By The “Sunday Times”Political Editor” :Excerpts
Retired Lieutenant Colonel Nandasena Gotabaya Rajapaksa, former Defence Secretary, handed in documents to the United States Embassy in Colombo on Wednesday (April 17) to relinquish his United States citizenship. That included the surrender of his US passport and signing an oath of renunciation.
Unlike other aspects of the relinquishment, it is accepted by the US government that the loss of citizenship occurs when the US citizen meets the Consular Officer at the Embassy by prior appointment. This is only for “immigration purposes” or is travel related. However, The Certificate of Loss of Nationality, Gotabaya Rajapaksa has sought will take time. Hereafter, he would have to utilise his Sri Lanka passport to travel overseas and will require a valid visa to enter the US.
He had his first interview at the US Embassy on March 6, just before flying to Los Angeles to attend the wedding of a friend. This interview was a requirement in terms of US laws for a Consular Officer to ensure that the renouncing of a citizenship is not being carried out by an applicant under duress. Upon his arrival in Colombo last Friday, he declared publicly that his visit was mainly to consult his lawyers. Pictures and videos of his taking part in musical events in Los Angeles with friends circulated widely in Colombo.
US Justice Department move
His US passport, which has now ceased to be valid, documentary proof of citizenship in Sri Lanka, an Expatriation Information Statement and Tax payments details among others, handed over to the US Embassy will now go to the Department of State in Washington D.C. There, the different state agencies including the Internal Revenue Service (IRS), the Federal Bureau of Investigation (FBI) and the Justice Department will examine his case and provide their own reports.
It is only thereafter that the Certificate of Loss of Nationality is issued with a final endorsement by the Secretary of State. Usually, this process is said to take two months in cases where there are no issues or other causes for delays.
This is where the crunch comes. There are two civil lawsuits against Gotabaya Rajapaksa pending in the US courts. They were both filed barely two weeks ago. Such court action has been initiated when he was still a US citizen. One is by Ahimsa Wickremetunge, daughter of slain editor (of the now defunct Sunday Leader) Lasantha Wickremetunge. She has accused Gotabaya Rajapaksa of complicity in the murder of her father in 2009. Another is a lawsuit by Roy Samathanam, now a Canadian national. He was arrested in Colombo in January 2007 and has alleged he had been detained and tortured for three years without access to lawyers at the behest of the former Defence Secretary. These cases are pending.
An important question that arises is whether the Justice Department would give clearance for a US citizen to renounce his or her citizenship when there are serious accusations in a court of law? Or, would they see these as frivolous complaints with ulterior motives to frustrate someone with agendas in mind. Would, therefore, the US Department of Justice seek a delay until the legal process is over for the issue of the Certificate of Loss of Nationality?
This is important in the light of Gotabaya Rajapaksa’s candidature for the presidential elections now due in six months.
After his Wednesday hand over of the US passport and other documents, Gotabaya Rajapaksa, at least technically, has lost his American citizenship. Notwithstanding the civil suits against him, can he hand in his nominations, when called, for the next presidential election? As is clear, pro-Opposition legal experts argue there would be no impediment. Others, however, contend he would have to adduce proof that his request for renunciation has been formally accepted by the US government. Until then, they claim, he remains a US citizen for all purposes and argue that is the US law.
Either way, there is no provision under local election laws for an election official at the nominations to reject papers of an applicant on the grounds that he or she holds foreign nationality. The National Elections Commission Chairman, Mahinda Deshapriya, was away in Indonesia. He went there for that country’s elections held on Wednesday.
What the EC checks
A senior official, who did not wish to be identified, said “At the time of handing over the nominations there are few things which are checked. One is if the candidate is from a recognised political party and whether the Secretary of that party has signed the nomination papers. If there are any other disputed issues regarding nominations, they should be challenged in courts and resolved there. Even if it is a dispute about holding dual citizenship the matter has to be taken up in courts.” For any candidate holding dual citizenship, that would be like walking on a razor or a highly risky proposition. After handing in nominations, if someone were to challenge it in courts, the party that nominated him or her would have to be without a candidate thus placing the party at a severe disadvantage.
A case in point was that of actress turned politician, Geetha Kumarasinghe who was elected at the August 2015 parliamentary elections from the Galle District. At that time, she held Swiss and Sri Lankan citizenships. Earlier this month, a five-judge bench of the Supreme Court held unanimously that she was disqualified to be elected as MP since she had dual citizenship.
The SC was in effect upholding a Court of Appeal judgment of May 3 last year that she was disqualified in the first such case involving dual citizenship. The ruling was on the grounds that it was a violation of provisions in the 19th Amendment. The Court of Appeal directed the Attorney General to take necessary steps to formulate a mechanism to recover expenses caused to the State by Geeta Kumarasinghe while she functioned as a Parliamentarian, sit and vote in Parliament in accordance with the Parliamentary Election Act.
Among proof that was adduced that she was a Swiss citizen was an affidavit from the Commissioner General of Immigration and Emigration who produced details including the citizenship registration number. This makes clear that the Commissioner General becomes privy officially when a Sri Lankan is conferred a second citizenship or when it is relinquished. Kumarasinghe appealed to the Supreme Court, and lost – her seat in Parliament.
An important requirement for those relinquishing their US citizenship is the payment of certain taxes besides a relinquishing fee of US$ 2,350 or around Rs 409,581.50. It had to be paid at the time of the interview by a Consular Officer in the Embassy. This is considered one of the highest renunciation fees in the world. In 2010 the amount stood at US$ 450. An Exit Tax is also payable thereafter when the applicant has net assets worth US$ 2 million or more. All property is subject to gift tax and all property where one holds a use right is included for purposes of the net worth test. Most importantly, the renunciation cannot be cancelled or set aside. Renouncing citizenship does not free one from US tax obligations either.
This new development, no doubt, delays the formal announcement of a presidential candidate by the SLPP and its Opposition allies for this year’s presidential election.
Though Gotabaya Rajapaksa has handed in his passport and renunciation documents, he will not receive the Certificate of Loss of Nationality from the US government until the process is completed. Both, for the SLPP and its Joint Opposition allies, this has set a poser. How long would they have to wait to resolve two important political measures?
One is for the SLPP de facto leader Mahinda Rajapaksa to formally announce the presidential candidate. The other is also to formally inform President Maithripala Sirisena that the SLPP has decided on such a candidate. Every passing week is causing them concern.
Nevertheless, Gotabaya Rajapaksa has already launched his political campaign. Eliya, the group of professionals he heads, held a meeting in Dehiwela yesterday to support him.
That Gotabaya Rajapaksa has been lined up for the candidature by the SLPP and its Opposition allies is no secret. Yet, they have to wait until Gotabaya Rajapaksa receives his Certificate of Loss of Nationality. This is why Mahinda Rajapaksa has repeatedly declared that their choice will be “a winning candidate” without mentioning names. Any mention of Gotabaya Rajapaksa would amount to nominating a US national though he now holds only a Sri Lanka passport.
SLPP leaders and their allies are due to meet in the coming weeks to assess the current situation and examine whether an alternative plan ‘B’ would become necessary. This is if there are fears that there would be long delays and is also prompted by the necessity that a decision would have to be made well ahead of the launch of a campaign.
The National New Year season is now behind. The upcoming May Day will see political parties displaying their strength and flexing their political muscle — a precursor to the presidential election that will follow. The suspense among them is growing. There is only 24 more weeks to go.