19 September, 2018

Blog

Chief Justice Sripavan Withdraws From National List Abuse Hearing

Chief Justice K. Sripavan who is charged for Judicial Corruption before the Corruption Commission and also before the Supreme Court (SC/Writs/03/2016) by the right activist and lawyer Nagananda Kodituwakku has withdrawn himself from the hearing of the National List abuse case (SC/Writs/05/2015). It is learnt that this case now drifting in the Supreme Court, without been listed for support, for a considerable period amidst stiff resistance from the Chief Justice.

Chief Justice K. Sripavan

Chief Justice K. Sripavan

Public Interest Rights Activist Nagananda Kodituwakku challenged the appointment of defeated candidates at the last General Election as MPs through the National List disregarding the National List published by the Election Commissioner (for the information of the voters before the Election was held in August last year). Activist Nagananda challenge that these appointments are totally unlawful as the clause inserted to the Article 99A of the Constitution in May 1988 – permitting the party secretaries to appoint rejected candidates through the National List – had been interpolated by fraudulent means by the then President J R Jayewardene, disregarding the due process stipulated in Chapter 12 of the Constitution. Producing the Bill approved by the Select Committee appointed by the Parliament to modify the franchise and election the activist Nagananda demonstrates that the said Bill does contain no such clause permitting the Party Secretaries to appoint rejected candidates as MPs.

In the Petition filed in Court the activist submits that according to the due process as setout in the Constitution, to amend or repeal it is mandatory to publish such bills for the information of the people in the Gazette at least two weeks before place in the Order paper of the Parliament. The Petitioner argues that any amendment that affects people’s sovereign rights protected in the Constitution, including the franchise guaranteed by Article 3, cannot be made law without obtaining people’s approval at a referendum.

Activist Nagananda argues that there was no such referendum held before enacting the disputed clause inserted to Article 99A. He argues that under Article 82(6) of the Constitution the said disputed clause enacted by unlawful means does not becomes a part of the Constitution and the Court cannot interpret or construe the said clause as valid provision of law and hence all appointments made on the recommendations of the UPFA Chairman President Sirisena, relying on the said clause have no force in law.

When the activist and lawyer, Nagananda challenged these appointments before the Supreme Court, under Article 132, he has requested the Chief Justice to appoint seven judges to hear this case, considering the National Importance of the issues involved. However Chief Justice Sripavan has ruled that according to his opinion, issues involved in the case lacks any National Importance and refused to appoint a full bench to hear the case.

Activist Nagananda challenges that CJ has abused the office apparently to facilitate the illegal appointments made through the National list by the UPFA Chairman, President Sirisena. The activist alleges that this abuse of office including the CJ’s decision that National List abuse is not a matter of National Importance has been performed to confer a favour or benefit to President Sirisena and that the said act is unlawful and amounts commission of an offence of corruption Article 70 of the Bribery Act. Accordingly the right activist has charged the CJ Sripavan for Judicial Corruption in a separate action filed in the Supreme Court (SC/Writs/03/2016) in which the CJ Sripavan is cited as a Respondent.

In this background the CJ has declined to appoint a Bench of 7 Judges and refused to hear the case and accused the right activist Nagananda for obstruction and interference of justice and called for observations from other judges in the Supreme Court to consider what action should be taken against the right activist Nagananda for suspension of his practice. In a separate Motion filed in Court the right activist has submitted to the Chief Justice that invoking of contempt proceedings against him for refusing to compromise his integrity is amounts to violation of the Principle 16 of the ‘United Nations Basic Principles on the Role of Lawyers’, which requires the Judiciary to ensure that all lawyers are able to perform their professional functions without intimidation, hindrance, harassment or improper interference’

Right activist Nagananda has already informed the CJ that the CJ deliberately delaying the hearing this case and thereby intentionally violates the relevant provision of law in the Constitution [Article 104H (1)], which requires the Supreme Court to hear and determine cases of this importance filed against the Election Commissioner within a matter of two months.

However, Colombo Telegraph observes that beneficiaries of this unfinished struggle are the rejected candidates appointed through the National List most of whom now enjoying Cabinet portfolios, including the office of the Deputy Speaker for a considerable period.

Print Friendly, PDF & Email

Latest comments

  • 19
    0

    Chief Justice K. Sripavan,

    RE:Chief Justice Sripavan Withdraws From National List Abuse Hearing

    “Chief Justice K. Sripavan who is charged for Judicial Corruption before the Corruption Commission and also before the Supreme Court (SC/Writs/03/2016) by the right activist and lawyer Nagananda Kodituwakku has withdrawn himself from the hearing of the National List abuse case (SC/Writs/05/2015). It is learnt that this case now drifting in the Supreme Court, without been listed for support, for a considerable period amidst stiff resistance from the Chief Justice”

    Tribal Leaders of the same tribe do not want to hear cases involving crooks of the same tribe, as they all are related.

    We Need foreign Judges.

    Yes, Foreign Judges. Can UNHRC Help?

    • 6
      1

      amarasiri

      i don’t think foreign judges are the answer.we have to have the chief justice and the other judges appointed by an independent process where the president or any other parliamentarian should not have anything to do with it.Otherwise it will be always the same story of them singing for their supper and eternal loyalty to those that appointed them.

      I suggest that the bar association elects the judges including the chief justice and also the magistrates and also decisions like the transfers etc.When the politicians don’t like a magistrate or judge they get them transferred.In the meantime i think sripevan should resign.He knows the law but is not fit to be a CJ because he is a coward without a backbone.

      in the new constitution being formulated the guaranteeing the independence of the judiciary is very important and i hope nagananda will see to that.

      Naga,please see that there is a permanent solution to this so that the people and the CJ’s will not have continously joust with each other.After all we the the people are paying for these bloody politicians and judges aren’t we?So the new constitution should take into consideration that important long forgotten factor and incorporate what we want,not what the politicians want.We want maximum 100 peoples representatives at the central government level,max 50 at the provincial level and max 5 at the local government level.

      So naga,can you please keep an eye on this new constitution and see that the number of politicians and the appointment of the judiciary is according to the people’s wishes.Pleas use all legal avenues to stop the new constitution unless these are incorporated in it.Once the constitution is adopted we are buggered and it will be the same old story and ride the people will go in.

      • 2
        0

        should be 50 at local government level,not 5.

        total 200 politicains at the 3 levels of government.Quality is more important than quantity.All candidates must be vetted first by a peoples committee comprising of non political eminent professionals,and their candidature aproved by the commitee before they can become candidates.

      • 7
        1

        shankar

        “i don’t think foreign judges are the answer.we have to have the chief justice and the other judges appointed by an independent process where the president or any other parliamentarian should not have anything to do with it.”

        Yes, the Judges can be independently appointed, but it has to be outside the Tribe, Foreigners, Recommended by UN (Hopefully, not corrupt), so that they are truly independent. Anybody from the Tribe will be tainted and will have some kind of relationship with the others in the tribe.

        After all don’t we hire independent consultants and accountants who are foreigners? Even Air Lanka, Sri Lankan Airlines had a foreign CEO, and after a local guy, the Brother in Law of MaRa was appointed, it was all downhill.

        • 7
          1

          amarasiri

          i don’t mind foreign CJ say from UK,or a foreign police chief too from a place like singapore,i’am sure we will benefit,but i doubt that we have the capacity to attract foreign talent.Good talent will always think twice before relocating with their family here.

      • 5
        0

        BA is also not the answer. All public appointments should be made by independent bodied PSC and JSC, without any influences, but strictly on merit and character. No appointments to higher positions be made by politicians. BA should keep watch on the performances of the judgements.

        • 0
          0

          but adrian,i don’t think we have these things at the moment do we?hat do we do in the meantime for this serious issue.I was thinking that lawyers are the best judges for such appointments and the bar association can conduct an election among lawyers for their feed back on the best candidates for chief justice,judges and magistrates ets.people in that industry will know who are right person for the right job,woudn’t they?

    • 4
      0

      If you are naïve enough to trust foreign judges/invetigators, then, look at the reports without verifiable sources, produced by some of them, like Dharusman, Sooka, Pillai etc.

      • 1
        0

        //produced by some of them, like Dharusman, Sooka, Pillai etc. //

        Can we talk about Maxwell Paranagama, Tissa Vitharana and Chitta Ranjan de Silva?

        /look at the reports without verifiable sources/

        Let them have full access to the system and provide necessary information. If there is nothing to hide, we could bring third-party judges.

        Lots of people complained that Pakistani umpires were biassed and all their victories in Pakistan were tainted. Imran Khan was sick of it, and invited umpires from UK to officiate in their home series against India (the start of the ‘neutral umpires’ in cricket).

        If we dare, let the international judges in! Otherwise, we can call ourselves cheats, criminals or chickens.

        • 0
          1

          Cricket Umpires and Foreign Judges to sit on a court of law are matters, poles apart. Having foreign observers and advisors, like at General Elections is the closest one could tolerate foreign involvement. As mentioned in my previous comments, Foreign Investigators and Judges, prepare reports to suit their agenda and that is why they do not divulge the names of so called “witnesses”. If they are that dodgy, then, why have them? Foreign Judges are a no! no! for a sovereign nation like Sri Lanka, which has a well established Judiciary. One might say local politicians could influence local judges, but on the same token we know that Foreign politicians could influence foreign judges.

    • 0
      0

      The three prong style constitutions give the power to EP, Parliament and the CJ (Supreme Court). That is how the check and balances of the incumbent government activities are balanced.

      Bar is not a people’s representative. It cannot select the third prong of the government. Handing over of people’s right to bring the Justices and CJs to Bar is like allowing the educated people use the enfranchisement. It will not be universal. That was the one suggested in 1933 in front of Donomore. But, it cannot be a bad idea under the current circumstances of Lankawe.

      Foreign Judges and lawyers are a solution. In minority right violations, as it was purposely done by the majority governments, it was suggested as better solution there. Under normal circumstances, it is not meant for perpetual, long administration. People have to solve everything. But this has failed for 65 years after Britain left.

      The situation here is, universal franchise is not working for our mother Lion, Wildlife Sanctuary Lankawe. Educated people has been utter unreliable in Lankawe, too. They are no different from the CT’s PhDs. Getting foreign Judges and Lawyers for general law administration is going leave many other aspects not covered.

      When the question of fiancé management question arose, the current prime minister has handed over Hambantota airport and seaport to China. Previous government when it could not manage the information systems handed over the Nuraicholai and Port City to China. Those were colossal failure of the two successive governments. The only cost this time for the government is 1000 acres of additional land as the indemnity for the lost interest on the Chinese loans. That is a solution for economical mismanagements, like the way foreign lawyers and judges to activist Nagananda’ problems.

      But I am not happy with handing over anything to China. Even the Hong Kong did not want to go from Britain to China. Taiwan is still resisting. They are Chinese. When Chinese refuse to go under China, it is not a good idea let Lankawe to under China. Again Lankan universal franchise cannot take decision on this. It is better to not to go for educated decision for under whom Lanka should go. Because it will be decided by CT class PhDs.
      Hong Kong was under Britain, but did not like to go under China. So, that means, to some extent that Chinese preferred Britain to China. We were happy and prosperous under Britain. So why we not go under Britain back again instead of all these peace meals decisions of Foreign Judges and lawyers for activist Nagananda, China to take over Colombo Ports and Hambantota Pots and so forth?

  • 6
    0

    Rejected candidates being given portfolios has not happened in any democratic country.
    Attempting to punish an activist/lawyer who wishes seven supreme court judges to rule on this, is shameful.
    Our judiciary has descended to low levels, merely to remain in office.

  • 3
    0

    CJ is pre-juice on his views, the reason is unknown, what I feel is he is not that enough of competent on his law in courts or he is poor at legal education since in long time in chambers of Supreme courts without updating his knowledge of new trends of democracy in
    Sri lanka as well as world.

    The problem is people who are in Sri Lankan that legal field out of skilly and updated that new developments in many parts in world ,including courts verdicts been not well study of sovereignty of rule of law by Sivapaln of CJ and others as well.

    Buys and ignorance some elites ideologies of conservatism cannot be correct by their the right thinking ideas. It take long years to see democratic process that eliminated their foolishness.

    What I feel is the relevant an issue on national list members is nationally important ,why is that is key of sovereignty of voters rights of people of Sri Lankan.

    I do not know this paramount issues is not taken by Sivapalan of CJ .

    Some thing wrong of his misreading of political sovereignty of voted to elected chambers by will of people has been denied by current CJ.
    Our democracy has wrong and major deficit in court of law and system of law handle by wrong people who are in power by hook or crook.

    This need be address by shake of sovereignty and democracy of Island by New democratic movement in country.

    The “Democracy” of MS CBK and Ranil W… has destroy that appointment of wrong person in right place.

  • 5
    0

    Justice K Sripavan’s appointment itself was illegal. The removal of his the former crooked judge was illegal. The executive cannot remove the chief justice without following the procedure set down in law. even if the appointment itself was arguably invalid, it was never determined by a Court or Parliament to be so.

  • 4
    0

    Lawyer activist Mr. Nagananda is correct in invoking Principle16 of the ‘UN Bssic Princple on the role of Lawyers’ which requires the judiciary to ensure that all lawyers are able to perform their professional functions without intimidation, hinderence, harassment or improper interference especially in a situation where the CJ has called for views from other judges as to what action can be taken against Mr. Nagananda to suspend his practice.
    The other judges are now in a quandary and the. CJ is twiddling his thumbs while the date for the SC’to make a decision in such an impotant case draws close.
    The only alternative is a foreign judge by the UN to clear this imbroglio.

  • 2
    0

    Nagananda’s original petition to the Supreme Court challenging the legality of the passage of the Constitutional Amendment relating to appointment of National List MPs is certainly a case of national importance because the petition opens up an important Sri Lankan Constitutional issue, namely, whether the Supreme Court can go behind and look into how an act of the Sri Lankan Parliament had been passed. The present Sri Lankan Constitution lays down that an an act of Parliament once certified by the Speaker as having been lawfully passed cannot thereafter be questioned by the Supreme Court or by any othercourt. SL Parliament like many other parliaments under the Westminister system is sovereign and its acts cannot be questioned.

    However, Nagananda alleges fraud in the enactment of the Constitutional Amendment which go to the denial of people’s sovereign right. It is no doubt a question of national importance which requires to be heard and decided by a seven member bench Supreme Court.

    On what basis did Chief Justice Sripavan came to the decision that it is not a question of national importance? Did he alone arrive at this decision or were other SC judges consulted in arriving at this decision?

    As a lawyer, Nagananda had every right to ask for the constitution of a seven member bench of the supreme court which in his opinion was being asked to decide on a question of national question. CJ Sripavan not just rejected the request but had accused Nagananda of obstruction and interference with the judicial process. If that is the case no Sri Lankan lawyer will be able to litigate before the SL courts.

    For CJ Sripavan, withdrawing from the case is the right thing to do. He should now without any further delay go ahead and list the case by constituting a seven justices bench to hear and decide on this case.

    • 0
      0

      It is not exactly a case of the SC going behind Parliament to look at how how it passed an act.
      It is if the Clause inserted in Article 99 A of the constitution in May 1988 enabling party secretaries to nominate defeated candidates via the National List to Parliament is illegal because the process stipulated in Chapeter 12 of the constitution was disregarded.
      All that the SC had to adjudicate was on that issue and come to a decision.
      The fall out from that decision would be anybody’s guess.
      Yes, the present constitution lays down that once an act of Parliament is passed and certified by the speaker it cannot be questioned by the SC or any other court.
      So is there no course of action to remedy a flaw in an act of Parliament which affects the sovereign rights of the people on whose behalf the constitution was enacted?

  • 0
    1

    This CJ Sri Pavan [Edited out]

  • 4
    0

    Is the Chief Justice playing politics by trying to, not only to dismiss this nationally important case, but also to punish the Petitioner. Is this justice?

    • 1
      0

      CJ Sripawan is a weak person. He danced to the tune of Mahinda Rajapakse when he was in power.They were in the same batch at law college.That’s why you will see almost all cases filed by Rajapaksa clan were listed before Sripawan and Eva Wanasundera.The bond continues even after regime change.

  • 1
    0

    We have a new Acting CJ . May be she will do the right thing and get this case (SC/Writs/05/2015). listed.

  • 1
    2

    This Sri Pavan tried everything he can to harass and intimidate Nagananda. He even invited the Bar Association President to come and observe the proceedings hoping that the Bar Association will ban Nagananda from practising. Sri Pavan succumbed as there is tremendous public support for Nagananda. This racist, rogue and biased judge, Sri Pavan, must forthwith resign or sacked.

    • 0
      0

      Sobo the messiah has spoken. Lets all follow. Over to you Sirisena

  • 3
    0

    Sobo

    “This racist, rogue and biased judge, Sri Pavan, must forthwith resign or sacked. “

    Are you sure you commenting on the right person?

    Sri Pavan and Sarath N Silva are two different people.

    • 1
      0

      Sripavan was stooge of Sarath Silva

  • 0
    0

    Sri Pavan[Edited out]

  • 0
    0

    Shame on you Siripavan for lamenting on the brilliant lawyer Nagananda Kodithuwakku

Leave A Comment

Comments should not exceed 300 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically shut off on articles after 10 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.