It is for the first time the readers are given an opportunity to learn this extra-ordinary moment of history during the run up to the Presidential Election 2015, and about the person who had fought a lone battle against all odds in order to safeguard the sovereign rights of the people.
President Rajapaksa’s dubious reference to the Supreme Court
The 18th amendment to the Constitution was initiated by President Mahinda Rajapaksa to remove the two-term restriction, enabling him to contest for a further term. However, the 18th amendment did not contain a retrospective provision, applying to a President already holding the second term in office. Based on this issue there was a serious and plausible argument that President Rajapaksa was not qualified to contest for a third term.
Suspicious reference to circumvent the disqualification
In this background President Rajapaksa was compelled to make a reference to the Supreme Court under the Article 129 of the Constitution, seeking its opinion on his qualifications for a third term. However, this reference was on a matter purely affecting President Rajapaksa in his ‘personal capacity’ and the Court, should not have allowed itself to become entangled in such affairs, compromising its dignity and integrity. In the absence of any ‘public importance’ attached to the two questions referred, the Court, being the guardian of the people’s judicial power, should have rejected the said reference.
However, the Supreme Court under the de facto CJ Mohan Pieris, accepted the reference and all judges agreeing expressed its opinion in a very servile language, empowering the President to contest for a third term.
Having had the said vital go-ahead, followed by the ‘divine advice’ given by his personal astrologer, Sumanadasa Abeygunawardena, President Rajapaksa went on to hold an early poll (two years ahead of the terms of office comes to an end) fixing 08th January 2015 for the Presidential Election. In the process the Commissioner of Elections accepted the nomination submitted by President Rajapaksa’s among others.
President’s eligibility challenged in Court
In this backdrop as a Public Interest litigation lawyer, I challenged President Rajapaksa’s nomination in the Court of Appeal by way of a Writ Application (CA/Writs/434/2014) on 16th December 2015. In this case the decision of the Election Commissioner, to accept President Mahinda Rajapaksa’s nominations was the focal issue. I sought a Writ of Certiorari to quash the Election Commissioner’s decision and also a Writ of Mandamus compelling the Election Commissioner to reject President Rajapaksa’s nomination. An interim relief was also sought to suspend the election until the final determination of the Writ Application.
In the Petition, I argued that the 18th Amendment to the Constitution did not apply to the sitting President. There was no expressed provision in it to apply it with retrospective effect, a mandatory requirement as set out in the Interpretation of Statute Law. It was further argued that the Constitution did not oblige the Court to give an opinion whenever a question was referred to it and the Court ought to say ‘No’ if the Court was asked to give an opinion on a question falling outside its jurisdiction. Yet, the de facto CJ Mohan Pieris virtually regarded that the Court was duty bound to give its opinion on the reference, whilst disregarding the pleas of citizens and civil rights movements, including the Bar Association of Sri Lanka, to make oral submissions.
I further pointed out that the Supreme Court had made a basic error in stating that its opinion given in advisory capacity, acting under Article 129 (1), carried the same weight given to a judgment pronounced by the Court. In the words of the Court, ‘it is our solemn duty to emphasize the fact that the effect of our opinion is no different to a judgment that we would pronounce in any one of our jurisdictions’. In this background it was argued that the opinion expressed with no hearing afforded is no ‘opinion’ at all, and it has no constitutional validity as the Court acted in breach of its constitutional duty to have a hearing on the reference before giving its opinion to the President.
Therefore, I argued that the opinion given by the Court was no different to a one given by the President’s personal legal advisers and it was invalid in law as the acceptance of the reference itself by a person (Mohan Pieris) appointed to the Office of the Chief Justice was unlawful, invariably making the decision taken on the reference ab initio void.
Breakdown of the Rule of Law at its peak and disappearance of the Writ Application
Then suddenly the Writ Application filed in Court was disappeared from the Court Registry. This was unthinkable in a Court System in any civilized country but it was not a surprise as the entire justice system was under the firm grip of the de facto Chief Justice, Mohan Pieris.
In the meantime the Court vacation was due on the 20th December 2014. Therefore, I was compelled to file a copy of the Petition along with a Motion dated 19th Dec 2014, citing the ‘National Importance’ of the Writ Application and urged permission from the President of the Court of Appeal, Vijith Malalgoda J, (also arbitrarily appointed to the Court by President Rajapaksa) to support the Writ Application during the Court Vacation either on 19th, 24th or 26th of December 2014. This however, was not acceded by the Court.
Revelations of de facto CJ Mohan Pieris conduct lead to disappearance of the Petition?
In the said motion filed in Court (19-12-2014), citing overwhelming evidence the lawlessness in the then Judiciary under de facto CJ Mohan Pieris was exposed. It was specifically mentioned that the disappearance of the Original Petition was a deliberate act, presumably committed by an ‘interested person’ working in collusion with some individuals in the Court system to prevent the supporting of the Writ Application, that exposed the gross abuse of Office by the de facto Chief Justice. Accepting the office of the Chief Justice, knowing fully well that there was no vacancy existing, was unlawful. Therefore the Oath (undertaking to be faithful to the Constitution and the Law) taken by him before the Executive President was FALSE and was tantamount to an ACT OF PERJURY, invariably making all Judicial acts performed by him ab initio void.
Sudden and unexpected change of events
By the end of December 2014, with the tide was changing against President Rajapaksa, a letter dated 31st Dec 2014 initiated by the Attorney General Department was ‘HAND DELIVERED’ at my chambers, during the Court Vacation, informing the receipt papers relating to the Writ Application.
Hidden and surreptitious move awarding a hearing
In the meantime, the Court on its own motion had fixed a date (02-01-2015) to support the Writ Application, which was originally reported missing by the Registry. It was fixed before Vijith Malalgoda J, the President of the Court of Appeal and Navaz J (also a nominee of President Rajapaksa). This was barely a week before the Presidential Election.
I observed the hidden motive behind this sudden change of events and I perceived that it was a desperate attempt to issue notice on the Respondents and to grant interim relief prayed for in the Petition, thereby suspending the Presidential Election, effectively throwing a lifeline to the President Rajapakse.
In this background several representatives from the common Presidential Candidate Maithripala Sirisena’s camp approached me, urging the withdrawal of the Writ Application. They claimed that in the event the election is suspended, President Rajapaksa would use his mighty power to crush their campaign and therefore, unless the said Writ Application is withdrawn the Attorney General would surely consented to grant the interim relief prayed for and accordingly the Court would suspend the election.
Withdrawing the Writ Application with due respect to the Will of the people
In this backdrop, I had to take an important career decision as a lawyer. After realizing the significance of the request made by the common candidate’s camp, I decided not to proceed with the case and did not attend the Court on 02nd January 2015. Instead filed a Motion in Court on the early hours of 02nd January 2015, notifying his decision to withdraw the Writ Application.
In the said Motion it was stated that the Attorney General had informed me through a letter dated 31st Dec 2014, ‘hand-delivered’ on the same date about the receipt the papers served on the Attorney General, which is not the normal practice and this strange behavior had aroused my suspicions.
In this backdrop I informed the Court that, since the filing of the Writ Application the public opinion on the President Rajapakse had been apparently eroded, and therefore, the Attorney General would have been instructed by the President Rajapaksa to concede the Interim Relief prayed for and thereby to suspend the holding of the Presidential Election, effectively throwing the President Rajapakse a life-line to remain in Office, against the Will of the People. Hence, having perceived the Petition filed in the ‘National Interest’ could defeat the very purpose of filing the same, if proceeded with it, the Court was informed that I was withdrawing the Writ Application with due respect to the Will of the people, allowing them to determine the fate of President Rajapaksa.
Accordingly, when the case was called on 02nd January 2015, the motion filed in Court for the withdrawal of the Writ Application was allowed by the Court with the following pronouncement. ‘The Petitioner, Nagananda Kodituwakku, Attorney-at-law, has filed papers before this Court to support but he has now filed a motion dated 02-01-2015 informing his desire to withdraw the documents filed before this Court. The Application for withdrawal is allowed and accordingly this application is dismissed’
I had reliably learnt that de facto Chief Justice Mohan Pieris was furious about the role that I played in exposing the abuse of office by Mohan Pieris during his tenure as the Attorney General and as the de facto Chief Justice. And I also had reliable information that there was a surreptitious move initiated by him to remove my name from the role of lawyers immediately after the election of President Rajapaksa for a third term.
Crucial situation forced the lawyer to leave the country on the Election Day
In this backdrop after casting my vote at the Election Day (08th Jan 2015), in the early morning, I left Sri Lanka to my adopted country, the UK and it was quite certain that there wouldn’t have been a chance for me to return to Colombo had President Rajapaksa secured a victory.
Who imitated the dubious letter from the Attorney General’s Department?
It is important to mention here that I had also challenged the abnormal behavior of the Attorney General, in this case. I wrote to the AG on 12th February 2015, requesting a clarification about the hand delivered letter dated 31st December 2014 originated by the AG’s Department. However, up until today the AG has failed to respond to his request.
With all these credible evidence placed before the people, I leaves it to the people to form their own judgment about the total breakdown of the Rule of Law in this country under President Rajapaksa regime, with the concurrence of some Judges in the Superior Court System, who are however, permitted to hold office in terms of Section 54 of the 19th Amendment to the Constitution.
Therefore, being a Lawyer who had waged a lone battle against the lawlessness in the Superior Court System, I wish to pose a question to the people, whether they can keep their trust and confidence in certain Judges who had betrayed their judicial power they exercise on trust. And I pose a further question to people to imagine ‘what would have been the situation in this country’ had the President Rajapaksa secured a lifeline to remain in office for a further period, in the event the Court granting the interim relief, suspending the election until the final determination of the Writ Application, pending a full hearing.