The unseating of an MP and the chance roll of the judicial dice

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Leaving apart the typically hysterical political brouhaha about the unseating of Diana Gamage, former (and largely unlamented) Member of Sri Lanka’s Parliament, what is greatly interesting about this otherwise distasteful saga is the different approaches taken by the Supreme Court and a majority decision of the Court of Appeal with profound implications on the roll of the judicial dice in each instance.

That vexatious issue citizenship

This concerned a parliamentarian whose seat was challenged by a social activist on the basis that she was the holder of a British passport thus ceasing to be a citizen of Sri Lanka and by virtue of Article 91 read with Article 89 of the Constitution, was disqualified from holding office as a Member of Parliament. Significantly, the legal remedy sought was the rarely used Writ of Quo Warranto. This required Gamage to show ‘by what authority she claims to hold office and continue to function as a Member of Parliament.’

In other words, she could not simply sit back, fold her hands and pretend blissful ignorance. The factual position by which the challenge rose or fell depended on two questions. First, did Gamage cease to become a citizen of Sri Lanka either voluntarily or through the operation of law? Secondly, did Gamage resume the status of a citizen according to law? These matters had to be determined by way of documents placed before court. And the admission or rejection of the documents on which that determination depended, became highly contentious.

Materially different judicial approaches were reflected, resulting in different conclusions of each Court. While the (majority) decision of the Court of Appeal dismissed the challenge to Gamage’s parliamentary seat, the Supreme Court unseated her. In fact, the Supreme Court delivered a somewhat stinging admonition to the Court of Appeal in categorizing as ‘threadbare,’ its finding that, statements made by the Deputy Controller of the Department of Immigration and Emigration to the Criminal Investigation Department (CID) did not amount to ‘admissible evidence.’

A litany of illegal acts

These statements, recorded during a criminal investigation under Section 109 (5) of the Code of Criminal Procedure, were to the effect that Gamage was illegally residing in the country without a valid visa. The Supreme Court’s observation was that, ‘there was nothing in the Code or in the Evidence Ordinance which prohibits the use of the original or certified copies of the complete statements made to the police in the course of any criminal proceeding, from being used by a court in civil proceedings.’

It was concluded that there was no bar to using those statements in writ proceedings under Article 140 of the Constitution. The Deputy Controller who was in charge of the computer division in his Department, had stated that Gamage had entered Sri Lanka using a British passport in 2004 and had thereafter used that passport frequently to travel back and forth until 2014. She had then obtained a Sri Lankan passport by submitting a national identity card, using that passport at the same time. Later (in 2018) she was issued a diplomatic passport.

According to her own statements to the Magistrate’s Court, Gamage admitted to using her British passports, admitted that she was never a dual citizen but claimed that she had got her British citizenship cancelled after returning to Sri Lanka in 2014. It is in this context that the Court refers to a ‘fascinating fact’, namely that the Controller of Immigration and Emigration had stated, in his affidavit to court no less, that ‘he is not aware’ where the holder of the particular British passport in issue was, in fact, Gamage.

Perverting the course of the law

That fact is, of course, not so much ‘fascinating’ as outrageously reflective of how senior public officers pervert the course of the law. In any other country, such an observation by the apex court would have ominous repercussions. Not so in Sri Lanka where the President in tandem with the Constitutional Council (abstentions notwithstanding) thought fit to nominate/appoint a police officer directly tainted in the act of causing torture, as an Inspector General of Police (IGP). But to return to the case in hand, the Controller’s ‘lack of awareness’ in that regard is contradicted by Gamage herself as well as by the Deputy Controller.

It is in this background that the Supreme Court finds that the majority of the Court of Appeal erred in law in dismissing the writ application on the basis that an original or duly certified copy of the information page of Gamage’s British passport had not been tendered to court even though the complete case record of the Magistrate’s Court had been produced along with the entry and exit details of the British passport in issue. In regard to Gamage’s contention that the writ jurisdiction of the Court of Appeal cannot be exercised when facts are ‘in dispute’, the Supreme Court’s correct assessment was that these facts must be ‘material’ to the issue.

There was no doubt that Gamage was a citizen by descent, that sometime after 1981 she had obtained a British passport and that, on the facts and the law before Court, she had then ceased to become a citizen of Sri Lanka. That burden of proof had already been discharged by her challenger.  Consequently, on the next question of whether she had resumed citizenship according to law, the burden of proving that lay on Gamage herself as she had ‘special knowledge.’

Setting aside the appeal court decision

The Court observes that, there could not have been any ‘difficulty’ for Gamage to have obtained the relevant information using the Right to Information Act or in any way as she was a parliamentarian and the State Minister for Tourism. But she has merely denied that she is a British citizen and taken refuge under the ‘right to remain silent’ and the ‘presumption of innocence’ (relevant in criminal proceedings) rather than make any assertion of ‘regaining the status of a citizen by due process’ as required in the writ proceedings.

She had therefore failed to discharge the burden of proof under Section 106 of the Evidence Ordinance. Unsurprisingly the Court also rejected her argument that issuing the writ will be futile given Gamage held office under a gazette issued by the Election Commission which had not been challenged. That rejection was on the basis that when the Court issues the writ of Quo Warranto that Gamage is disqualified to hold office as a Member of Parliament, she ipso facto ceases to be such and the relevant citation in the gazette also ceases to be operative.

Moreover, the Court observes that major portions of the majority appeal court decision consist of verbatim reproduction or slight variations of contents of the petition and written submissions of both parties. The only ‘original’ paragraphs amount to just five; these too do not correctly set out the principles that govern the issue of a Writ of Quo Warranto. In a cutting aside meanwhile, the judges agree that ‘strangely and startlingly’ the criminal investigation as to Gamage’s alleged violation of the Immigrants and Emigrants Act had remained in limbo since 2021.

That said, apparently Gamage has now claimed that she will go to an ‘international court’ against the decision of the Supreme Court unseating her. There is something distinctly funny about this claim. Perhaps in a noteworthy example of ‘poetic justice’ she can petition the United Nations Human Rights Council for relief.

That will only confirm our dubious record as a ‘nutcase’ nation in the eyes of the world.