18 November, 2018

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DEW’s National List Challenge Goes To Geneva

Supreme Court declines DEW Gunasekara’s National list Challenge; the case proceeds to Geneva

The Counsel alleges that Supreme Court involved in a fraud cooked up by President JR Jayewardene under moral duress

DEW

DEW

Yesterday, the Supreme Court of Sri Lanka refused to grant ‘leave to proceed’ to DEW Gunasekara’s Rights Application, upholding the objections raised by the Respondents that the Court had no power to inquire into a law (Article 99A of the Constitution) ratified by the Speaker under Article 80 of the Constitution.

However, the Counsel Nagananda Kodituwakku appearing for DEW Gunasekara, the Petitioner, submitted to the Court that the in-depth investigation carried out by him, into the manner in which the 14th Amendment to the Constitution had been enacted, has proved that it was a fraud committed by President JR Jayewardene with the tacit approval of the Supreme Court, given under moral duress. The Counsel cited evidence published by the International Commission of Jurists, in JRJ era, where it is declared that the President JR Jayewardene had found the Supreme Court as a hindrance to his policies. Their conclusion was inescapable that President Jayewardene was deliberately seeking to teach Judges a lesson in order makes them more pliable to the Executive’s wishes.

It was further submitted to Court that the Counsel had managed to discover the Supreme Court’s determination Record on 14th Amendment and that it proves beyond any doubt that the Supreme Court had been made to approve the ‘type-written note’ claimed to be the 14th Amendment Bill, sent by the President. It was not a Bill published in the Gazette for the information of the people to raised their objections against bringing defeated candidates through the National List under Article 99A. It was submitted further that the 5-Judge Bench in 1988 had refused the citizens even to peruse the Bill referred to Court by President Jayewardene denying them any opportunity to raise their objections against the Article 99A. The Counsel Nagananda Kodituwakku argued that it was a clear infringement of the sovereign rights of the people guaranteed by the Constitution, which cannot be denied except through a mandate obtained at a referendum under Article 83 of the Constitution. And therefore the Bill enacted by unlawful means has no force in law in terms of Article 82 (6) of the Constitution which states that ‘no provision of any law shall or shall be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the Article 82 of the Constitution. Citing decided case law (Bribery Commissioner v Ranasinghe), the Counsel further submitted that the Supreme Court of Sri Lanka had previously had dealt with the Legislature, where laws had been enacted, violating the Constitution.

Nagananda Kodituwakku

Nagananda Kodituwakku

The Counsel further submitted that when he made an application to the Chief Justice to obtain a certified copy of the Determination Record of the 14th Amendment, it was refused with the following direction given to the Registrar of the Supreme Court.

“…Communications between the President and the Chief Justice and the Observations of the Court, which are communicated to the President and to the Speaker, need not be disclosed to Mr Kodituwakku. The request contained in the Motion is therefore refused…”

It was submitted that the Court might have acted in this manner apparently with the knowledge that it had committed a serious error in 1988 under moral duress.

In the oral submission which lasted over one hour the Counsel stated that unlike the Indian Supreme Court, the Sri Lanka’s Supreme Court lacked credibility, uprightness and fearlessness to stand firm against the corrupt Executive and the Legislature. And that it is not committed to uphold the people’s judicial power, it exercises purely on trust under Article 105 of the Constitution.

It was submitted that the Supreme Court does not follow the proactive approach in the public interest litigations and would not allow any concerned citizen to initiate such actions without locus standi. This was the reason for the former Minister DEW Gunasekara to be the Petitioner in the case.

Quoting, the Chief Justice of India, Bhagwati, the Counsel submitted that the Judges in the Supreme Court cannot afford to be timorous souls and that they cannot remain impotent, incapable and sterile in the face of injustice and that the State cannot be allowed to act arbitrarily and that the Court must made the State to act reasonably and in public interest, on pain of its actions being investigated by the Judicial intervention. And the Counsel invited the Court to be the symbol of hope for the people of Sri Lanka at a time when the Executive and the Legislature betrayed the trust placed in them by the people at ease and to be firm in defending the sovereign rights of the people that are been abused by the corrupt Executive and the Legislature.

However, the Supreme Court disregarded the submission made by the Counsel Nagananda Kodituwakku and upheld the objections raised by the Respondents that the Court cannot question the validity of the law (Article 99A) ratified by the Speaker in 1988.

And now it is learnt that the Petitioner DEW Gunasekara is in the process of taking this matter to the United Nations Human Rights Council in Geneva.

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Latest comments

  • 5
    2

    This clearly raises more intriguing questions.
    Then MR was right in withholding the detailed determination of the supreme court on his 3rd term bid which the nation accessed courtesy Colombo Telegraph.

    If the Speaker’s certificate is inviolate so is the Certificate given by Speaker Chamal Rajapakse on the impeachment of the 43rd Chief Justice.

    “Every thing secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity”
    Lord Acton
    We desperately need a Lord Denning who sought justice at the expense of legality.

  • 6
    3

    I am purturbed at the lack of interest shown by the public of Sri Lanka over this case.

    I am no fan of DEW Gunesekara however I support him in his endeavour and applaud Nagananda Kodituwakku for showing tenacity.

    There is absolutely no doubt in my mind that the present Supreme Court have been influenced by the Yahapalanaya mob to deny the right to proceed. After all there are a whole heap of unelected national list members, many of them known rogues, now holding Ministerial positions in the present Yakapalanaya cabinet. There snouts are not going to be moved so easily from the gravy train.

    • 6
      0

      What you say is true but what is the alternative?

      I, as much as many others here, am disgusted with president Sirisena and his recent antics. I am not in any shape or form attempting to justify or absolve him form blame. But what do you expect him to do? Instead of us fighting for some cockamamie principal can any one of you learned gentlemen give an alternative National List?

      One thing I know is, there is theory and there is practice. In universities I have come across renowned academics who have written brilliant theories how to run the whole world like clockwork, in practice can’t run a viable family-unit with the wife and children – Karl Marx was also one, I suppose.

      When everyone (including myself) was crying blue murder about Sirisena’s UPFA national list, as a practical-realist, I went away and did a little thought-experiment and put together an alternative national list from the nominated people.

      And the list is, G.L. Peiris, D.E.W. Gunasekara, Tissa Witharane, Tissa Attanayake, Dilan Perera, Tiran Alles, Rajiv Wijesinghe, Jeewan Kumaranatunga

      Remember the National List was never meant for politicians to come to parliament but for non-politicians to come to parliament – a good example is Kadiragamar. Now, go on, take your pick. Which is better; politicians who lose or politicians who can contest an election and never win? The fact that, they did not contest (because they knew they were sure to lose – at least the others had half a chance of winning, that’s why they contested) and lose does not give them any more legitimacy than the others who had the courage to contest. One way or the other they are both rejected by the people. Either way we are damned.

      In theory, it is admirable to adhere to the principal that no one who loses (it should really be any politician) should be brought in through the back door but when you do that see what happens in practice when politicians have mucked-up the initial good intentions of the National List. Sometimes conventional-wisdom is not wisdom – it’s not what it seems.

      In all these, are the voters sacrosanct; devoid of any blame? Can the voters vote for any scoundrel and send them to parliament and later turn around and demand “good-governance?” For crying out loud, one of the people who got the highest number of preferential votes is still in remand for murder! Has the thought ever occurred to you how Sirisena and Ranil can deliver “good-governance” with this motley crew if they do not resort to some skulduggery?

      People can send absolute scum of the earth to parliament and in return have the right to turn around and expect leaders to perform magic and deliver “good-governance” while adhering to pristine principals!

      I think it’s time for all of us to be a wee little more realistic.

  • 6
    1

    This Supreme Court decision was expected. Supreme Court has rightly refused to grant leave to proceed with DEW Gunasekera’s application. It could not have given any other decision.

    Gunasekera’s Counsel Nagananda Kodituwakku should have known that the application is untenable given very clear constitutional provisions on challenging the actions of the Speaker of the Sri Lankan Parliament.

    On 27 September 2015 commenting on an article written by Pujitha Sumanasekera in the Colombo Telegraph under the title “Permitting Defeated Candidates As MPs: People’s Sovereignty Under Siege” I said the following:

    “DEW Gunasekera and his lawyers may have an argument here, but I doubt whether the present Supreme Court will be able to overturn a constitutional amendment passed by the legislature and certified as such by the Speaker. A notable fact here is that this constitutional provision had remained unchallenged for the past three decades.

    I important issue here is whether the Supreme Court is vested with the authority to go behind a legislation, be it an ordinary legislation or constitutional amendment, passed by the Parliament and inquire how it was enacted. Once a Bill is certified by the Speaker as having been duly passed, I do not think the Sri Lankan Supreme Court or any other Sri Lankan court can invalidate that legislation based on irregularity of parliamentary procedure adopted in passing that legislation.

    Once the Speaker certifies in terms of Article 80(1) of the Constitution that a Bill has been duly passed by Parliament, such a certificate is conclusive for all purposes. Article 80(3) of the Constitution clearly lays down that no court or tribunal shall inquire into, or pronounce upon or in any manner call in question, the validity of such resolution on any ground whatsoever.

    I do not think that DEW Gunasekera’s application will succeed.”

    (Here is the link to that Colombo Telegraph article and my comments –
    https://www.colombotelegraph.com/index.php/permitting-defeated-candidates-as-mps-peoples-sovereignty-under-siege/)

    Supreme Court has done what I predicted.

    I do not think that DEW Gunasekera would succeed at the UN Human Rights Council in Geneva if he chooses to take up the issue there.

    • 5
      4

      Yes.
      But even if DEW’s application does not succeed at the UNHRC in Geneva it is still worth a try, as it will provide an opportunity to the world at large to know about how illegal laws are framed by leaders with a fascistic dictatorial mindset who come to power in SL are able to manipulate parliament and enact laws by, by passing the country’s SC.
      I too am not a fan of DEW Gunasekera now, but his attempt, even if it fails could be of benefit in the future when the people of this country decide to rid the present scheme of things and start anew.

      • 4
        2

        Why all the fuss. How many illegal laws were passed by the previous parliament under the very nose of DEW. After all DEW did not get a place from the national list. If DEW is forthright in his thinking without taking his case he should have taken the case of innocent voters whose vote for violated by candidates crossing from one party to other purely for their benefit.

  • 3
    1

    Naga,
    Indeed. Supreme court has done what was expected. The Russian Psychologist Pavlov has told us why.
    Chief Justice Earl Warren overturned ‘separate but equal’ in Brown vs Board of Education by holding that it violated equal protection clause in the US constitution. That required courage more than legal niceties.

    The Sovereignty of the People shall be exercised and enjoyed in the
    following manner :–
    (a) the legislative power of the People shall be exercised by Parliament,
    consisting of elected representatives of the People and by the
    People at a Referendum ;
    Defeated candidates don’t become elected candidates even by the provision of appointing members from a national list submitted prior to the election.

  • 2
    1

    This is a very interesting case. I hope CT will continue and follow the case and let the readers know the outcome.

  • 0
    0

    This is what the danger just talking independent …The Transparency should come little before independent and both should work together. so how the make sure both work efficiently that in parallel there should be check and balance

  • 1
    2

    What can one expect from any government which recruits defeated candidates, as MPs under the National List, to parliament – and, from a Supreme Court which ignores this?

    This I believe, happens only in Sri Lanka.

  • 2
    2

    The Govt makes use of an “illegally passed law” and the Supreme Court is tied to adhere by it. What a sad state of affairs. Where does anyone go for redress?

  • 1
    1

    Naga is brave to take this matter to SC and fight. But How can SC change a Constitutional provision even flawed? That must be done in Parliament

  • 1
    1

    Naga was brave to argue the wrong done to Dew and few others before SC. But how can the SC change the provisions of the Constitution even if they were or their passing in parliament is questionable? It must be done in Parliament

    • 0
      0

      CT,

      It is high time that you allowed ONLY ONE commentator to use a pen name on your columns. This one is yet another fake you have let loose.

  • 2
    0

    Lets for a moment forget all this; Supreme Court,Speaker,DEW etc etc.
    What is the moral principle involved if a candidate,who was comprehensively defeated at an election by the voter is permitted to enter Parliament?
    Sarath De Alwis is quite right when he refers to that famous maxim of Lord Denning.

  • 1
    0

    Whay Geneva? These are the people who tell us “international Organizations” must not be allowed to interfere with our affairs. Then why go to Geneva? In my opinion this is what these “Experienced” politicians must do. Propose legislation or Amendment to the provisions that deals with “Nominations from the National list”. State it specifically, that “NO Candidate who Contested at an Election and Failed to Secure Nomination to Parliament” be nominated or named to enter the Legislature. In addition it must be stated that once the “National List names are filed with the Commissioner of Elections, that list cannot be amended or not be replaced with any other names unless anyone named therein happen to be not alive or voluntarily stand out, in which case the next person will be nominated. If such clear terms are stated in Policy and in Legislation these types of difficulties and questions want arise. Don’t these Pandits understand this much?

  • 0
    0

    Sri Lanka judiciary has lost it’s credibility not due to acts committed or not committed during the last decade only but also during previous regimes also as clearly shown by this article. No wonder that UNHRC also mentions this and has no trust in us. This is a clear case for external interference in our judiciary now with regards to the alleged human rights violations. So there is no point in blaming the MR govt only.

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