Dysfunctional Executive and a compromised Judiciary

Last week a three-judge bench of the Supreme Court in a unanimous verdict unseated State Minister Diana Gamage noting that she was disqualified to be a Parliamentarian as she has no Sri Lankan citizenship. While this verdict is most welcome, it also demands answers regarding due process, the criminal justice system and accountability of the Superior Courts.

The fact that a non-citizen had been holding a seat in Parliament for four years, of a five-year parliamentary term is a pathetic indictment of the State, its administration and justice system. Making matters worse, the eventual ouster of Gamage was not a result of proceedings initiated by a State agency but due to the actions of an individual citizen who petitioned the courts. To date the Attorney General, the Controller General of Immigration and Emigration, the Inspector General of Police or any other State agency is to act against Gamage who has violated numerous laws.

Further concerning is the conduct of the Court of Appeal (CoA) that had dismissed this case previously. On 31 October 2023, Appeals Court President Bandula Karunarathna and K. Swarnadipathi delivered the majority judgment dismissing the initial petition filed to unseat Gamage. Justice Ahsan Marikkar dissented. The CoA while dismissing the case noted that the writ petition seeking to disqualify Gamage from serving as an MP “remain in dispute,” and she has not been arrested to date or named as a suspect in the case regarding her citizenship issue.

Five years ago, the CoA delivered an even more consequential judgement concerning another case of citizenship. In October 2019, a month before the last presidential election, it dismissed a legal challenge to then candidate Gotabaya Rajapaksa’s Sri Lankan citizenship, removing a major barrier he faced in contesting. The three-judge panel presided by Yasantha Kodagoda unanimously dismissed the case that challenged the validity of Rajapaksa’s Sri Lankan citizenship, which he obtained in 2005. During this hearing it was presented that there were no records at the Department of Immigration of Gotabaya Rajapaksa obtaining his Sri Lankan citizenship in 2005. His supposed citizenship document had been signed by his brother Mahinda Rajapaksa, two days after the latter’s election as President. Gotabaya had been “granted” citizenship by his brother in his capacity as the minister in charge of immigration at a time when the Cabinet of Ministers had not been sworn in opening a Pandora’s Box of constitutional jurisprudence as to whether all powers of the executive lie with the President in the absence of a Cabinet. According to the Court of Appeal it does, and any future elected president can decide not to swear in a cabinet of ministers and govern the country with all executive powers entrusted to the office of President.

On this occasion the case never made it to the Supreme Court and Gotabaya Rajapaksa went on to become arguably the first non-Sri Lankan to be elected to the highest office in the country. Within two months of his election, Rajapaksa appointed President of the CoA, Yasantha Kodagoda as a justice of the Supreme Court.

In the wake of the Diana Gamage verdict many questions remain unanswered. What actions will the Attorney General, IGP and the Controller General of Immigration take in what is now clearly a criminal matter. More importantly, why haven’t they acted to date? Should there not be scrutiny of the Court of Appeal for its role in failing to deliver justice? Going by its recent track record, such scrutiny of the second highest court is not only desirable, it is an imperative for the wellbeing of the republic.