeal’s authority to issue writs could not be invoked to remove a parliamentarian from office. However, the Supreme Court judgement rejected this argument, holding that Article 140 was a constitutional provision and the Constitution was the supreme law of the country.
President’s Counsel Romesh de Silva with Sugath Caldera and Niran Anketell appeared for Kumarasinghe.
J.C. Weliamuna appeared for the petitioner-respondents W.W.E. Buweneka, J.K. Amarawardhana, A.C. Gunasekera, J.K. Wijesinghe and Prasanna Deepthilal.
Santhaka Jayasundera appeared for respondent UPFA Secretary Prof. Vishwa Warnapala. Deputy Solicitor General Nerin Pulle with Senior State Counsel Suren Gnanaraj appeared for respondents the Controller of Immigration and Emigration and the Attorney General.
Suren Fernando appeared for the Intervenient Petitioner Gamage Piyasena, who is next in line on the UPFA candidate list.
The Supreme Court on 15 May granted Special Leave to Appeal with the application filed by Galle District UPFA Parliamentarian Kumarasinghe seeking to set aside the judgment of the Court of Appeal which disqualified her as a Member of Parliament on her impugned dual citizenship.
In the majority decision of the bench comprising Justices Eva Wanasundera, Upaly Abeyrathne and Anil Gooneratne, the Court extended the Interim Order staying till the final determination the operation of the Court of Appeal judgment.
Galle District UPFA Parliamentarian Kumarasinghe filed her appeal in the Supreme Court against the judgment of the Court of Appeal which annulled her parliamentary membership over her dual citizenship.
The Court of Appeal on 5 May ruled that she was not entitled to hold the post of Parliamentarian as she had contested the election while being a dual citizen.
Justice Preethi Padman Surasena, with Justice Vijith Malalgoda (CA President) also agreeing, directed the State to recover the cost from her as the debt to the State for the each day she sat in the Parliament knowing that she was a dual citizen and being disqualified to be a Member of Parliament.
The Attorney General had informed the Court of Appeal that Kumarasinghe was still a citizen of Switzerland and according to the 19th Amendment to the Constitution, a person who has dual citizenship cannot be a Member of Parliament.
The Appeal Court held that Galle District UPFA MP Kumarasinghe could no longer function as a Member of Parliament as she had contested the general election while holding dual citizenship.
Five voters of the Galle District had filed the writ petition in the Court of Appeal requesting court to declare Kumarasinghe ineligible to remain a Parliamentarian while holding dual citizenship.
Court held that under the 19th Amendment to the Constitution, a dual citizen was not eligible to contest for Parliamentary membership and therefore Kumarasinghe could no longer function as a Parliamentarian.
The petitioners in their writ application challenged her appointment and election as a Member of Parliament on her dual citizenship.
The petitioners had challenged the election of Kumarasinghe to the office of Member of Parliament, contending that she is not de jure (legally) entitled to such appointment and election and to hold the said office without authority.
The petitioners had stated that Kumarasinghe is a holder of dual citizenship, namely Sri Lanka and Switzerland, and she had contested the 2015 Parliamentary election without divulging her dual citizenship at the time of submitting her nomination.
They had claimed she by virtue of the Constitution is not qualified to be elected as a Member of Parliament and charged that she is thus a usurper of the authority of a Member of Parliament.
She had been declared as a Member of Parliament representing UPFA from Galle District, they had stated.
They had sought the Court of Appeal to issue a prerogative writ order requiring her to show by what authority she claims to hold office as a Member of Parliament and an another order declaring that she was disqualified to be a Member of Parliament and thus not entitled to hold office as Member of Parliament.
Petitioner Gamage Piyasena intervened in the Appeal filed by Kumarasinghe.
He filed intervenient papers crying foul at her for the failure to name him as a respondent whereas he should have been named to the appeal application.
He alleged that she had been guilty of fraudulently suppressing material facts from the Court. He was among others seeking Court to dismiss her appeal in limine and to vacate the Interim Order granted by the Supreme Court staying the judgment of the Court of Appeal.