CA dismisses Diana Gamage’s citizenship case

The Court of Appeal decided yesterday (31) to dismiss with costs a writ petition filed by a social activist Oshala Herath requesting the issuance of a writ to revoke the position of State Minister Diana Gamage as a member of Parliament as she is a British citizen.

The three-judge Court of Appeal panel dismissed the petition in a two-to-one split decision. The petition was heard by the President of the Court of Appeal,

Nishshanka Bandula Karunaratne and the Judge of the Court of Appeal, Khema Swarnadhipa, and the majority decision of the bench was given, dismissing the petition. Court of Appeal Judge M.A.R.Marikkar gave a separate judgement.

Pronouncing the verdict, the Presiding judge, Nishshanka Bandula Karunaratne, stated that the petitioner,Oshala Herath, had submitted this petition based on a personal and hidden political agenda.

The Bench has ruled that this petition has been submitted maliciously to damage the reputation of the respondent State Minister Diana Gamage. The judgement states that the petitioner is not entitled to claim any relief as he has failed to prove his submissions. Also, the Bench has decided that this entire petition has been presented without sincerity. The Bench has pointed out that a petition regarding a matter of public importance should be presented without hidden political objectives and agenda.

The Bench also pointed out that if petitions are submitted for public welfare, it should not be unethical and profit should not be sought, and it has been emphasised that such petitions should be submitted with sincerity. The Bench has pointed out that the petition presented against State Minister Diana Gamage has been submitted on the basis of the petitioner’s personal interest and in accordance with the Supreme Court rules, sufficient evidence has not been presented to obtain any of the reliefs sought by him. The bench has indicated that there must be sufficient evidence to issue a writ of quo warranto questioning the parliamentary position of the respondent Diana Gamage as requested by the petitioner.

However, the petitioner has not submitted any such evidence and the decision has shown that he has only submitted the evidence given by the respondent Diana Gamage to the court in relation to a criminal case.

It has also been shown that the petitioner relied only on the statement made by the Deputy Immigration and Emigration Controller to the police.

According to the Evidence Ordinance Act, it is not enough to be accepted by the court, the Bench has mentioned. Also, the bench has ruled that the affidavits presented in this regard cannot be accepted according to the Ordinance.

The panel of judges has decided that only the facts presented by the respondent Diana Gamage in relation to the criminal case against her are not sufficient to decide the case in favour of the petitioner.

Also, it is stated in the judgment that the petitioner has failed to present sufficient evidence to prove the allegations against the respondent to grant the relief requested by the petitioner.

Therefore, the two-judge bench has ruled that the relief requested by the petitioner cannot be granted and the petition is dismissed subject to fees.

Appeal Court Judge M.A.R. Marikkar expressing a decision of difference mentioned that the petitioner should be accountable to the people as an MP. That she should be a transparent example to work as a Member of Parliament.

Judge Marikkar had decided that instead of challenging the position of the petitioner and the facts presented by him, the respondent Diana Gamage should prove that she is a Sri Lankan citizen.

The judgement states that respondent Diana Gamage has failed to prove why she is fit to hold the position of Member of Parliament. The judgement has shown that the petitioner has presented

a prima facie case and the respondent has failed to prove her citizenship as alleged. Therefore, Justice Marikkar has stated that he cannot agree with the decision of the Presiding Judge.

Accordingly, Justice Marikkar has ordered the issuance of a quo warranto writ ruling that the respondent Diana Gamage is not fit to hold the position of Parliament.

The judge also decided that the court fee related to the petition should be paid by the respondent Diana Gamage to petitioner Oshala Herath.

The petition was heard for the first time before the President of the Court of Appeal, Judge Nishshanka Bandula Karunaratne and the Judge of the Court of Appeal M.A.R. Marikkar.

Then, when the petition was called up prior to declaring its decision, the Bench mentioned that there was a split decision regarding this petition.

Accordingly, it was decided to consider the matter before a new panel of judges. Then the hearing of the petition was conducted for the second time in the presence of the President of the Court of Appeal and the Judges of the Court of Appeal Nishanka Bandula Karunaratne, M.A.R. Marikkar and Khema Swarnadhipati.

A date was set for the conclusion of the hearing and the announcement of the verdict.

These petitions had been submitted by Oshala Herath, a social activist.

State Minister Diana Gamage, the Immigration and Emigration Controller, Public Security Minister, General Secretary of the SJB Member of Parliament Ranjith Madduma Bandara, the Election Commission and its members, and the Secretary General of Parliament have been named as respondents in the petition. Attorney Hafeel Farisz represented the petitioner and President’s Counsel Shavindra Fernando represented State Minister Diana Gamage.

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