What Professor Hoole Stated About Gotabaya Rajapaksa's US Citizenship
The issue of Gotabaya Rajapaksa's citizenship has been one of the most contentious legal and political questions in Sri Lanka's recent history. At the heart of this controversy lies an affidavit submitted to the Supreme Court by Professor Ratnajeevan Hoole, a former member of the Election Commission. His sworn testimony provides a detailed and damning account of how he believes the constitutional process was undermined to allow a dual citizen to contest the 2019 Presidential Election. This article examines the key revelations from Professor Hoole's affidavit and their implications for the rule of law in Sri Lanka.
The Constitutional Disqualification
In his affidavit dated June 9, 2022, Professor Hoole made a clear and unequivocal assertion: Gotabaya Rajapaksa was not qualified to contest the 2019 Presidential Election because he was a citizen of the United States at the time of his nomination. Under Article 91(1)(d)(xiii) of the Sri Lankan Constitution, read with Article 92(b), any person who holds citizenship of another country is disqualified from being elected as President.
Professor Hoole noted that there were two dual citizens among the prospective candidates in 2019: Gotabaya Rajapaksa, who held American citizenship, and Nagananda Kodituwakku, who held British citizenship. While Mr. Kodituwakku tendered a certificate of renunciation of his British citizenship on October 8, 2019, Mr. Rajapaksa never produced a certificate of renunciation of his US citizenship to the Election Commission. Instead, he submitted only an affidavit in lieu of such a certificate, which Professor Hoole characterizes as a deceptive act intended to mislead both the Commission and the Sri Lankan public.
The Election Commission's Failure
Perhaps the most troubling aspect of Professor Hoole's affidavit is his account of how the Election Commission handled the matter. He states that he personally suggested to the other commissioners that they investigate the dual citizenship question concerning Gotabaya Rajapaksa. However, he claims that the other commissioners actively discouraged him from pursuing this inquiry. Their reasoning, as Professor Hoole recounts, was that it was not the Commission's responsibility to investigate but rather the duty of other candidates to raise objections.
Under Article 104(2)(b) of the Constitution, all decisions of the Election Commission must be made by majority vote. Professor Hoole reveals that he was effectively compelled not to raise the issue on Nomination Day because his fellow commissioners refused to support an inquiry. This raises serious questions about whether the Commission fulfilled its constitutional mandate to guarantee a free and fair election.
The Duty of the Election Commission
Professor Hoole emphasizes that the Election Commission is not a passive body waiting for objections from candidates. He argues that in terms of Article 103(2) of the Constitution, the Commission has an affirmative duty to guarantee free and fair elections, which is an entrenched provision of the Constitution under Article 4(e). He further notes that the members of the Election Commission are deemed public officers who have sworn a constitutional oath to defend the Constitution, the rule of law, and the rights of citizens.
The Commission, according to Professor Hoole, was mandated by law to examine the authenticity of all documents submitted by all candidates. This mandate was not conditional upon objections being filed by rival candidates. The Commission had a constitutional duty to act in the public interest and to ensure that the sovereignty vested in the people—including the franchise to elect the Executive President—was not compromised.
The Timing of Renunciation
One of the most critical revelations in Professor Hoole's affidavit relates to the timing of Gotabaya Rajapaksa's renunciation of US citizenship. Professor Hoole states that the US State Department's Federal Register has confirmed that Gotabaya Rajapaksa's US citizenship was revoked only in the first quarter of 2020, with a formal certificate issued on August 5, 2020.
This is a matter of profound significance. The Presidential Election was held on November 16, 2019. If Mr. Rajapaksa was still a US citizen at the time of the election and at the time of his nomination on October 7, 2019, then he was constitutionally disqualified from contesting. The fact that his US citizenship was not renounced until months after the election confirms, in Professor Hoole's words, that he was a US citizen at the time of tendering his nomination.
The Political Context
Professor Hoole's affidavit also sheds light on the political maneuvering surrounding the 2019 election. He states that there were 35 candidates who had made the deposit to contest, including the 10th Respondent, who was the former Speaker and a brother of former President Mahinda Rajapaksa. It had become common knowledge, according to Professor Hoole, that this individual was ready to contest in case Gotabaya Rajapaksa's nomination was challenged and he was forced to withdraw due to the dual citizenship issue.
This suggests a contingency plan was already in place. The Rajapaksa family was prepared to ensure that someone from their camp would remain in the race even if Gotabaya's candidacy was invalidated. The reluctance of the Election Commission to investigate the matter effectively allowed this plan to succeed without ever being tested.
The Legal Consequences
The legal implications of Professor Hoole's affidavit are far-reaching. If Gotabaya Rajapaksa was indeed disqualified from contesting the election, then his entire presidency could be considered unconstitutional. The affidavit was submitted in support of a petition challenging the validity of the election, and Professor Hoole's testimony provides crucial evidence for that challenge.
Moreover, the affidavit raises questions about the legality of actions taken during his presidency. If the president himself was unlawfully in office, any decisions, appointments, or legislation enacted during his tenure could potentially be subject to legal challenge.
Professor Hoole's affidavit presents a compelling case that the constitutional process was subverted in the 2019 Presidential Election. His testimony reveals that Gotabaya Rajapaksa was a US citizen when he contested, that the Election Commission failed in its duty to investigate the matter, and that the candidate submitted a false declaration to mislead the Commission and the public.
The affidavit is a sobering reminder of the fragility of democratic institutions and the importance of constitutional safeguards. It underscores the need for independent institutions that are willing to uphold the rule of law, even in the face of political pressure. As Sri Lanka continues its journey towards justice and accountability, the revelations in Professor Hoole's affidavit remain a critical piece of the puzzle that must not be forgotten.
The full truth of what happened in 2019 must be uncovered, and those who undermined the Constitution must be held accountable. Only then can Sri Lanka truly move forward.