Gotabaya’s impossible dream to become Lanka’s next president
USA Supreme Court precedent emerges from the law reports to damn presidential hopeful’s high hopes to contest the 2020 presidential poll
This week on Tuesday as Pohottuwa presidential hopeful Gotabaya Rajapaksa walked in to the newly established express High Court to face charges of his alleged involvement in the Rs. 80 million D. A. Rajapaksa mausoleum case, he faced the media who asked him a pertinent question: ‘Reports say that Mahinda has ditched you as the presidential candidate and that he is promoting brother Basil as the candidate.”
His answer: “These media reports are aimed to convey that there is a rift within the family. Mahinda Rajapaksa has still not nominated anyone for that slot. If I am asked to suggest my opinion, my own choice will be Basil to run for the presidency.” Very magnanimous. But isn’t it the case that neither he nor Basil can contest since, as things do stand today, both the Lankan Constitution and the laws of America, applicable to them as dual citizens, debar them from contesting the presidency?
For the die’s cast. And an iron curtain has descended to end Gotabaya Rajapaksa’s elusive dream to become the next president of Sri Lanka. Descended to put the final full stop to his political ambitions to be the next Head of the Lankan State. The curtain of iron has crashed down to bludgeon his dreams and turned his quest into an impossible dream.
Not that he is not popular. He is immensely so. Perhaps, next to his elder brother Mahinda, he rules the roost in the popularity stakes this side of the southern border.
It’s not the popularity contest he has to worry of when it comes to entertaining his chances of being first past the post at the presidential poll if given a clear run on flat ground.
The concern is of his ability to jump over the insurmountable barrier of the legal hurdles placed before his course in this high stake political steeplechase that faces him today; and this must give him pause. It’s the kind of daunting hurdle which even winged Pegasus would think twice before risking a leap, knowing full well it would only land him in a watery ditch, face down.
So what’s the handicap he faces that prevents him from even making it to the starter’s post? It’s the baggage he carries. Whereas one citizenship would have sufficed for many, he chose to be doubly burdened with two. And that, too, with citizenship of the United States. What would have been a boon for him then, greeted with cheer and celebration when he received it from his American masters in his chosen US domicile before the Rajapaksa sun dawned in 2005, has now turned to be a curse which he finds unable to shrug off when it comes to smoking the ultimate Lankan honeycomb at the 2020 presidential election.
To briefly recap: With the enactment of the 19th Amendment, no person holding dual citizenship can contest a presidential election, let alone a parliamentary one.
Gotabaya Rajapaksa is a dual citizen of both Lanka and the US. Thus he cannot contest any election, be it parliamentary or presidential unless he renounces his duality. After expressing his intention to run for the presidency provided his brother Mahinda giving him his blessings, he has been asked on many occasions by the media whether the duality problem would not serve to render him ineligible to vie for that high office, he has flippantly dismissed it, stating, “it’s no problem, I can get it renounced within two weeks or two months the most." But is it that the case? Can one renounce citizenship so casually and unilaterally as one can cancel his life insurance policy or cancel membership of the Golf Club or Capri – and even then only after paying arrears on the subs.
The validity of the 19th Amendment’s Article that disqualifies a person from being member of Parliament and, by the same token from contesting a presidential election was unanimously affirmed by a full bench of the Supreme Court in the case of Geetha who held dual nationality with Switzerland and was booted out of Parliament as a result.
With such a full bench precedent set in the Supreme Court, no doubt, the same ruling would serve to disqualify any other holding dual citizenship from seeking public office. Gota’s answer has been to say, “No prob. I will renounce my US citizenship when the time is ripe.” But is it that easy? That one can eat of the fruit and throw it away half eaten at one’s own pleasure? The answer is no.
The first hurdle that Gotabaya faces is a question of time. Although US law on the matter of renunciation simply says that all one had to do was to walk into a USA consular Office outside the states and declare an oath renouncing US citizenship, the procedure involved in the final excommunication by the USA Government is not that simple. And the USA does not look too kindly and take a shine to those who, having being granted the privilege to enjoy its broad acres, wish, upon leaving, to slap the face of the Statute of Liberty saying, : “Thanks for the ride, babe. But drop me off for I’ve got Lanka on my mind”.
As the Sunday Punch stated on November 5th last year, ‘Why Gotabaya cannot bat in Lanka’s Twenty-Twenty polls: “For it’s only after the intention to renounce is informally expressed that the process begins before one can make his oath of renunciation. The local Embassy will forward the filled application form to several agencies in the USA.’
When a local embassy enters a filled application form into the system, the globalised US State Department system automatically computer generates the process. The application gets wetted at every relevant US government agency from the Department of Homeland Security, to the Pentagon, to the Department of Justice, the FBI and The Treasury.
The task of these agencies will be to ascertain whether the applicant seeking renunciation of citizenship has been involved in money laundering, in any criminal activity, in drugs, whether he is or she is in divorce proceedings, in tax evasion, in short, in every gamut of activity that, in their discretion, may hold their attention.”
“Depending on the case in hand, the process can take three months to three years. For US law sets no time frame and leaves the investigative agencies to take their own cool time to furnish their report. “
The Sunday Punch also stated that: But, of course, politics, rule supreme, even in the US of A “and should by chance the US Administration see in Gotabaya a twinkling star to shine upon American interests in the South Asian region, no doubt, his request for renunciation will be done in double quick time. Not in two weeks. But in forty eight hours.”
However, even that is also now open to question and has to be revisited and revised in the light of a 19-year United States Supreme Court’s decision which was not in anyone’s radar until a local Sinhala newspaper spotted the beep and unearthed it from the US law reports and splashed it in its pages two weeks ago.
It concerns the case of a certain Puerto Rican born citizen called Lozada Colon. Born on Puerto Rican soil on November 2, 1952. Since Puerto Rico is a territory of the United States, he automatically became a citizen of the United States in terms of the Immigration and Nationality Act (INA). Lozada, who is a lawyer, ran for Mayor of the city of Mayaguez as a member of the Puerto Rican Independence Party in 1996. But Puerto Rico, though a territory of the United States also bars, like Lanka has barred with the 19th Amendment, a citizen holding dual citizenship from contesting the polls for public office. Twenty two years ago he found himself in the same position facing a major legal hurdle as Gotabaya and Basil face now.
On September 23, 1996, Lozada appeared at a United States Consulate in the Dominican Republic and stated that he desired to renounce his United States nationality, as permitted by Section 349(a)(5) of the INA,
After speaking with a consular officer, and in conformity with procedures prescribed by the Secretary of State, Lozada executed a written "Oath of Renunciation of the Nationality of the United States" and a separate "Statement of Understanding." As the regulations demanded. He also submitted a separate written statement explaining his reasons for seeking to renounce United States citizenship, as permitted by the Secretary's procedures. In his supplemental statement, Lozada asserted that he is a "Puerto Rican citizen" with an "inalienable right" to live in Puerto Rico, even after renouncing his United States citizenship.
Under US law, specifically the Immigration and Nationality Act, when a consular officer has reason to believe that an individual who is outside the United States has lost United States nationality under the terms of the Act, he or she
shall certify the facts upon which such belief is based to the Department of State, in writing, under regulations prescribed by the Secretary of State.
If the report of the diplomatic or consular officer is approved by the Secretary of State, a copy of the certificate shall be forwarded to the Attorney General, for information, and the diplomatic or consular office in which the report was made shall be directed to forward a copy of the certificate to the person to whom it relates. Approval by the Secretary of State of a certificate under this section shall constitute a final administrative determination of loss of United States nationality subject to such procedures for administrative appeal as the Secretary may prescribe by regulation, and also shall constitute a denial of a right or privilege of United States nationality for purposes of section 1503 of this title.
In accordance with these provisions, the consular officer who received petitioner's renunciation papers forwarded them to the Department of State in Washington, together with a draft Certificate of Loss of Nationality. The Secretary of State, whose word was final, however, took no immediate action with respect to petitioner's case. On August 13, 1997, petitioner filed action in the United States District Court for the District of Columbia, seeking a writ of mandamus "compelling the Department of State to enter a decision" with respect to his renunciation and "ordering the Department to issue forthwith to [petitioner] a certificate of loss of nationality."
After a bitter long drawn legal wran- gle to establish his right to renounce US citizenship to do politics in Puerto Rico, a three-year-long journey that traversed the District Court, went through the Appeal Court and finally landed in the United States Supreme Court, Lozada’s right to renounce US citizenship was denied.
Though this case may have no bearing when it directly comes to affect a Sri Lankan citizen, given the fact that Sri Lanka is a sovereign nation whereas as Puerto Rica is but a vassal state, a territory of the USA, though empowered with its own laws; though the precedent set by the USA Supreme Court in 1999 – which took three years to reach its final frontier of decision -it nevertheless reveals, does it not, the long and arduous path one has to trek to arrive at one’s hoped for destination?
And a further stumbling block rises in Gota’s path. Even if the US Secretary of State, were to place his rubber stamp and approve Gotabaya’s application to renounce US citizenship on the basis that America’s star will shine in Lanka, will not the Secretary be bound by the USA Supreme Court Court’s Lozada precedent?
Once an application is made to renounce USA citizenship and weeks before it is formally granted, the USA Treasury is legally bound to publish a notice in the newspapers announcing such an intention and inviting the public to place their objections, if any – in the same manner Church priests do at Christian weddings saying, “Should anyone here present know of any reason that this couple should not be joined in holy matrimony, speak now or forever hold your peace".
With such kind of notice, it is hard to see the American Tamil Diaspora, armed with the Lozada precedent, not leaping into action to petition the US courts to prevent the US Secretary of State granting Gotabaya the right to renounce USA citizenship to enable him to contest the Lanka presidential polls.
The Courts may hold otherwise and deny them their request. But wouldn’t the sands of time have run out in the hour glass before the presidential poll is held come next year and a captain is chosen to salvage the drowning ship? Perhaps Gotabaya should thank his lucky stars that he is counted out of the running by both American and Lankan laws rather than face the prospect of going down with the ship. That heaven’s malice has not granted him, his ambitious prayers?
For time is not on his side. And time is of the essence. Neither are the laws of both Lanka and the US in his favour.
Given the rising tide of the present coalition government’s unpopularity and all the chances of it being able to rise like the phoenix from its ashes seem to be ebbing away day by day, unfortunately for the Rajapaksa clan, at the moment when they find themselves poised to ride on the crest wave to power’s shores, the legal current acts contrary; and drags them further and further away to meet their fate in a lost horizon of impossible dreams, in the doomed sphere of unreachable stars. Or, to put it bluntly, their present wishful hopes condemned to a black hole.
The 19th Amendment has effectively blocked Mahinda Rajapaksa with the two-term limit and his son Namal is blocked with the 35 year age qualification from contesting the presidential polls in 2020. Even as the dual citizenship blockade has effectively barred Gotabaya or Basil’s chances of even handing over their nomination papers.
Perhaps that‘s what moved an ardent Mahinda loyalist Kumar Welgama to say last fortnight in public when Mahinda anointed his son Namal as the presidential candidate to bloom in 2025: The SLFP Party does not belong to the Rajapaksas. There are many veterans in the party to lord the ship’s deck.
But, alas, none seems to be in the offing, condemned as they are to the galleys. Even as the UNP seems to be stuck with Wickremesinghe, the opposition seems to be glued to the Rajapaksas.