It’s time to call the bluff

By Dr Leonie Solomons 

Have we missed the legal opportunity to verify whether our presidential candidates meet the criteria for Presidency as set out in our Constitution?  We certainly missed some - in court, in interpretation and in other ways, some perhaps unwittingly. 

Time to ask for legal proof in Court

There is one legal opportunity remaining under Article 35 (3) if the winning President has questionable legitimacy. 

The 19th Amendment to the Constitution repealed Article 35 and in its place presidential immunity is denied for Presidential Elections: 

• Article 35: (1) While any person holds office as President of the Republic of Sri Lanka, …. (3) The immunity conferred by the provisions of paragraph (1) shall not apply to proceedings in the Supreme Court under paragraph (2) of Article 129 and to proceedings under Article 130 (a) relating to the election of the President or the validity of a referendum.Thus exercising Article 35 (3) the President can be brought to court on Presidential Election issues and the matter referred to the Supreme Court and applied will be the rigour of legal proof as required by the Courts. 
• Article 130: The Supreme Court shall have the power to hear and determine and make such orders as provided for by law on – (a) any legal proceeding relating to 94[election of the President or the validity of a referendum]; (b) any appeal from an order or judgment of the Court of Appeal in an election petition case : Provided that the hearing and determination of a proceeding relating to the 95[election of the President or the validity of a referendum shall be] by at least five Judges of the Supreme Court of whom, unless he otherwise directs, the Chief Justice shall be one. 131. The Supreme Court shall have according to law. The fact that it is observed in the breach (e.g. Election Commission accepted the presidential candidate’s nomination) does not mean it is legal. 

Missed opportunity

There is a provision for rival presidential candidates to object to other presidential candidates on the grounds of legitimacy. For whatever reasons, such was never pursued. If exercised, then the Presidential Elections Act 15 of 1981 requires the Election Commissioner to refer the matter to the Supreme Court for their verdict. 

• Section 14 (1) Objection may be made to the nomination papers of a candidate by any rival candidate or the person who has signed the nomination paper of such rival candidate on the ground (a) that it is apparent from the contents of the nomination paper that the candidate is not qualified to be elected as President;

On a different note, there is an argument that neither the 19th Amendment nor the Presidential Elections Act 15 of 1981 specifies what constitutes proof of not being a citizen of another country. Thus, it appears the Election Commission limited itself to validation of the Presidential Candidates on specified procedural matters, like timelines and lodgements of forms and deposits.  In the absence of what constitutes proof of not being a citizen of another country, the Election Commission appears to have taken the evidence provided by presidential candidates on face value and not sought rigorous legal verification from other sources. It appears, lodgement of renunciation papers has been deemed to be enough by the Election Commission. Yet a worthwhile verification was to seek the Loss of Citizenship Certificate, or something equivalent, which is issued by the other country of citizenship. Much like it is not sufficient for a divorcee to re-marry without a Certificate of Divorce issued by the Courts. It is such a certificate that attests to the fact that both parties to the contract have agreed to the renunciation. 

Application for renunciation is necessary, but in and of itself, it is not sufficient proof that the other party to the contract has accepted that renunciation. This non-acceptance could be due to court cases, taxation matters, procedural matters, etc. Whatever the reason, until such acceptance has been signed and certified, that status quo of that country’s citizenship prevails.

It is this proof that is today lacking, amidst a high expenditure and tightly contested Presidential Election campaign. Such proof, however, will be of relevance if the winning President’s sole citizenship remains questionable.

An extension to that question is whether that sole citizenship existed on the date of presidential nominations or the date of winning the Presidency. In answer, ‘not being a citizen of another country’ is stated in the 19th Amendment in the clause pertaining to presidential eligibility. Thus the sole citizenship test is based on 7 October.

• Article 92: Every person who is qualified to be an elector shall be qualified to be elected to the office of President unless he is subject to any of the following disqualifications – (a) if he has not attained the age of thirty five years ; (b) if he is not qualified to be elected as a Member of Parliament under sub-paragraph (d), (e), (f) or (g) of paragraph (1) of Article 91 ; and 59[(c) if he has been twice elected to the office of President by the People. ] (d) if he has been removed from the office of President under the provisions of sub-paragraph (e) of paragraph (2) of Article 38.
• Article 91 (d): if he is … [(xiii) a citizen of Sri Lanka who is also a citizen of any other country; 

The other question is whether in exercising Article 130, the onus of proving acceptance of renunciation lies with the defendant or the accused. Some argue, that the litigant should formally inquire of the Embassy whether the renunciation of the Loss of Citizenship has been formally approved and accepted by that country. However, the counter argument is that it is for the accused to provide the required verifiable proof to meet the rigour of our Supreme Court. 

Uphold the Constitution

It is vital, that the noble principles of the rules of the land are adhered to and where ambiguity prevails in application, the matter be referred to the Supreme Court for their verdict as allowed by Article 130 of the Constitution. 

It is critical we call and test the bluff as permitted by Article 35 and the legal means afforded by Article 130. If the Supreme Court determines Presidential criteria has been complied with, it means external pressure to twist the President’s hand is reduced.  However, if the bluff is proven in court, it signals we civilians are awakening and exercising our inalienable sovereign power.  It also serves as an example to politicians that they are not above the law.