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and also before the Supreme Court (SC/Writs/03/2016) by the right activist and lawyer Nagananda Kodituwakku has withdrawn himself from the hearing of the National List abuse case (SC/Writs/05/2015).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.
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.