Writ Petition against Basil Rajapaksha.pdf - Prasanna Premasinghe

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IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for mandates in the nature of Writs of Quo Warranto, Mandamus and Prohibition under and in terms of Article 140 of the Constitution. 1. Ven. Ulapane Sumangala Thero C.A. Application (Writ) No: “Dharmayathana Temple”, Narahenpita, Colombo 05. 2. Lacille de Silva No. 91/B, 6th Lane, Parakrama Mawatha Talahena, Malabe 3. Walgamage Suraj Prasath Kumara No. 34/7, Silvester Road, Ratmalana. Petitioners Vs. 1. Hon. Basil Rajapaksa Member of Parliament Minister Finance The Secretariate Colombo 01 2. Secretary-General of Parliament Parliament Complex Sri Jayewardenepura - Kotte 3. Hon. Attorney-General Attorney-General’s Department Hulftsdorp Colombo 12 1 Respondents To: HIS LORDSHIP THE PRESIDENT AND THE OTHER HONOURABLE JUSTICES OF THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA On this 5th day of November, 2019 The Petition of the Petitioners above named appearing by Mrs. Jayamuditha Jayasuriya, their Attorney-at-Law states as follows; 1. The Petitioners are Citizens of Sri Lanka. 2. The 1st Petitioner is a Buddhist Monk, the Chief Incumbent of Dharmayathana Temple and the Principal of Dudley Senanayake Vidyalaya, Colombo 05. 3. The 2nd Petitioner is a retired civil servant who was the Secretary to the Presidential Commission to Investigate in to Corruptions of High Magnitude in the public sector. The 3rd Petitioner is an Attorney-at-Law of the Supreme Court. 4. The Petitioners are persons who are concerned about the matters of national and public interests and practically involved in many a social activity to enhance the well-being and the welfare of the general public of Sri Lanka and to promote good governance while eradicating widely spread corruptions, specially, in the public sector. 5. The Petitioners institute these proceeding as a matter of public interests’ litigation since the events which are pleaded in this petition have a severe derogation of the Sovereignty of Sri Lanka as well as the rule of law which is necessary to uphold democratic norms and principles for the security and the betterment of the people and the country. Further it leads into an economic disnature of the county. 6. The 1st Respondent at present is a Member of Parliament and the Minister in charge of the subject of Finance. 7. The 2nd Respondent is the Secretary General of Parliament. 8. The 3rd Respondent is the Hon. Attorney General. 2 9. The 1st Respondent was a politician who contested for Mulkirigala electorate in the parliamentary general election held in 1977 representing Sri Lanka Freedom Party and he was defeated in that election. 10. The 1st Respondent thereafter represented United National Party and he was the election agent of UNP candidate Mr. Ananda Kularatne, who contested from United National Party in the by-election held for the said electorate in or about 1981. 11. Thereafter the 1st Respondent permanently left Sri Lanka and migrated to United States of America in early 1990 and became a citizen of United States of America. 12. The Petitioners state that until November 2005, he and all his family members had their permanent residence in Los Angeles, USA and he came back to Sri Lanka only after his elder brother Hon. Mahinda Rajapaksa was elected as the President of Sri Lanka in November 2005. But all his family members remain citizens of USA. 13. The Petitioners state that thereafter he was appointed as a Member of Parliament from the National List of United People’s Freedom Alliance (UPFA) and subsequently became a minister. He was elected as a Member of Parliament in 2010 and held a cabinet portfolio. 14. The Petitioners state that the 1st Respondent openly stated and wide publicity is given by media prior to and after the parliamentary election held in 2020 that he will never renounce or give up his citizenship of United States of America under any circumstances and his USA citizenship is much more important and valuable to him than any ministerial portfolios in Sri Lanka. A news item published in Colombo Telegraph is annexed hereto marked as “A1” and plead as part as parcel thereof. 15. The Petitioners state that they were unable to ascertain whether he has in fact obtained a dual citizenship in Sri Lanka or not though the petitioners made many attempts to ascertain it. 16. The Petitioners state that Parliament enacted the 19th Amendment to the Constitution on 28th of April 2015 making provisions in Article 91(1)(d)(xiii) that a person who holds a citizenship of another country is not qualified of being elected, or to sit and vote in Parliament. 3 17. The Petitioners state that 20th Amendment to the Constitution was enacted by Parliament and came into operation on 29th October 2020. 18. The Petitioners state that the 1st Respondent was appointed as a Member of Parliament by Sri Lanka Podu Jana Peramuna (SLPP) on 08th July 2021 and thereafter he was appointed as the Minister of Finance on the same day. True copies of photographs where he took oath before the Speaker and the President are annexed hereto marked as “A2(a)” and “A2(b)” and plead as part as parcel thereof. 19. The Petitioners state that the 1st Respondent’s political influence and arrogance is reflected in the photograph marked A2(a) whereas for the first time in any democratic parliament in the World, the Speaker of the Parliament was standing until the 1 st Respondent took oath adding insult to injury in the derogation of the democratic values and norms. 20. The Petitioners state that members of parliament do come within the purview of public officer in terms of Article 170 and as provided in Article 61 and that no person shall be permitted to enter upon duties of his office until he takes and subscribes the oath or makes and subscribes the affirmation as set out in the 4th schedule to the Constitution of the Republic of Sri Lanka. 21. The Petitioners state that Article 157A of the Constitution provides that no public officer shall be permitted to enter upon duties of his office until he takes and subscribes the oath or makes and subscribes the affirmation as set out in the 7th schedule to the Constitution. 22. The Petitioners state that it is a mandatory requirement for any person who obtains citizenship in United States of America has to make an oath of allegiance to absolutely and entirely renouncing and abjuring all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which he has heretofore been a subject or citizen. 23. The Petitioners state that the Oath of Allegiance for prospective citizens originated with the Naturalization Act of 1790, which required applicants to take an oath or affirmation "to support the Constitution of the United States", but did not provide a text. The Naturalization Act of 1795 added renunciation of the new citizen's former 4 sovereign to the oath. The Naturalization Act of 1906 added the section of the oath requiring new citizens to defend the Constitution and the laws of the United States of America against all enemies, foreign and domestic; and bear true faith and allegiance to the same. The Oath acquired a standard text in 1929. 24. The Internal Security Act of 1950 added the text about bearing arms and performing noncombatant service in the armed forces of the United States. The section about performing work of national importance under civilian direction was added by the Immigration and Nationality Act of 1952. 25. The Petitioners state that PUBLIC LAW 414 - JUNE 27, 1952 "Immigration and Nationality Act" provides oath of renunciation and allegiance under section 337 in the following manner; (a) A person who has petitioned for naturalization shall, in order to be and before being admitted to citizenship, take in open court an oath; (1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5) (A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by the law. 26. The Petitioners state that the 1st Respondent by making the said declaration and taking oath has entirely renounced and abjured all allegiance and fidelity to the State of Sri Lanka and its Sovereignty and he is bound to take arms on behalf of USA when required by the law and to support and defend Constitution of the USA. 27. The Petitioners state that Article 1 of the Constitution has assured and guaranteed that Sri Lanka is a Free, Sovereign, Independent and Democratic Socialist Republic and Article 3 provides that the Sovereignty is in the people and is inalienable. Article 4 5 thereof further provides the Sovereignty of the people could be exercised only in the manner provided therein. Accordingly, no aliens in law could take part in the government or administration. 28. The Petitioners state that the 1st Respondent took oaths of affirmation when he was appointed as a Member of Parliament as well as the Minister of Finance in which he solemnly declared and affirmed that he will be faithful to the Republic of Sri Lanka and that he will to the best of his ability uphold and depend the Constitution of Republic. 29. The Petitioners state that the 1st Respondent being a person who has on oath absolutely and entirely renounced and abjured all allegiance and fidelity to the Republic of Sri Lanka and committed to depend the Constitution of USA cannot and should not make a false oath or affirmation which amounts to a conflict of interests and such an oath is dishonest, deceitful and disgraceful. It also amounts to perjury in law. 30. The Petitioners state that the 1st Respondents who committed to depend the Constitutional Sovereignty of USA, cannot support and defend a constitution of another country or sovereignty or a foreign domain due to conflict of interests which can lead to a calamity to either or both the countries. 31. The Petitioners state that the 1st Respondent as well as his wife and all the children are citizens of USA and his first and foremost allegiance and affiliation is towards USA and it is much greater than that of Sri Lanka. 32. The Petitioners state that the 1st Respondent being the Minister of Finance in Sri Lanka submitted the Cabinet Memorandum dated 06.09.2021 to facilitate New Fortress Energy, (NFE) a Company of United States of America, to purchase 40% shares of West Coast Power (Pvt) Limited (WCPL), the execution of the Terminal Project which includes the Floating Storage Regasification Unit (FSRU), Mooring System and Pipelines and the Supply of Liquefied Natural Gas (LNG). A true copy thereof is annexed hereto marked as “A3” and plead as part as parcel thereof. 33. The Petitioners state that the said Cabinet Memorandum had not been circulated among the members of the cabinet and haphazardly mentioned in the cabinet and the Ministers of the Cabinet are in the dark and clueless about the repercussions of the said Cabinet Memorandum. A group consisting of ministers and members of parliament representing 6 the minority parties within the coalition government are openly demanding an appointment from the President to discuss the danger of the said memorandum, but the President has denied an opportunity for them to meet the President until 27th October 2021. 34. The Petitioners state that Hon. Wimal Weerawansa, Minister of Industries, openly expressed to the media that the ministers of the cabinet were not given an opportunity at least to read the contents thereof and to understand the effect of the said memorandum. A copy of the news report of “The Morning Aruna” Newspaper is annexed hereto marked “A4” and plead as part and parcel thereof. 35. The Petitioners state that Hon. Wimal Weerawansa, Minister of Industries, participated in a protest meeting organized by members of 11 minor political parties, which are parties in the coalition government and stated the disgracing manner in which the said cabinet memorandum was presented and the fact that it was not duly adopted in the Cabinet. His speech was issued to the media by his media secretary on 30 th October 2021. A copy of the said media release is annexed hereto marked “A5” and plead as part and parcel thereof. 36. The Petitioners state that on the assumption that the said cabinet memorandum is approved by the cabinet of ministers, but in fact not duly approved, the Government of Sri Lanka has signed an agreement with the said NFE strangely at 12.06 AM (midnight) A copy of the news report of in Sirasa, News First website is annexed hereto marked “A6” and plead as part and parcel thereof. 37. The Petitioners state that the 1st Respondent and the Government of Sri Lanka keep the said agreement secretively and undisclosed without allowing the ministers, members of parliament and the general public to make aware of the contents of the agreement. To the best of the petitioners’ knowledge, the most of the ministers of the cabinet have not seen the said agreement and they have been denied even a copy of the agreement. 38. The Petitioners state that as a result of the said agreement, the said USA company will lead to hold the monopoly in the electricity generation and distribution in Sri Lanka. 7 39. The Petitioners state that there are several fundamental rights violation applications filed in the Supreme Court by several parties seeking to have the said agreement declared null and void. 40. The Petitioners state that it is prima facie to be presumed and could be inferred that the 1st Respondent was obliged to do so due to the prevalence of conflict of interests between two countries and succumbed to the pressure from the said USA Company. The Petitioners state that they verily believe that the 1st Respondent due to the fear that he and his family were exposed to a danger of losing their citizenship in USA, he hurriedly made arrangements to sign the said agreement secretively and surreptitiously in a mid-night behind the back of the cabinet ministers. 41. The Petitioners state that; a) in the first part of 1990 the decade or thereafter, the 1st Respondent has taken the following oath of allegiance to obtain the citizenship in USA; "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God." b) in July 2021 the 1st Respondent has taken the following oath to assume duties as a Member of Parliament and further as the Minister of Finance under and in terms of schedule 4 of the Constitution of Sri Lanka which reads thus; "I………………………………do solemnly declare and affirm/swear that I will faithfully perform the duties and discharge the functions of the office of ………………………… in accordance with the Constitution of the Democratic 8 Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.” c) at the same time has taken the oath in terms of Schedule 7 of the Constitution of Sri Lanka as provided in Article 157A of the Constitution which reads as follows; "I………………………………do solemnly declare and affirm/swear that I will uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka and that I will not, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka. 42. The Petitioners state that the 1st Respondent has taken four oaths, two in terms of Schedule 4 and two in terms of Schedule 7 of the Constitution of Sri Lanka in July 2021 to defend the Constitution of Sri Lanka and its Sovereignty while his oath of allegiance to defend the Constitution and the Sovereignty of United States of America was valid and in operation. Accordingly, his oaths or affirmations made for the purpose of assuming duties as a Member of Parliament and the Minister of Finance ab intio void, illegal, unlawful and no avail in law and it tantamount to the offence of perjury under the laws in USA and in Sri Lanka. 43. The Petitioners state that section 24 (1) of the Citizenship Act No. 18 of 1948 provides that; “Where the Minister is satisfied that a person who is a citizen of Sri Lanka by registration; …………… (f) has taken an oath or affirmation of, or made a declaration of, allegiance to a foreign country; or ………… 9 the Minister may by order declare that such person shall cease to be such a citizen, and thereupon the person in respect of whom the order is made shall cease to be a citizen of Sri Lanka by registration. 44. The Petitioners state that according to their information, the Minister in Charge of the subject of the Citizenship Act is either the President Gotabhaya Rajapaksa or the State Minister of Home Affairs Chamal Rajapaksa, both of whom are elder brothers of the 1st Respondent and not taking any action for the wrongdoing of him and instead encourage him to breach the statutory laws of the country and to derogate the Sovereignty of the country. 45. The Petitioners state that; a) if the 1st Respondent is not a citizen holding dual citizenship of Sri Lanka, he is debarred from taking oath or affirmation under the Constitution of Sri Lanka in view of the oath of allegiance he has taken under the laws of USA and accordingly, is purported oaths taken as a member of parliament and the Minister of Finance are ab initio void and illegal, b) if the 1st Respondent is a citizen holding dual citizenship of Sri Lanka, he is debarred from taking oath or affirmation under the Constitution of Sri Lanka in view of the oath of allegiance he has taken under the laws of USA, c) even if the 1st Respondent is a citizen holding dual citizenship of Sri Lanka, it is a citizenship by registration and his oath or affirmation taken under the Constitution of Sri Lanka is null and void and illegal, d) in any event even if the 1 st Respondent has obtained dual citizenship of Sri Lanka, by operation of law, his registration is ceased as he has taken an oath or affirmation of, or made a declaration of allegiance to a foreign country namely United States of America. 46. The Petitioners state that the 1st Respondent while having a conflict of interest in oaths or affirmation between USA and Sri Lanka and giving an oath of allegiance to USA and its Constitution by renouncing and abjuring the allegiance and fidelity to the 10 Sovereignty of Sri Lanka has acted illegally and in violation of the Constitution of Sri Lanka and the Citizenship Act. 47. The Petitioners state that the 1st Respondent by taking the said oath under the Constitution of Sri Lanka has violated the oath of allegiance that he has undertaken to defend the Constitution of USA too and punishable under the laws of USA. 48. The Petitioners state that with above mentioned conduct of the 1 st Respondent, it is crystal clear and beyond any doubt that the oath or affirmation made by the 1 st Respondent is null and void and his holding the office of a Member of Parliament and the portfolio of Minister of Finance is illegal and without an authority. Accordingly, he is disqualified in sitting and voting as a Member in the Parliament and holding any ministerial portfolio in the Cabinet of Ministers. 49. In the above circumstances, the Petitioners state that they are entitled in law to obtain the following mandates and orders from Your Lordships’ Courts; a) a declaration that the oath or affirmation given by the 1st Respondent as a Member of Parliament and as the Minister of Finance is null and void and no force in law, b) if the 1st Respondent has obtained dual citizenship of Sri Lanka, to make a declaration that his citizenship is ceased, c) a mandate in the nature of writ of quo warronto quashing and /or declaring that the appointment of the 1st Respondent as the Member of Parliament is void and illegal and he has no right to sit and vote in Parliament, d) a mandate in the nature of writ of quo warronto quashing and /or declaring that the appointment of the 1st Respondent as the Minister of Finance is void and illegal and he has no right to function in the office of the Minister of Finance, e) a mandate in the nature of writ of prohibition against 1 st Respondent prohibiting him of from sitting and voting in Parliament, f) a mandate in the nature of writ of prohibition against 1 st Respondent prohibiting him of from functioning as the Minister of Finance or holding any public office in the Republic of Sri Lanka, 11 50. The Petitioners state that in considering the arbitrary and illegal conduct of the 1 st Respondent who has already jeopardized the Sovereignty of the country by entering in to the said agreement, the entire Nation is at a risk of losing the Sovereignty of the country and the lives of the people are exposed to an danger and thereby the Petitioners are entitled in law to obtain an interim order restraining the 1st Respondent from sitting and voting in Parliament and holding or functioning of the office of Minister of Finance or any other public office until the final determination of this application. 51. The Petitioners state that unless Your Lordships’ Court issue interim orders as set out above, grave and irreparable loss and harm would be caused to the petitioners and the people of the country and Sovereignty will be severely threatened. 52. The Petitioners state that they have not invoked the jurisdiction of Your Lordships’ Court in respect of this matter previously. 53. The Petitioners state that they seek the permission of Your Lordships’ Court to tender any further documents if and when any necessity is arisen. Wherefore the Petitioners pray that Your Lordships’ Court be pleased to: a) issue notice on the Respondents, b) make a declaration that the oath or affirmation given by the 1st Respondent as a Member of Parliament is null and void and no force in law, c) make a declaration that the oath or affirmation given by the 1st Respondent as the Minister of Finance is null and void and no force in law, d) if the 1st Respondent has obtained dual citizenship of Sri Lanka, to make a declaration that his citizenship is ceased, e) issue a mandate in the nature of writ of quo warronto quashing and /or declaring that the appointment of the 1st Respondent as a Member of Parliament is void and illegal and he has no right to sit and vote in Parliament, f) issue a mandate in the nature of writ of quo warronto quashing and /or declaring that the appointment of the 1st Respondent as the Minister of Finance is void and illegal and he has no right to function in the office of the Minister of Finance, 12 g) issue a mandate in the nature of writ of prohibition against 1 st Respondent prohibiting him of from sitting and voting in Parliament, h) issue a mandate in the nature of writ of prohibition against 1 st Respondent prohibiting him from functioning as the Minister of Finance or holding any public office, i) issue an interim order restraining the 1st Respondent from sitting and voting in the Parliament until the final determination of this application, j) issue an interim order restraining the 1st Respondent from holding or functioning of the office of the Minister of Finance or any other public office until the final determination of this application, k) grant costs, and; l) such other and further reliefs as to Your Lordships’ Court shall seem meet. Attorney-at-Law for the Petitioner 13