By S.S. Selvanayagam
A three-judge bench of the Court of Appeal (CA) will commence hearings on a writ challenging the Sri Lankan citizenship of former Defence Secretary Gotabaya Rajapaksa running for president, just three days ahead of the nominations deadline for the 16 November poll.
A Divisional Bench of the Court of Appeal headed by its President Justice Yasantha Kodagoda will hear the case tomorrow and on Thursday. Court has also put all lawyers involved in the potentially consequential case on notice to be available for hearings on a third day on Friday.
Between 9 a.m. and 12 noon on 7 October, candidates contesting the Presidential Elections must file nomination papers at the Elections Commission in order to be eligible to contest.
The petition filed by civil society activists Gamini Viyangoda and Professor Chandraguptha Thenuwara argues that the SLPP presidential hopeful failed to obtain his dual citizenship legally in 2005 when he was a US citizen. The citizenship certificate conferred upon Rajapaksa is null and void, the petition argues further.
The petitioners submit that a person who is not a citizen of Sri Lanka is not qualified to be elected to the office of the president.
In its prayer for interim relief, the petition seeks to prevent Gotabaya Rajapaksa and his agents from claiming he is a citizen of Sri Lanka and restrain Government authorities cited in the petition from acting on the basis that he holds Sri Lankan citizenship until the case is heard and determined. The petitioners also seek interim relief to suspend the operation of his purported dual citizenship certificate.
If the case succeeds, it could disqualify Rajapaksa from contesting in the November Presidential Election.
When the case came up yesterday, the Bench comprising CA President Yasantha Kodagoda and Justice Arjuna Obeysekera fixed the matter for support and for considering interim relief requested in the petition.
After considering a motion filed by Petitioner Counsel Attorney-at-Law Suren Fernando, Justice Kodagoda appointed a Divisional Bench comprising himself, Justice Arjuna Obeysekera and Justice Mahinda Samayawardane. Making submissions on the motion for a three-judge bench, Counsel for Gotabaya Rajapaksa Romesh De Silva PC urged the Court not to deviate from usual procedure to hear the case, but hastened to add that his legal team was prepared to appear before any Bench.
The Court of Appeal President repeatedly asked counsel for Rajapaksa, who is the fifth respondent in the case, if they had objections to the judges hearing the matter. It was recorded that neither Romesh De Silva PC, M. Ali Sabry PC nor Gamini Marapana PC who appeared for former President Mahinda Rajapaksa, objected to Justices Kodagoda and Obeysekera hearing the writ application.
However, the Court of Appeal President reiterated during the afternoon session, that the Court was taking “extraordinary measures” to ensure all the lawyers involved in the case had the fullest confidence in the judges hearing the case.
“We are acutely conscious of the political sensitivity of this matter,” Justice Kodagoda told counsel. At any point between yesterday and 9 a.m. on Wednesday, before the case is taken up for hearing, if any of the lawyers had objections about the Constitution of the Divisional Bench or any of the judges sitting, they were instructed to call over at the Chambers of the President of the Court of Appeal, Justice Kodagoda emphasised.
The matter was taken up for a second time at 2.30 p.m. yesterday, for Court to call for documents from public authorities to assist counsel with their submissions.
Public authorities were directed to submit documents requested by lawyers for the fifth respondent, Gotabaya Rajapaksa, the sixth respondent, Mahinda Rajapaksa and the petitioners today, or at latest before hearings begin tomorrow.
Senior Deputy Solicitor General Nerin Pulle appearing for the IGP and other Police officers cited as respondents in the petition, undertook to inform State authorities that the Court of Appeal had called for the documents.
Rajapaksa became a US citizen on 31 January 2003. According to the dual citizenship certificate the former Defence Secretary has submitted to Government authorities in the process of obtaining a new NIC in October 2016, he purportedly resumed citizenship in Sri Lanka on 21 November 2005, two days after his brother Mahinda Rajapaksa was sworn in as President.
Following an article first published in Daily FT on 11 August, pointing to questions about Gotabaya Rajapaksa’s passports, NIC and dual citizenship status, the two activists who filed the Court of Appeal writ complained to the IGP, demanding an investigation into the reports.
Last week, the Criminal Investigation Department (CID) which was ordered to conduct the investigation reported to the Colombo Chief Magistrate that neither the Department of Immigration nor the Ministry of Defence could locate Gotabaya Rajapaksa’s dual citizenship file.
The two authorities have informed the CID officially that the documents were not in their custody. Immigration officials told the CID that the dual citizenship files during Rajapaksa’s tenure were in the custody of the Ministry of Defence, according to the B report filed in Court last Thursday. According to the CID B report, the Ministry of Defence has denied these files being in their custody.
The 19th Amendment to the Constitution enacted in April 2015 expressly bars dual citizens from contesting for elected office in Sri Lanka. In a bid to qualify, the former Defence Secretary claimed he had renounced his US citizenship on 17 April. His certificate of loss of US citizenship was also submitted as part of his application for a new Sri Lankan passport on 7 May.
Compounding legal hurdles for the SLPP candidate, the Supreme Court will take up Rajapaksa’s appeal today, seeking to prevent the D.A. Rajapaksa museum trial from proceeding in the Permanent High Court at Bar. The former Defence Secretary is the first accused in the D.A. Rajapaksa case, accused of embezzling Rs. 33 million in State funds to build a monument for his deceased parents in Medamulana. Trial is set to begin on 15 October.
The Court of Appeal writ application cited Controller General of Immigration and Emigration, Commissioner General of Registration of Persons, Minister of Internal and Home Affairs, Ministry Secretary, Gotabaya Rajapaksa, Mahinda Rajapaksa., Acting IGP C.D. Wickramaratne, Senior DIG Ravi Seneviratne, CID Director G.S. Abeysekera and CID Special Branch OIC Lalith Dissanayake as Respondents.
Attorney-at-law Suren Fernando appeared for the petitioners in the writ application, while Romesh de Silva PC with Ali Sabry PC appeared for Gotabaya Rajapaksa and Gamini Marapana PC appeared for Mahinda Rajapaksa. Senior Deputy Solicitor General Nerin Pulle appeared for the IGP and CID officials cited as respondents in the writ application.