Colombo Telegraph

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


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

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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