Chief Justice K. Sripavan accused one of the lawyers fighting the National List abuse in the Supreme Court for obstruction of justice and called the Bar Association to make its observations on the Motion filed in Court by the lawyer, Colombo Telegraph learns.
Chief Justice K. Sripavan
On the National List abuse challenged in the Supreme Court by the Counsel Nagananda Kodituwakku with a request made for appointment of a full bench, considering the national importance of the issue, the Chief Justice has ruled that the National List abuse is not a nation issue and therefore refused the request made for a hearing before the full bench of the Supreme Court.
Further to the Chief Justice’s said ruling the Counsel had filed a further Motion informing the Chief Justice that from the said ruling the Chief Justice has displayed abuse of discretion vested in the office of the Chief Justice, and his bias towards the Executive, despite credible evidence produced in the case that the rejected candidates through the National List (Article 99A) has been enacted by fraudulent means, bypassing the process established by law (affording people an opportunity to challenge the bill which has never been published in the gazette before it was referred to the Supreme Court for determination of constitutionality of the bill), and that in the said fraud all there organs of the government (Legislature, Executive and Judiciary) were involved. Therefore the said clause (Article 99A) shall not be construed as a valid law in terms of the Article 82 (6) of the Constitution.
Therefore, the Counsel Nagananda Kodituwakku had informed the Court that Chief Justice’s impugned ruling is obviously per incuriam and it has effectively disqualified the Chief Justice K. Sripavan from hearing the case and hense requested that the case be fixed for support before a fuller bench of the Supreme Court sans the Chief Justice
The Chief Justice has considered the stand taken by the Counsel Nagananda Kodituwakku amounts to obstruction of justice and had fixed the case for 26th Jan 2016 with direction given to the Bar Association to attend the hearing to make its observations on the content on the Motion filed in Court by the Counsel.
It is important to note that Supreme Court had already violated the law concerning this ase as it has failed to hear and determine the case, filed on 13th Oct 2015, within the stipulated time frame of two months from filing the case as provided in Article 104 of the Constitution.
On the other hand, failure to dispense justice as required by law, has permitted those rejected by the people but elected to the Parliament through the National list, firmly establish their roots in the governance with some appointed to the office of Cabinet of Ministers and to hold many other key profiles in the government.
Naga / December 25, 2015
Chief Justice Sripavan by his ruling that the National List abuse is not a nation issue has narrowly restricted the cases in which a full bench of the Supreme Court is constituted.
I do not know what is Chief Justice Sripavan’s interpretation of a ‘nation issue’. I also have difficulty in understanding on what basis did Chief Justice Sripavan considered that the counsel Nagananda Kodituwakku’s further motion amounts to obstruction of justice.
It is correct that Sri Lankan Constitution lays down that an act of the Parliament cannot be questioned by a court and therefore the Supreme Court cannot go behind to look how a particular piece of legislation was enacted. However, Counsel Nagananda Kodituwakku is raising a novel issue and should be given due consideration by the Supreme Court. The Counsel’s argument here is that Article 99A of the Constitution has been enacted by fraudulent means, bypassing the process established by law (affording people an opportunity to challenge the bill which has never been published in the gazette before it was referred to the Supreme Court for determination of constitutionality of the bill), and that in the said fraud all there organs of the government (Legislature, Executive and Judiciary) were involved.
This is certainly an issue that merits consideration by a full bench of the Supreme Court. I have not seen Chief Justice Sripavan’s reasoning for his determination that it not a ‘nation issue’. It will be interesting to see his reasoning.
However, I am of the opinion that Chief Justice Sripavan appears to have unnecessarily narrowed the scope to ‘nation issue’. If the issue raised before the Supreme Court is of public importance involving the abuse of people’s franchise it would certainly merit a review by a full bench of the Supreme Court.
In contrast when you look at the Australian High Court, which is the highest Australian court, it appoints a full bench in “cases which involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven Justices if they are available to sit”.
Counsel Kodithuwakku’s case before the Sri Lankan Supreme Court besides being of major public importance involves the interpretation of the constitution. His case certainly deserves to be heard and decided by a full bench of the Supreme Court.
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Ananda Markalanda / December 25, 2015
Obstruction of Justice may consist of any attempt to hinder the discovery, apprehension, conviction or punishment of anyone who has committed a crime. The acts by which justice is obstructed may include bribery, murder, intimidation, and the use of physical force against witnesses, law enforcement officers or court officials. The purpose may be to influence, delay or prevent the communication of information to law enforcement officers; to influence, delay or prevent court testimony; to alter or destroy evidence; or to evade a subpoena or similar court process. –There are none here.
The misleading conduct of CJ to delay and state ‘obstruction of justice’ is so general that it can be used to fit many different situations, but not here. Here it’s CJ hiding behind the veil of ignorance or vested interests.
It needs much appreciation as required in this case to determine for the first time the extent to which the constitutional protections of voters to be recognized and press limitations of as stated in the constitution and to award redress in action brought by a public interest attorney against official conduct.
The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, is not clearly an obstruction but is essential to the security of the Republic, is also a fundamental principle of our constitutional system. The Constitution has provided for an independent judiciary and guaranteed fundamental rights, providing for any aggrieved person to invoke the Supreme Court for any violation of fundamental rights.
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shankar / December 25, 2015
waste of taxpayers money on this case if sripavan is hearing it.The verdict is a foregone conclusion.When he is appointed by maithri how can he bite the hand that fed him.
If the judiciary is to be truly independent it should have nothing to do with the executive.The judiciary itself should organise itself into a body that appoints the CJ and the supreme court judges etc.All the lawyers and other professional bodies too should have a vote in it.
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Srinath.gunaratne / December 26, 2015
If this is not a national issue, we like to hear Siripawans arguments.
CJ should be elected by people not the President.
Great defending Naga!
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justice / December 25, 2015
Only in Sri Lanka, those rejected by the people become ministers.
Also, corrupt persons become ministers.
Also, a man jailed by the Supreme Court becomes a minister.
Also, any citizen labelled as an “LTTE supporter” is jailed without being tried in a court of law.
Is the Chief Justice trying to cement his survival – having been conferred his post by sheer seniority only, unlike in other democracies?
Why is he afraid of a fuller bench to consider this important political question?
What has the Bar Association got to do with legal process of the Supreme Court?
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Uthungan / December 26, 2015
“What has the BASL got to do with legal process of the Supreme Court?
Exactly!
Why had the CJ not ventured an opinion why he holds that the National List is not a Nation Issue?
What is a Nation?
If a Nation consists of it’s people as a whole it follows that they are Sovereigin. It is correctly stated as such in the Constitution.
Then does it not follow that the people and nation are one and the same.
If that is so, then the Nanal List is a Nation issue I.e. a people issue.
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Uthungan / December 25, 2015
This is going to be an interesting point of discourse on a point of law where CJ has called the BASL to make it’s observations on the issue of abuse of the National List.
The issue here is why didn’t the CJ not give adequate reasons for making his decision when the case was filed in October 2015 by the Counsel Kodituwakku and postpone it to 26th January 2016 which is outside the time frame of two months under Article 104 of the Constitution?
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Sinhala_Man / December 25, 2015
Can we, the people who worked so hard to have this government elected, really spend all our time checking on what our rulers are doing?
Do we really have to now get to know who Nagananda Kodituwakku is, and who Chief Justice K. Sripavan is? We were really happy when Mr Sripavan was appointed as head of the judiciary, but was he appointed merely because we wanted to prove that a minority man could be elevated to very high position? It is well-known that such a man, even if he is excellent, is not in the best position to stand up to pressure.
What about Nagananda Kodituwakku? He has written many articles on Colombo Telegraph, and I clicked on his name (appearing in blue), and got taken back to a number of blogs; some written by him, some referring to cases filed by him in courts. I’m not going to read them all, but I have looked at this:
https://www.colombotelegraph.com/index.php/judiciary-refuses-to-intervene-against-corrupt-executive-and-legislature/
But having read that, I realised that these blogs are not, rather confusingly, arranged in chronological order. This seems to be the earliest dated thing that we read about Mr Kodituwakku. He appears to have supported the re-election of Mahinda Rajapaksa in 2009, and then to have been disillusioned.
https://www.colombotelegraph.com/index.php/rs-619-million-public-funds-fraud-case-against-mohan-peiris-and-pb-jayasundara-the-lawyer-was-threatened/
We want to keep trusting the leaders of this government, and the Chief Justice – together with the rest of the Judicial System. We realise well enough that Mr Kodituwakku could well be a lawyer who is trying to fast lane his way to the top, but the half hour that I have spent looking at these things suggests otherwise.
This is as much time as I will spend on this matter. We elect a government, and trust that they will play fair. We cannot ignore the ethnic undertones to this case, either. If I have misgivings about these facts that I have collated, how much worse would a minority man fear that he is going to have anything like justice? Clearly, the Tamil Diaspora expects too much if they want Gotabhaya Rajapaksa to be hanged on orders of the Hague.
Obviously the Diaspora feel that what they are asking for is Justice, and not vengeance; but we, Sinhalese, feel that they ought to compromise because we are confident of a clean future. Can we keep claiming that in the face of these happenings?
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Sinhala_Man / December 25, 2015
Sorry about this. My computer (which works on a dongle) seemed to get disconnected, and I was mad thinking that this had not got posted. But I thought the subject important, and wrote it all out again. Now I find that both have got posted, but in the second, I seem to have given more details.
Sorry, CT, and readers.
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Sinhala_Man / December 25, 2015
What can I, as a member of the public make of this story?
On the one hand, we worked hard to elect this “new” government, and we want to believe that we will get good governance now. We want to believe that we have a Judicial System that we can trust. We don’t want to spend the rest of our lives monitoring all this. I was happy that Mr K. Sripavan was appointed Chief Justice. But was he appointed merely to show the world that a minority man would be appointed, in this country, to one of the highest offices? It is well known that such a man, however good and honourable, is not able to make the most courageous decisions.
Who is this Mr Nagananda Kodituwakku? Is he a man who is fast laneing his way to fame, or is he a man who is genuinely fighting for the right things?
He espouses causes that are “popular”, but rightly so.
https://www.colombotelegraph.com/index.php/abuse-of-tax-fraud-permits-by-mps-ministers-supreme-court-allows-bringing-new-evidence/
He has been the author of one of the few articles written in Sinhalese. This is very important. We must write so as to reach those who are comfortable only reading Sinhalese or Tamil: and he was doing this when the former regime was in office:
https://www.colombotelegraph.com/index.php/nagananda-kodituwakku-may-11-2014/
Confusingly, these blogs have not been arranged in chronological order. This appears to be the earliest reference that I can find to this Mr Kodituwakku, on this site.
https://www.colombotelegraph.com/index.php/rs-619-million-public-funds-fraud-case-against-mohan-peiris-and-pb-jayasundara-the-lawyer-was-threatened/
He appears to have supported the election of Mahinda Rajapaksa in 2009, but like many others appears to have got disilluioned with what began to happen after that.
I take the further step of google-searching Nagananda Kodituwakku. He doesn’t really appear on YouTube, but there is this FaceBook thing where he has approved a comment made by a guy whom I know, Suresh Marcandan:
https://web.facebook.com/Dailymirroronline/photos/a.10150134122451525.279107.129843276524/10152563044661525/?type=1&theater
This latest spat of his appears to concern the Independence of the Judiciary. This may be the most important issue for us right now. The Tamil Diaspora wants Gotabhaya Rajapaksa hanged on the orders of The Hague. They say that they want Justice. We, the “moderate” Sinhalese, feel that they ought to accept a compromise, because what is important is not vengeance but a clean future. But the issues now at hand concern the present and the future. If we have misgivings now, can we expect any Tamils to have faith in the efforts of the present administration to deliver justice.
I have spent an hour on this. We did not elect a government thinking it would be necessary to monitor all its actions. A few of us may still spend a little time on it, but not the average citizen. When things get outrageous, the mobs get on to the streets, and we all lose – even the thugs, ultimately. Many of us are still very much on the side of Messers Sirisena and Wickremasinghe, and I feel desperately sorry for Chief Justice Sripavan.
But can we live with this?
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Mallaiyuran / December 25, 2015
This is only a theoretical or cosmetic issue. Activist Kodituwakku is holding on a legal point. Tamils can not go with him. They have on the board some lost candidates very badly needed. For them to bring a person for the 90,000 widows in the North without representation is more important than the correct 14A which is going to replaced in January. It is their habit being not first to use the loopholes self-fullments. So they don’t care about the theoretical mistake in the passing of the 14A. The appe andu race is not going to have itself corrected if this problem is corrected. Country wide employments’ qualification is being a relative of appe andu politician. Then, Why just pick on M.Ps. who have paid their shares for the party’s leaderships?
It is worth to support him on if it were a different situation. When the people picked up under PTA cannot come out, supporting Activists Kodituwakku is like a of woman who has nothing to eat at home but checking the price of the Kanchipuram Kooari prices on the shopping bazar. As far as Tamils are concerned from the EP to, down to Hirunika are serious crimes accused people. Lankawe receives these politicians with both hands open. Then, what is the point in arguing that just one or two lost ones have come back to parliaments? It is again and again explained that the proposanal representation system is not an election system, its is only a selection system. It was purposefully designed to have selected Sinhala parties’ MPs in Tamil area. So Tamils are waiting the entire PR system to be redone.
CJ Sripavan and CB governor Mahendran are Ranil Mahata’s golayaas appointed to fool the IC that the Tamils are reallowed to government services. Their brain is cloned with Ranil’s. Rather, Sri Panvan can do only what Ranils says, or have to see the paths of Mokan Piries or Shiranee Bandaranayake. Activist Kodituwakku will have a better chance of winning the case if establish a UNP branch at his home.
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Sinhala_Man / December 25, 2015
Dear Mallaiyuran,
You have said,
“It was purposefully designed to have selected Sinhala parties’ MPs in Tamil area”
That particular criticism of the Proportional Representation system is unfair. Consider Upper Uva, in other words, the Badulla District.
At the time of Independence there were Tamil MPs; please research that yourself. However, a huge number of Tamils were disfranchised, and some of the “Jaffna Tamils” did actually supported it, while some opposed it. With all this unnecessary talk of caste and religion in Jaffna, don’t you think you should study that bit of History. The Marxists (including the Trotskyites) took a principled stand against it, and lost lots of Sinhalese votes as a result.
For a long period Badulla District had no Tamil MPs; now they have two. This is as a result of Proportional Representation. Next year there are going to be local elections, and here’s something that you could do. There is a swathe of the Bandarawela Municipal Council that actually belongs to the Haputale Pradeshiya Sabha (still referred to as the Haputale “electorate” when results are released). The result is that people from the village of Ettalapitya, on the road to Ettampitiya, have to go past Bandarawela town to their Divisional Secretariat which is situated in Diyatalawa. They wanted all that changed, but could not. The reason? The former Speaker, W.J.M. Lokubandara, wanted a fair number of Sinhalese votes in the Haputale electorate. Despite all this sort of manipulation we should be happy that his son actually lost.
What I have said may actually happen in reverse in the Nuwara-eliya District where “Up-Country Tamils” are the majority.
As for, “CJ Sripavan and CB governor Mahendran . . . to government services.” – that is exactly what I had said, above, before you psoted your comment.
It’s high time we stopped voting on the basis of ethnicity, and vote instead for the most honest people. Are you willing to do that?
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Mallaiyuran / December 25, 2015
Sinhala_Man,
The PR system is a magician hat; it can produce a flying pigeon out of nothing. I tried to bring out the intention of JR when he was impeaching Amirthalingam. By experience, I did my appropriate calculations. That cannot be challenged by any arguments. It is down to the base Sinhala Intellectuals’ shrewd administrational techniques, these pigeons come of North’s pure Tamil electorate; but Tamils out of Sinhala electorates. This technique is to create a multiplier effect to disenfranchising the upcountry Tamils, out of Tamils area, not to sooth it out. Bringing Tamils MPs out of disenfranchised Tamils area was not JR’s intention when PR system was introduces. The one or two MPs came out is only by the loophole of the law and the mistake in the creation of the district. This will be fixed by the Yahapalanaya government when the constitution is changed. After Sinhala Intellectuals disenfranchising the upcountry Tamils and giving one or two MPs though PR is like Sinhala Intellectuals first looting my lunch and beating me make to beg food from them and now giving me back a part of the food looted as giving graceful alms.
No point in North-East Tamils throws out a shark to catch a shrimp in the up country. Under the last government the single MP Douglas was used to rule out the entire north. He partnered with Rishard and devastated the North. Even after doing that all he has returned again. Though Vijayakala is not as strong as him, but the government is showing every indication to turn her into one. But all the Tamils MPs coming out of the upcountry are always the slaves of the Sinhala Parties. These up country Tamil MPs and North-East Tamils MPs coming out of Sinhala Parties are Sinhala Aappa made out of Tamil Dosa batter. The result is they are only Aappa not Dosa.
If the Sinhala Intellectuals are interested in Tamils increasing their number of their representation, many areas in the upcountry can be re-bordered and new electorates can be created where Tamils are majority. But the opposite is what the Sinhala Intellectuals are doing. In fact, if you read my previous postings in CT, you will see I have written, if Tamils have to accept a federal solution, Tamil area in the upcountry has to be consolidated and it has to be merged with North east for administrational purpose. This is how they can improve their living by a common educational system and employment system. Now the isolated MPs coming out of upcountry area in the Sinhala parties are slave Tamils. They are mainly forced to agree barter many times instead of increase and improve as go on upward society. Many times, the barter demands to sacrifice the Tamils’ common interest and take up few employments to friends and families. No one Tamil MP talks about rights, other than Mano Ganesan.
Instead of uniting and creating new electorates for Tamils, the opposite of that is what happening; the area are split to isolate one Tamil neighborhoods to water out Tamils’ representation. This is how, even outside of upcountry, the areas are handled. Ampara, Trinco, Vavuniya all are suffering by this ugly technique. Under British system, instead of destroying one community and uplifting another community, where an area was shared by multiple communities, they allowed multiple MPs to one electorate. Colombo and Nuvaralia are electorates had multiple MPs like that.
Because of some mutual understanding with Mano Ganesan, TNA did not fully support the removal of PR. But, this does not alter the intention of Sinhala Intellectual JR when he was bringing the PR.
If you look at the history, Tamils did not lose anything by voting on the line of ethnicity. Now they have brought the problem at the international level. Further they did not start it either. They responded when Sinhalese rigidly and firmly wanted to vote on ethnic lines. It was the” Sinhala Only” call that appeared even before 1944 was the reason G.G wanted 50:50, so the Tamils may not lose by the Sinhala Mass voting on ethnic lines. 50:50 was result of Sinhalese selecting representative to state council and legislative councils on ethnicity based voting. Even Ramanathan who worked for Sinhalese with Sinhala politicians and religious leaders like Anagarika Dharmapala has put forward this on his latter days. It is only Sinhalese lost by starting to vote only on ethnic lines. The country that was equal to South Korea during the freedom days, now has gone down to hell only because Sinhala Intellectual political moves. Voter voted to racist to spew racism, elected one spewed more racism to get elected. It became snowball rolling down on the glacier. The ball has gathered a size, during the roll down, that no way to melt it with any effort. Tamils should not attempt to straighten the dog tail anymore by thinking of going with the Sinhalese along. Self-determination and separation is the solution.
It is not just they destroyed them by their urge to destroy Tamils. They have created an extremely volatile situation for Lanakwe in the world arena. Lankawe was has opened up Indian Ocean as battle theater for challenge the mighty of superpowers’ navy. Japan bombed Colombo and Trinco because Britain was using Lanka to replenish its forces. Lankawe had no saying that time. Further, if you look out in the world, when there is a geo-strategic competition between superpowers, normally its two pronged. India- China, China-America, West-Russia like that only. But in Lankawe, it is China-India-America- Russia- Iran- Israel, Pakistan -Vietnam…. all shorts are accumulated. The Sinhala Intellectual politicians are proudly brushing it off as “It is our geolocation”. That is top of the idiocy of strategic planning. Lankave did not sign a defense agreement with one party to its protection. Indo – Lanka pact is not exactly that, but even that is not respected or implemented because of the connection it has devolving power to Tamils by 13A. Then Lankave fooled all countries to buy arm promising them, after the war, to partnership with them for their interest in Lankawe’s geolocation. Lankawe sold Port City land to China only for greed of commission money. There is no way, now, that land can be taken back. The yahapalanaya Government is not ready to tell the truth to the Sinhala mass. They have an obligation to save and protect the man who saved the island for Sinhala Buddhism from Tamil. Instead of they recovering the land for themselves, by the pressure of losers like India.. they are going to end up selling more lands for all(i.e. China, India, America, Russia. Mannar sea bed and the seawater around the island going to be the first ones will go for auction soon.
Wishing you for good luck to the thinking of starting to vote on merit rather than ethnic lines. We would bless and wish they fix their problems so the innocent and good ones will have a peace full life. But as I said earlier, Tamils should not attempt to straighten the dog tail anymore by thinking of going with the Sinhalese along. Self-determination and separation is the solution
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Sinhala_Man / December 27, 2015
Dear Mallaiyuran,
You have written such a lot. I found it difficult to read, but I persisted. You finally reach a simplistic solution:
“Self-determination and separation is the solution.”
I have no quarrel with you for thinking so, or saying so, but HOW are you going to achieve that? Through legitimate political agitation, or through more violence? I am not a scholar of this subject, neither do you seem to be. However, just look at these statistics:
https://en.wikipedia.org/wiki/Demographics_of_Sri_Lanka
To start with, you may dispute these figures. Or you could base all sorts of arguments on them, but the fact is that the Sinhalese are in an overwhelming majority, (74.9%) and will refuse to grant separation in either way.
In 1946, the Sinhalese were only 69.41%. Why the change? Mainly because Indian Tamils were 11.43% then, now only 4.2%. Why? Main reason, many were repatriated. Unfair? Perhaps, but what do you propose doing about it? Also, some have stopped calling themselves “Indian”, and now say that they are “Sri Lankan”.
We just can’t solve this argument this way. And all this is merely argument. There’s lots of human tragedy contained within all this. Let’s try to be reasonable, or at least act so that you don’t cause more problems.
I acknowledge that although I vote on merit, in practice I end up voting mainly for Sinhalese people. Reason: I don’t even understand your language: I wish I did! I’m trying to be honest. Ethnic considerations being more important to most voters (including you!) than to me, can you now expect anything more than 25% of seats for all the minorities? You can now say that that is precisely why you should have had 50:50. I don’t agree, but don’t get mad at me. Read more sophisticated analyses than I can give you; I think that the combined minorities have more than 25% of the seats: I just don’t study figures of that sort.
Now, having said all that, I’m going to actually attack your point of view:
You say: ” The one or two MPs came out is only by the loophole of the law”. No, they came through votes. We may not like the present system of voting, but at least it ensures representation for fairly large minority groups within a district. We all knew that when it was introduced – and many Sinhalese rejected it for that reason.
You speak insultingly of “Up-country Tamils”.
“Now the isolated MPs coming out of upcountry area in the Sinhala parties are slave Tamils. They are mainly forced to agree barter many times instead of increase and improve as go on upward society.”
The problem is that when they were disfranchised, the attitude of most “Jaffna Tamils” was precisely that they were “slaves”. And instead of improving their lot, you disowned them.
Contrary to what you say, those Tamil MPs are doing a fairly good job. They have focussed on Housing, and there has been great improvement. Not enough. Conditions in some places are still really bad – but you don’t seem even concerned. The education that they receive is less satisfactory than what Sinhalese in the same Districts get, but it’s so much better than it was fifty years ago.
I had told you something specific after writing, “Next year there are going to be local elections, and here’s something that you could do.” I’m pretty sure you haven’t even bothered to read that. You’re right. Resolving such little local issues won’t solve our main problems overnight. You are not interested in solutions: you want to keep talking big.
YOU say, “Under the last government the single MP Douglas was used to rule out the entire north.” Well, he is a Tamil! I don’t like him, nor do you, but he was voted in, and so he has to be allowed to remain (unless “War Crimes” are proved against him). Even then, those who voted for him must be allowed representation. That’s the problem with Democracy! But now things have improved, haven’t they? – as Samantha Powers had to remind Vigneswaran. Wouldn’t it have been better for him to have been more objective to start with?
You don’t stick to one subject. You keep writing without any discipline; no wonder that you are not listened to. As for me, having written so much, I am unlikely to say more – unless you start having a real dialogue (which I don’t expect to start happening!).
On one thing you are right:
“The country that was equal to South Korea during the freedom days, now has gone down to hell” although I’m not sure what “freedom days” means.
We are not “hell” yet, but we may become worse than Zimbabwe. It is up to all of us to prevent that.
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Dinal / January 3, 2016
This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/
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Plato. / December 25, 2015
The Principle on which the Supreme Court has been asked to intervene is that a defeated candidate at an election,whereby he has been rejected by the Sovereign people has no right to enjoy the privileges of an elected candidate.
To rule that this is not a National issue and therefore a full bench of the SC is not necessary is a judgement which cannot be accepted by the people who are are Supreme!
Lawyer Nagananda will have the support of all right minded Citizens on this battle!
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Raj / December 26, 2015
I thought the judiciary, at least, would be strong & independent in the new regime but it seems that bum sucking & cronyism is part of SL culture now, in fact, very much our heritage. We are unlikely see a change, therefore, my admiration for a few people like Mr Kodituwakku for standing up injustice in true tradition of his profession, even though it may be a losing battle.
At least he doesn’t have to expect a ‘white van’ now or does he?
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shankar / December 26, 2015
“At least he doesn’t have to expect a ‘white van’ now or does he?”
what about the hirunicker van.Naga has to careful because someone could spead a rumour that he is having extra marital affair.
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David / December 26, 2015
Any fool knows that the National List abuse is a National issue. No one want to see rejected candidates enter parliament through the National List.
CJ Sripavan cannot rule against President Sirisena, who gifted him the CJ’s office after dispatching Shirani B home within 24 hours after recalling to the office.
In short that is the underlining reason.
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Shrikharan / December 27, 2015
David,
“CJ Sripavan cannot rule against President Sirisena, who gifted him the CJ’s office…”
One sucker Chief Justice Mohan Peiris replaced by another sucker Sripavan and nothing else changed. We call it changing the pillows to ease a head ache.
The Chief Justices should be appointed on a point scheme similar to the Consultants practicing in the Department of Health Services so they need not be obliged to any politicians and can be independent.
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Viktor / December 27, 2015
This challenge appears to be frivolous.
Section 82 (3) makes it the duty of the Speaker to intervene at the time legislation is being considered and not permitting it to be introduced if he saw any problem in it and this presumably include the fraudulent act complained about by the petitioner. Once Section 99 had been signed into law the provisions of Section 124 which states that validity of legislative process cannot be questioned will operate. Unfortunately, there is no provision to question the legislation even if it was, as now claimed, fraudulently done. If there was a fraudulent act, it should have been questioned in 1998 when the amendment was signed into law.
It is surprising that nobody, including the then MPs now aspiring to obtain national MPship through the present legal action, made an attempt to petition against the appointment of Basil Rajapakse as a National List MP in 2007. He was appointed on the death of an MP, although his name was not on any electoral list in the 2005 election as required by Section 99.
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Dias / December 27, 2015
I think Vektor’s comment lacks credibility. I have carefully studied the Motion (filed in Court by the Petitioner) published by CT, which provides the basis of the Petitioners case, which, in my view, appears to be fully with the provisions of the Constitution.
It is correct to say that no amendment to the Constitution becomes law unless complied with the procedure as set out in Article 82, 83, 84 (provisions set out for amending the Constitution).
‘Franchise’ is a sovereign right of the people recognised by Article 3 and it is an entrenched provision. It cannot be denied without people’s approval is obtained at a referendum.
This however has not been done in this case, although Article 99A empowers the party secretaries to elect MPs, including those who have been condemned by the people at the General Election. This clearly violates people’s sovereign power of franchise.
As provided by the Constitution, no amendment brought in, bypassing the law as set out in Article 82, 83, or 84 shall not become law with speaker’s signature placed in it, unless the Executive President certifies that the amendment has been approved by the people at a referendum, which however, has not been done in this case.
When this process has not been complied with Article 82(6) specifically provides that no such amendment shall be construed as valid law.
In my view Justice Sripavan knows that the 99A is unlawful but he cannot rule against President Sirisena. Probably this may be only reason he demands he should hear this case.
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Maddy / December 27, 2015
CJ Siripavan has already ruled that abuse of National List to elect rejected candidates is not a NATIONAL ISSUE”.
He is already prejudiced and should not hear this case at all. As some one said without wasting taxpayer’s money, Siripavan should step down from hearing not just this case but all National List cases.
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Plato. / December 27, 2015
Dias & Maddy.
This is one case that will test the Independence of the Judiciary.
Just the other day Plato was reading the Judgement delivered in the Bracegirdle case by the English Judges.
Will those days ever return?
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Rohan / December 28, 2015
No lawyer has a right to challenge a ruling given by the Chief Justice and this lawyer is not an exception.
Some times the ruling may be questionable yet the all should accept whether one like it or not.
Justice system cannot perform unless the lawyers accept the rulings made by the Court.
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Sinhala_Man / December 28, 2015
Dear Rohan,
You have written in the simplest possible language, but I’m sure that your thinking is very clear, and your comment very serious.
That in itself underlines the seriousness of the crisis that this country has come to face: the entire system may break down.
The result may be the chaos resulting from a breakdown of law and order, more serious than in 1983 or 1989. The excesses of the French Revolution of 1789 may be the sort of thing that we must fear.
Having looked at all aspects, but not knowing Nagananda Kodituwakku, or Chief Justice K. Sripavan, I still feel that I’m on the side of the former.
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CountryFirst / December 28, 2015
Aby citizen has the right to express concern over the Chief Justice’s position that the “National List” is not a “national issue”.
The CJ’s interpretation is flawed. PERIOD.
This flaw is clear and justice has failed.
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CountryFirst / December 28, 2015
Any citizen has the right to express concern over the Chief Justice’s position that the “National List” is not a “national issue”.
The CJ’s interpretation is flawed. PERIOD.
This flaw is clear and justice has failed.
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Cader / December 28, 2015
All should respect the Justice System whether we like it not. Judges may make mistakes but that does not mean that parties involve can accuse judges for wrongdoing.
On the other hand Judges perform their duty under tremendous pressure and sometimes succumb to that pressure. This is what exactly happened to Justice Sriskandaraha, the President of the Court of Appeal.
Chief Justice has ruled that National List abuse is not a National Issue. It shall shall be the final ruling on this matter and no court or other authority has right to challenge this ruling
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BBS Rep / December 29, 2015
Hello Cader and Rohan,
The Judiciary is not above the law. The CJ should not act like one. I have followed this matter quite closely. There must be a means for redress if the CJ should err either on a point of law or like in this case he succumbs to political pressure.
The entire system of democratic processes in Sri Lanka is flawed when an unrepresentative entity is appointed as a representative of the people. This as in the case of My3s sole decision to bring in discredited and often criminal elements to parliament is a blatant caricaturising of a democratic system. Accepting the CJ’s biased decision as the final edict in the matter will not resolve the flaw in our democratic processes. We must and the Bar Association must stand by Nagananda Kodituwakku’s brave stand on this matter.
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Soma / January 2, 2016
Siripavan is trying to scare kodiththuwakku using dirty tactics like asking Bar Association to come and note the hearing. This is most ridiculous. Siripavan is indirectly asking Bar Association to take action against Kodithuwakku, lawyer. Sirpavan is breaching Kodiththuwakku’s human rights. Siripavan’s action shows he has already decided the case. Siripavan should withdraw from the case and appoint the full bench to hear the case. Siripavan is biased against kodithuwakku. How can we have faith in this old man, Siripavan, appointed by My3? Siripavan will bend backwards to save his master My3’s National List
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Rosemary / January 2, 2016
Nagananda Kodithwakku correctly asked CJ to step aside because he is biased in this matter. CJ became angry and called in Bar Association, indirectly asking them to punish Nagananda. This is not Yahapalana, but Yamapalana. Shame on you Mr Siripavan
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