Diana Gamage case: CA slams petitioner, but dissenting judge agrees with him

Key facts in the writ petition seeking to disqualify State Minister Diana 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, the Court of Appeal (CA) said as it dismissed the petition in a majority decision on Tuesday.

With Justice K.K.A.V. Swarnadhipathi agreeing, CA President Nissanka Bandula Karunarathna stated in his ruling that it would be “legally untenable and indefensible” to issue an order to disqualify State Minister Gamage from her MP post.

Social activist Oshala Herath had filed the petition, alleging that State Minister Gamage was a British citizen and that she continued to remain in office without being a citizen of Sri Lanka. Accordingly, he had requested that the CA issue a Writ of Quo Warranto requiring the State Minister to show by what authority she claims to hold office and continues to function as an MP and to issue a Writ declaring that she is disqualified from being an MP and is thus not entitled to hold office as a Parliamentarian.

Justices Karunarathna and Swarnadhipathi, though, noted in their ruling that it could be “reasonably assumed” that the Criminal Investigation Department (CID), which investigated her citizenship issue, was not satisfied that there was prima facie evidence of an offence, as alleged by the petitioner, committed by Ms. Gamage or that there was prima facie suspicion of the same, as she had not been arrested to date or named as a suspect in the case before the Colombo Magistrate's Court.

Therefore, the two judges stressed that it was clear beyond any reasonable doubt that the entire application was a blatant show of mala fides (bad faith) on the part of the petitioner. “The petitioner is before this Court with malintent, in a vexatious attempt to bring disrepute to the 1st Respondent (Ms. Gamage) and tarnishing her good name, in pursuit of the petitioner's personal agenda,” the Court said, adding that the petitioner was not entitled to any of the relief sought before the Court.

In his dissenting opinion, Justice M.A.R. Marikkar stated that the petitioner had produced sufficient material to show that State Minister Gamage had not obtained

Sri Lankan citizenship and/or had renounced her British citizenship. As against the documents and the material produced by the petitioner, the State Minister had failed to prove that she was a citizen of Sri Lanka, he added.

He pointed out that Ms. Gamage had an obligatory right towards the petitioner and the public as she was holding a public office maintained by the taxpayers’ money and funds. As such, he emphasised that, as an MP, she should be an example and be transparent and accountable to the public. It was Justice Marikkar’s view that the

Diana Gamage

Shavindra Fernando: Counsel for Ms. Gamage

Osala Herath: Says he will appeal the verdict in the Supreme Court. Pix by Pradeep Dilrukshana duty of the State Minister is to prove her citizenship right in the instant action rather than challenging the petitioner’s position.

He stressed that the petitioner had proved a prima facie case against the State Minister, and as such, he could not agree with the findings of the CA President.

Petitioner Oshala Herath, meanwhile, told the Sunday Times that he respected the court and accepted the ruling given by Justice Marikkar. He added that he would file an appeal against the CA’s verdict in the Supreme Court in the next few days.

Hafeel Fariz with Nishika Fonseka appeared for Mr. Herath, while Shavindra Fernando PC appeared for State Minister Gamage.