The Truth of the Lie
By Dr. C. G. Ilangakoon
“Basil is the problem” came the prompt reply from an erstwhile senior opposition Minister and close friend, to the question I posed. The Minister dwells at Rosemead Place in Colombo 7, a couple of houses away from my Maha Gedara (ancestral Home) hence, the close friendship. The question asked in a friendly confab was: “After such a humiliating defeat in the last Presidential and General Elections, the Party Leader himself losing his own seat and the party being fractured to shreds, will you ever be able to re-capture power in Sri Lanka?”
In respect of citizenship plurality, there was neither a political dialogue in Sri Lanka nor any constitutional compulsion nor force majeure circumstances, which commanded a negative or a positive constitutionalisation of dual nationality. Even during the height of LTTE terrorism, with the agony of so much blood and oceans of tears shed, of lamentation and crushing pain, with the destruction of so much wealth and death, no UNP or JVP so-called “patriot” had any idea of nationality plurality.
Their eyes only opened wide in shock, subsequent to the news of Gotabaya Rajapaksa’s advent to politics and the powerful consequence of forming the SLPP by the political master mind, Basil Rajapaksa. What can be seen from the flaming and scorching wish of retaining the constitutionalised disqualification of the engagement in politics by those, who have dual citizenship is, for the most part, the fear, the impoverished ability, the poverty of self-confidence, lack of a pragmatic and chronologically systematised agenda, the castration of one’s persuasive capacity and the absence of perseverance.
With the UNP and JVP politics of ‘Yahapalanaya’, invoked to extirpate the exacerbations of corruption, the so-called politicisation of the Judiciary, criminalisation of politics, to produce the independence of State-appointed commissions and to protect human rights, finally ended up in Nineteenth Constitutional Amendment with pompous shouts of orienting Sri Lanka in the doctrinal tracks of Latimer House.
The Latimer House is the wealth of Commonwealth Principles to govern issues, such as the harmonious balancing of power and the interaction between Parliament, the Executive and the Judiciary in democratic societies. They set out in detail the consensus arrived at by representatives of the three branches of Government in the Commonwealth, on how each of their national institutions should interrelate in the exercise of their institutional responsibility. The Principles specify restraint in the exercise of power within their respective constitutional spheres so that the legitimate discharge of constitutional functions by other institutions is not encroached on.
Gotabaya and Basil Phobia
Among the countless fields where the UNP “good governance” had a most irritating yell, dual citizenship occupied the apex of their screaming altitude. At the time, the political clamour aimed at vote gluttony. During the 2015 General Election it appeared very patriotic to the voters to defeat President Mahinda Rajapaksa and make the former SLFP General Secretary Maithripala Sirisena, who betrayed the SLFP and defected to the UNP, the President. Maithripala Sirisena then appointed Ranil Wickremesinghe as the Prime Minister. It was subsequent to these changes, the 19th Amendment was introduced. The 19th Constitutional Amendment, inter alia, was conditioned by several phobias, to be more precise, the ‘Gotabaya phobia’ and ‘Basil phobia’. The dual citizenship phobia sprang from the said two phobias, taken cumulatively.
The UNP and JVP administrative hierarchy knew very well when Gotabaya Rajapaksa was Defence Ministry Secretary he defeated the LTTE and secured a victory for the Motherland with his military leadership. Basil Rajapaksa played the role of structuring the diplomatic equilibrium of global geo-politics, besides the Election victories and the best campaign-championing Rajapaksa strategist. They are the two administrative and political protagonists, on whom the UNP dual citizenship phobia was based. The idea was to remove them from comparative and competitive politics. There was another phobia.
That was the Namal Rajapaksa phobia. In short it was the Rajapaksa phobia, which had been reflected in the 19th-A with the normative textual formulation to dislodge Namal from contesting for the post of President. This is individual-oriented politics, which contaminated the purity of the judicial and jurisprudential constitutionality of the supreme law of the country. The law is not supposed to be biased. The formulation of law should comprise no compromise of the rights of any particular individual nor a group of persons nor any family of the country.
A statute, the more is the Constitution of a land, should contain the state of equality of all before itself. No normative codex should be produced, on the whims and fancies of a political leadership, in order to trespass the rights of an individual or a family. The constitutional norms are not properties to deconstitutionalise the political mandate, granted by the people, via exercising their franchise in a Presidential or General Election.
If a political leadership is incapable of reaching the destination, it aspired to achieve, the Constitution should not be abused to facilitate the non-realisable dreams of such psychologies, rejected by the voters. Therefore, the fundamental law of the country is, not to be individualised or individual-oriented, but people-directed. The violation of this judicial, jurisprudential and normative imperative leads to politicisation of the Constitution.
That is what happened to the 19A and namely, that was one of the valid grounds, the absolute majority of the voters of Sri Lanka elected the Basil Rajapaksa formed SLPP, as the champions of the governance of their affairs, particularly, with the strong wish of:
1) Rescinding 19A
2) Abrogating the presently operative Constitution as a whole and introducing a constitution which is:
- Justice-administering guaranteeing Judiciary independence.
As a result, the concept of citizenship duality was ideologically defiled and triggered various reasons for its brutal condemnation. One of them was the country security. The deceitful interpretation began to define the danger of nationality-plurality, as a security threat, grounded on the old and outdated slogan of perpetual allegiance to the sovereign. It was expounded that the naturalisation and the acquisition of a citizenship of another country, would betray the principle of perpetual allegiance, causing a bifurcation of the allegiance in to two, diametrically opposed to each other, parts. Thus, it might comprise a destructive threat to the country, especially, at a time, when a war is waged between two countries.
Here, the dual citizen was said to be ought to choose his choice: (a) the motherland of original citizenship or (b) the new land of naturalisation. Along with this contextual elucidation occurred the second explosion. That was, serving in the Army. Generally, in the majority of countries, during warfare, all citizens have to be soldiers. Now, the citizenship plurality became a threatening impediment, since, the duality of the citizenship divides the allegiance to the sovereign. The third drawback was the taxation and the validated space of the dual citizen to avoid the payment of tax, having recourse to the citizenship-rights of the either country.
These arguments contain no qualitative and innovative pertinence whatsoever, in the contemporaneous epoch of globalisation. For the most part, they are rooted in the uncivilised concepts of feudalism, the characteristic trait of which was isolationism as opposed to globalism. Besides, in that era, there was no consideration on the component of human rights, which produced its perceptible presence only after the Second World War. Hence, the duty of the constitutionalists of Sri Lanka is, to be well conversant with these innovative conceptual revolutions of the jurisprudence of globalism-based modern International Law and enrich the science of domestic law, making such international normative contexts relevant to the constitutionality of Sri Lanka.
The constitutionalism of the Motherland should not lag behind. Its advancement must be parallel to the march of the international normativism. Namely that is why the global judicial and jurisprudential intelligentsia always demands the presence of fifty five per cent community of legal experts in the Legislature, the qualified members of which, formulate, amend, revise and rescind laws. It is very unfortunate that Sri Lanka is devoid of this much needed imperative. The final result of this sine qua non is making Constitutions, totally unfit for the pragmatic needs of the country and amending it with the forming of each and every new Government.
The members of the Parliament have neither interest, nor inclination nor the ability to scrutinise the complicated constitutional texts with pervasion, permeation, penetration and circumspection. Thus, their doctrinal ignorance plus destitute knowledge of English, compel them to be subserviently obedient to the demands of bureaucratism, finally ending up casting the vote for a legal statute, they know not. Precisely, this too,in a way is, what is happening with the constitutional condemnation of nationality plurality.
Sri Lankan Example
Lets take Sri Lanka itself as the foundation to disprove the above criteria: (1) Our Motherland obtained its independence from British colonial rule in 1948. 72 years lapsed. The elected politicians ruled this country. Have we developed? Was there a positive contribution on the part of our politicians? What is the final result of their governance? Making the country, its citizens, and their born and even unborn children indebted is the only discernible repercussion these politicians have produced. Now, who are these politicians? Are they dual citizens, who destroyed this land? Indeed no, they are full-fledged citizens of Sri Lanka. The question arises: who are the real destroyers? Dual citizens or the Sri Lankan citizens with a single citizenship? (2) Secondly, in 1970s there was an insurrection in this country. It was launched by the JVP leadership.
The JVP leadership misled the innocent youth of this land into breaking and looting banks, in to destruction of wealth by setting flames of fire and murdering politicians and people, who committed no harm to anyone. The Government on the other hand shot and killed the JVP members, engaged in such brutalities. Now, how many dual citizens were among JVP members, who caused so much destruction and so many deaths? No one. On the part of politicians how many dual citizens were in the Government? No one. Now, the question arises: Who are the actual culprits? Dual citizens or the Sri Lankan citizens with a single citizenship? (3) Beginning from 1980s, there was a war in Sri Lanka waged by LTTE separatists.
It continued for a long unbearable period of almost three decades. The Tiger members exploded bombs, murdered people including peace-minded Tamils, who wanted to live in peace with all else, destroyed wealth, used innocent Tamils as human shields and what not. Did the Tigers wage the war to protect the rights of dual citizens? No. The terrorists were citizens with the single Sri Lankan citizenship.
The question arises: Who must bear the responsibility for the devastation? Dual citizens or citizens with a single Sri Lankan citizenship? Indeed, only those with a single Sri Lankan citizenship (4) In 2015, the UNP married the SLFP and formed a so-called National Government, branded as ‘Yahapalanaya’, the mouths of the members of which are full, with the irritating screams, against citizenship plurality. It appointed a Singaporean citizen as the Governor of the Central Bank of Sri Lanka. Even one month could not lapse. The biggest CB Bond scam in Sri Lanka took place.
Was there any dual citizen in this daylight robbery? Indeed no. Then, was there any political hand with powers, with the clandestine assistance of which the scam was put into operation? The right answer for this question should be only in the affirmative. Again, the question arises: Are the ones, hidden in the shade of the powerful hand, dual citizens or the citizens with single Sri Lankan Citizenship? Indeed, the citizens with single Sri Lankan Citizenship (5) The identical answer could be obtained for the destruction caused by the Easter bomb explosion, executed by ‘Islam’ state racist terrorists. The list, of course is endless.
Hence, at the concatenation of current circumstances, what is central is:
(1) to discard the political hypocrisy (2) take the country-profiting intelligent decisions (3) make the constitutional constituents fit for the needs of the country (4) not to lag behind the advancement of the international jurisprudence (5) to be positively parallel with the developmental innovations of the science of law (6) assimilate such innovations in to constitutional formulation and their subsequent ratification (7) observation of the right obligations, stemmed from global conventions and (8) conduct an open and fearless, debate-based and persuasion-oriented dialogue to disentangle the dual-citizenship tangle, entangled in. Why? The existential global propensity is, not to impede dual citizenship, but to emanate from the extant state of its toleration and magnify and proliferate the conceptual context of it from dual citizenship to plural citizenship.
About the writer:
Dr. Gamini Ilangakoon is a Lawyer, specialising in International Treaty Laws.