Supreme Court justice sought as Diana wins CA verdict
Sunday Punch round-up of the case that’s the talk of the town
Diana Gamage won an outstanding legal battle in the Court of Appeal on Tuesday when two judges of a three-judge bench held ‘there was no legal impediment for her to be a Member of Parliament.’
But though she won the Appeal Court battle, she hasn’t still won the war. Minutes after the court had delivered its majority decision granting her victory, the undaunted plaintiff, social activist Osala Herath, vowed on the steps of the Hulftsdorp complex to take the battle to higher ground and seek justice in the pristine air of the Supreme Court.
The battle had begun in Colombo’s Magistrate Court over two and half years ago. Following a complaint lodged at the CID by Osala Herath against MP Diana Gamage’s citizenship credentials, Chief Inspector Sugath Samarasinghe had filed a B Report in the Colombo Chief Magistrate in April 2021. According to the report, initial investigations had revealed that MP Gamage was likely to have committed offences deemed punishable under the Penal Code and the Immigrants and Emigrants Act.
The B report alleged that Diana Gamage had obtained her Passport bearing No N 5091386 dated 24th January 2014 by submitting her National Identity Card bearing NIC No 658534300V issued on 22nd December 2004 and Birth Certificate bearing No 6553. It is also alleged, she had obtained from the Department of Immigration and Emigration, an Official Passport bearing No OL 5654794 on 7th August 2018, by submitting the same NIC but a different birth certificate bearing No 4683.
According to the Department’s database, Diana Gamage from 10th October 2004 onwards, using her British passport bearing No 521398876, had applied several times for a visa to visit Sri Lanka and had obtained the said visa from 27th August 2014 till 16th July 2015, Controller - Visa and Border Control, Ms. J. K. Athukorala had informed the Police.
On October 27 last year, the Colombo Chief Magistrate, noting from the case file that no further facts have been reported by the CID, ordered it to present the facts on November 10. But on this date, too, the magistrate had to order the CID again to expedite their investigations into Diana’s citizenship issue and submit a progress report to court on December 15.
Exasperated by inordinate delays with the CID seemingly dragging its feet, activist Osala Herath filed a petition for a Writ of Quo Warranto with the Court of Appeal on November 12 last year.
Quo Warranto simply means ‘by what authority’ one holds public office. The office must be a public office and it is directed against a person claiming to hold such an office to show by what authority he or she holds it.
The crux of the plaintiff Osala Herath’s case is that:
State Minister Diana Gamage is a British citizen and only a British citizen can hold a British passport
By virtue of becoming a citizen of another country, Parliamentarian Diana Gamage has ceased to be a Sri Lankan citizen. She has not obtained dual citizenship.
She is disqualified from election as an MP or to sit and vote in Parliament under and in terms of Article 91 read with Article 89 and Article 90 of the Constitution of Sri Lanka, which states that only a Sri Lankan citizen is qualified to sit in Parliament.
Diana Gamage’s defence was: The petition should be dismissed since it has not complied with the Court of Appeal rule 3(1) (a) of 1990 which insists that the plaint ‘shall be accompanied by the originals of documents material to such application (or duly certified copies thereof) in the form of exhibits’.
The petitioner was relying on a statement given by her to the CID which has no evidential value since it is inadmissible in accordance with the Evidence Ordinance.
The Appeal Court President, Justice Nishanka Bandula Karunaratna, who delivered the judgement with Justice Khema Swarnadhiphi agreeing, dismissed the writ and held for the defendant Diana Gamage while dissenting Justice Ahsan Razik Marikkar held with plaintiff Osala Herath.
On the Quo Warranto issue, Justice Karunaratna referred to the Geetha Kumarasinghe case in 2017where the Supreme Court had affirmed the Appeal Court judgment that Geetha Kumarasinghe was disqualified to be a Member of Parliament since she was a dual citizen of Switzerland.
Justice Karunaratna stated, ‘the Supreme Court also observed in the said case that since the Appellant had admitted that she was a citizen of Switzerland and was now contending that she had given up such citizenship, "the burden shifts to the 1st Respondent to prove the date on which she gave up citizenship of Switzerland.”’
The Supreme Court went on to state, ‘The learned Counsel for the Respondent says that the 1st Respondent-Appellant - Geetha Kumarasinghe - is the best person to speak about the date on which she gave up the citizenship of Switzerland more than anybody.
But in the present case, Justice Karunaratna held that Diana Gamage holds office as a Member of Parliament by virtue of No. 2188/46 of Friday, 14.08.2020, a Gazette issued under the hand of the Chairman and Members of the then Election Commission. The plaintiff only relies on a CID statement.
The learned judge said; ‘it can be reasonably assumed that the CID is not satisfied that there is prima facie evidence of an offence, as alleged by the Petitioner, committed by the 1st Respondent – Diana Gamage -or that there is prima facie suspicion of the same, as the 1st Respondent has not been arrested to date or named as a suspect in the Magistrate's Court case. Therefore, it is clear that the Petitioner is attempting to circumvent the ordinary course of criminal procedure and compel this Court to make an order that would in effect bring ruin and disrepute to the 1st Respondent.
Justice Karunaratne, dismissing the writ application, stated: ‘The petitioner says that he submitted this petition as a public welfare case. In presenting the case for public welfare, it should be presented without political theories hidden behind it. Unethical profit should not be expected from such cases. It should also be presented in good faith. The petitioner has submitted this with the aim of defaming the respondent MP Diana Gamage and maliciously tarnishing her good name in pursuit of his personal agenda. It is not a right to get relief from the court.’
Justice Marikkar held a different opinion.
On the question of admissibility of evidence, Justice Ahsan Marikkar, in his dissenting judgment, held that unlike in a criminal matter governed by the Criminal Procedure Code, Penal Code and Evidence Ordinance, ‘there is no provision in a Writ Application not to consider a legally valid document produced by a party.’
He said: ‘When comparing the document marked and produced by the 3rd Respondent, the Controller General of Immigration, it contains the same passport numbers referred to by the 1st Respondent Diana Gamage in her statement made to the Criminal Investigation Bureau. Therefore, there is prima facie evidence to support the argument raised by the Petitioner that the 1st Respondent is not a Sri Lankan citizen’.
The learned judge said: ‘Other than denying the authenticity of the document produced to obtain the 1st Respondent’s local passports and challenging that the statements given to the Criminal Investigation Department cannot be used as evidence, the 1st Respondent Diana Gamage had not taken any initiative to show any document that she is a citizen of Sri Lanka’.
‘A Member of Parliament is paid a monthly stipend and duty-free benefits to obtain vehicles and after serving for five years is entitled to pension etc. All these remunerations are paid out of the taxpayers’ money and public funds. Therefore, a Member of Parliament should be transparent to the public and should not hide their identity, leaving it to be uncovered only through the investigation of the said identity’.
Justice Marikkar stated: ‘I do not see any bar, difficulty or obstruction for the 1st Respondent Diana Gamage to divulge her citizenship right to the court. However, the 1st Respondent had taken up objections and has not divulged her citizenship right. The 1st Respondent’s denial had strengthened the Petitioner’s prima facie case against the 1st Respondent. In such an occasion, the Petitioner as well as the public has a legitimate right to know that the people who are representing them in Parliament are the citizens of Sri Lanka’.
With reference to the uncertified copies of documents and the photocopy of Diana Gamage’s passport details, Justice Marikkar observed: ‘I have already said in my above analysis, the preliminary objections raised by the 1st Respondent cannot be sustained as most of the original documents are in the custody of the 1st Respondent Diana Gamage and the 3rd Respondent – the Controller General of Immigration’.
‘Once the said passport is issued by the authority, it becomes the property of the said person to identify him and recognise a person’s citizenship. Thus, the original copies of the passport should be available with the 1st Respondent as the property belongs to her’.
Justice Marikkar drew his attention to Justice Sisira De Abrew’s decision in the Geetha Kumarasinghe case. In the said decision, reference was made to the Evidence Ordinance:
Section 101 reads as follows: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
Justice Marikkar also presented an example where the burden of proof lies. He said: ‘Section 106 reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” Illustration to this section reads as follows: “A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.’
Justice Marikkar held: ‘Following the literatures and the principle of Writ of Quo Warranto, it is clear that the Petitioner Osala Herath is entitled to obtain reliefs under the Writ of Quo Warranto directing the 1st Respondent Diana Gamage to prove her credentials to hold the office of a Member of Parliament of Sri Lanka and to be a State Minister.
Despite Justice Marikkar’s judgment, Diana won her day in court. She did so even without producing a single document or certificate as proof of her Lankan citizenship. But with plaintiff Osala Herath’s avowed intention to seek justice in the Supreme Court, will her victory be short-lived? That doesn’t daunt Diana. Oh no.
She told the Daily Mirror on Thursday: ‘I am usually ready to face anything. I accept the verdict given by the Appeal Court with gratitude and it shows that the judiciary is independent.’
Perhaps, it will be further cemented when the court of last resort, the Supreme Court, unearths the truth of Diana’s mystery citizenship.