In a Writ Application filed in the Supreme Court yesterday by the rights activist Nagananda Kodituwakku under the Corruption law, the Chief Justice Sripavan, former Chief Justices Shirani Bandaranayake, de facto Chief Justice Mohan Pieris and Sarath N. Silva have been charged for abuse of office of the Chief Justice to confer benefits or favour themselves or the Executive President which is an offence under Section 70 of the Bribery Act.
In this case, appearing in person, Public Interest Litigation Activist and Lawyer Nagananda Kodituwakku, challenges the failure of the Corruption Commission to initiate a credible and independent inquiry against the Chief Justice Sripavan and other Respondents reported to the Corruption Commission by him on 15th Feb 2016 for abusing the office of Chief Justice for committing an offence of Corruption.
Former President and now a Member of Parliament, Mahinda Rajapaksa who had been alleged to have benefited from the favours granted by the Chief Justice Shirani Bandaranayake, Sarath Silva and Mohan Pieris also has been cited as a Respondent in this case.
The Chief Justice Sripavan is charged for judicial corruption for intentionally ignoring and violating the Constitution to confer a favour to President Maitripala Sirisena, who had disregarded the National List duly published in the gazette under the law (Article 99A) by the Election Commissioner and instead appointed people loyal to him to the Parliament through the National List. It is alleged that this conduct by the Chief Justice is improper and amounts to commission of offence of Corruption under Section 70 of the Bribery act, which requires the Corruption Commission to conduct an independent inquiry under the law relating to Bribery and Corruption (Commission to Investigate Allegations of Bribery or Corruption Act No 19 of 1994).
The National List case filed by the Activist Nagananda after the flawed National List appointments were made, is now idling before the Supreme Court for a considerable period with no action taken to hear the case. Therefore, in the corruption case filed in the Supreme Court today, the Chief Justice is also accused for abusing the office of Chief Justice for violation of the Constitution (article 104), that requires the Supreme Court to hear and determine the National list case within two months after filing before the Court.
The activist states that invoking the provisions of Article 132 of the Constitution, he had requested the Chief Justice to appoint the full bench of the Supreme Court to hear the National List case, considering the national importance attached to the matter, Yet, denying the said request CJ Sripavan had ruled that in his opinion abuse of the National List to appoint candidates rejected by the people at the general election held in August lasts year, is not a matter of National Importance.
Activist challenges CJ’s ruling as absolutely unfair and unlawful and supports his case with plenty of statements made against the National List abuse by Election Commissioner, the Election Observers, the concerned learned citizens and many more, including a statement issued by the late Madulawe Sobitha Thero, the leading campaigner for Good Governance. This includes several editorials published in the leading national newspapers and electronic media, which have critically expressed their shock and dismay over the abuse of the National List provision to appoint rejected candidates.
Activist Nagananda states that failure on the part of the Chief Justice to uphold the rule of law, betraying the people’s judicial power in such an inappropriate manner is not expected from a person holding the office of the Chief Justice, who exercises the people’s judicial power purely on trust, unless he is motivated by improper and irrelevant considerations of conferring a benefit or favour to the incumbent Executive President, that clearly falls well within the offence of Corruption as defined in Section 70 of Bribery Act, which requires the Commission to initiate an independent and credible inquiry in terms of Section 4 of the Commission to Investigate Allegation of Bribery or Corruption Act, 3 No. 19 of 1994.
The activist therefore ‘objectively consider’ that the view expressed by the Chief Justice is arbitrary, unfair and unreasonable and apparently meant to confer a favour to the Executive President, thus directly violating the Constitution and Commonwealth Latimer House Principles concerning the Judiciary and argue that the Chief Justice is compromising of the independence and integrity of the Judiciary to the Executive.
The activist has also cited UN High Commissioner for Human Rights as a Respondent in this case as the government has co-sponsored the UN Resolution (a/HRC/RES/30/01) on 01st October 2015 (adopted at the General Assembly of the United Nations where the Government of Sri Lanka) giving an undertaking to the international community to conduct credible and independent investigations into all cases of Corruption and to establish a Justice System accountable to the people of Sri Lanka. The Bar Association which also has expressed its concerns about the state of Judiciary has also been cited as a respondent in this Corruption case.
Corruption charge against former de facto CJ Mohan Pieris
In this case Mohan Pieris is charged for corruption for pleading the Prime Minister in the presence of Justice Minister Wijedasa Rajapakse at Prime Minister’s official residence on 19th January 2015 offering unlawful favours, including his willingness to give judgements and make judicial appointments favouring the new Government, pleading that he may be allowed to occupy the office of Chief Justice uninterrupted. The activist, submitting the statement issued by the Prime Minister in Parliament on 30th Jan 2015, (published in the Hansard), condemning the conduct of Mohan Peiris about the abuse of office by the Chief Justice for improper purposes reveals that Mohan Peiris had offered to resign from the office of the Chief Justice when the Prime Minister rejected his favours with an offer to resign from office for a diplomatic posting in Switzerland instead.
The activist Nagananda states that this disgraceful act committed by Mohan Pieris was an insult to the peoples’ judicial power, the Supreme Court exercises purely on trust, causing the people to lose their trust in the Justice System as a whole. And further accuses Mohan Peiris’s unlawful pledge made to the Prime Minister seeking favours, amount to commission of a criminal offence of corruption, which clearly attracts the Section 70 of the Bribery Act, requiring the 1st Respondent to initiate a credible and independent investigation into the said act in terms of Section 4 of the Commission to Investigate Allegation of Bribery or Corruption Act, 3 No. 19 of 1994.
Criminal Charge against Chief Justice Shirani Bandranayake
The activist charges former CJ Shirani Bandaranayake (who had been unlawfully expelled from office by President Mahinda Rajapakse during his tenure as President) for Judicial corruption on the basis of her made-up resignation immediately being reinstalled in office of the Chief Justice on 29th Jan 2015. However, the activists states that apparently her recall was subject to clear orders from the Executive that the Chief Justice should step down from office within 24 hours. The activist citing the report published by Colombo Telegraph in this regard on 21-01-2016 under title “CJ Shirani just only for one day” states that, well before the 7th Respondent was recalled and reinstalled in the office the Colombo Telegraph accurately reported that she would be allowed to occupy the office of the Chief Justice only for 24 hours.
Activist states that after she resumed office of the Chief Justice on 29th Jan 2015, she attended her ceremonial farewell and made an announcement, that she was retiring from Office [at the age of 57 years, 8 years prior to the retirement age] on her own volition. The Petitioner states that the said statement was purportedly made, compromising the integrity of the judiciary in fulfilment of her undertaking given to the Executive. The activist Nagananda states that this wrongful act was purportedly done under moral duress, for benefits and retirement perks offered by the Executive, enabling it to appoint a person of its choice to the office of the Chief Justice and therefore, states that this gross betrayal of the judicial power of the people by the Chief Justice Shirani Bandaranayake for improper purposes amounts to compromising the integrity of the judiciary with the Executive for favours and also to a commission of an criminal offence of corruption that falls well within the definition of the Section 70 of Bribery Act, requiring the Corruption Commission to initiate a credible and independent inquiry into her conduct in terms of Section 4 of the Commission to Investigate Allegation of Bribery or Corruption Act, 3 No. 19 of 1994 which the Commission failed to perform despite a formal complaint was made by the activist with a statement of facts presented to the Commission by way of an affidavit about a prima facie case of corruption against Chief Justice Shirani Bandaranayake.
Criminal Charge against Chief Justice Sarath N Silva
On judicial corruption committed by former Chief Justice Sarath N Silva, the rights activist Nagananda states that on or about 18th Oct 2014, Sarath N Silva in an unprecedented move, openly confessed to the people of Sri Lanka and conceded the responsibility for abusing the office of the Chief Justice for perverting the cause of justice in the “Helping Hambantota” case, to favour President Mahinda after he was elected the Executive President in 2005.
Presenting evidence in this regard to the Court the activist Nagananda states that in a voluntary confession made to BBC Sinhala Service, Sarath N Silva had admitted delivering the judgement in the case favouring the then Executive President and states that this improper act by the then Chief Justice Sarath N Silva amounts to commission of a criminal offence of corruption under Section 70 of the Bribery Act, requiring the 1st Respondent to conduct a credible and independent investigation in terms of Section 4 of the ‘Commission to Investigate Allegation of Bribery or Corruption Act’, 3 No. 19 of 1994.
Rights activist Nagananda states that despite a plausible and prima facie case was presented with a statement of facts to the Commission by way of an affidavit the Corruption Commission failed to perform its duty and therefore requests the Supreme Court to issue a Writ of Mandamus on the Corruption Commission to initiate a credible and independent inquiry against all for Chief Justices under the Corruption Law.
The public interest litigation activist Nagananda states that according to the Latimer House Principles the Judges to be held accountable to the Constitution and to the law, which the Judges must apply honestly, independently and with integrity. The principles of judicial accountability and independence underpin the public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible Government relies. Yet in Sri Lanka the Judiciary has fatally failed to respect and honour its constitutional obligations to the people of Sri Lanka.
Request for a full bench to hear the Corruption case against the Judiciary
Considering the Judicial Corruption complained in his Petition reveals four Respondents, including the incumbent CJ have compromised their integrity with the Executive to confer favours and thereby violated their Constitutional obligations to the citizens of this country whose immutable judicial power exercised by them on trust, causing an enormous damage to the due observance of the Doctrine of Separation of Powers, effectively nullifying the Rule of Law and Democratic Governance in the Republic of Sri Lanka, activist Nagananda, in the Motion filed in the Court today has made a request to the Chief Justice, considering the General and Public Importance attached to this case that deal with the abuse of peopole’s Judicial power by the Respondents to appoint a Bench of 7 Judges to hear this case in terms of Article 132 (3) (iii) without the Chief Justice who is a Respondent in this case and Justice Eva Wanasundara who has abused the office and refused to release the Determination Record (SC/SD/02/1988) to activist Nagananda referred to in the Petition referred to in paragraph 51 of the Petition.