There was a finding by the infamous Parliamentary Select Committee (PSC) that the case commonly known as the “Trillium Case” was wrongly taken before a bench presided by CJ Bandaranayake by CJ Banadaranayake herself. To arrive at this finding the PSC mainly relied on the evidence of Justice Shiranee Thilakawardene and PSC stated in its report that they believe and accept Justice Thilakawardene’s evidence in toto without hesitance.
Though not relevant, this finding is wrong and apart from that, the so called evidence given by Justice Thilakawardene is absolutely false.
The objective of this article is to analyse the evidence given by Justice Thilakawardene being a Senior most Judge of the apex Court of the Country.
The background to the matter
A motion and affidavit was filed on 19/08/2011, challenging certain decisions made by Justice Thilakawardene in SCFR 191/2009 ,by a affecting party an Intervenient-Petitioner , inter-alia ,and the party affected wanted to review the orders made on 29/06/2011 by Justice Thilakawardene and also asked for 5 Judge Bench to review the particular order made by a bench presided by Justice Thilakawardene.This motion and Petition contained 11 pages and annexes running into 72 pages. What more is that this affidavit shows the conduct of Justice Thilakawardene and how the orders were made in the matter affecting rights of people in violation of their rights.
In short this motion and affidavit comprehensively challenged the decisions made by Justice Thilakawardene. The affidavit and motion were filed not merely to ask for 5 Judge Bench.
It was referred to Justice Thillekewardene by the Registrar of the Supreme Court.
Justice Thillekewardene made a minute on 30/08/2011 only stating an intervenient –Petitioner has filed an application and affidavit is dated 19/08/2011 and referred the same to CJ which reads as follows-
The Hon. the Chief Justice-
Intervenient-Petitioner have asked for a bench
Of 5 Judges to hear this case.
Affidavit is dated 19/08/2011.f.n.a pl.
It is trite and settled law that if any order already made in a pending matter has to be reviewed it must be done by the same bench and the order dated 29/06/2011 has to be reviewed by Justice Thillkawardene.
CJ Bandaranayake made a minute stating that the matters raised in the motion has to be looked in to by Justice Thilakawardene and sent the matter back to Justice Thilakawardene through Registrar of the Court ,which reads as follows-
The motion dated 19/08/11 has to be considered by the same bench which sat on 29-06-2011.Pl tender this to Hon. Thilakawardene J to suggest a date for the support of the motion in open Court with notice to all parties.
Since this matter is to be mentioned on 29-09-2011 ,this motion could also be supported before the same bench which sat on 29-06-2011.
Pl. refer this to Hon Thilakawardene J. for information.
Signed –Chief Justice 02/09/11
Thereafter the matter came up before a bench Presided by Justice Thillekewardene on 29/09/2011 and that bench did not make any order. Justice Thilakawardene did not make any order on the motion and not a word was recorded just a mention date was given because the other two Judges did not want to sit in the case any longer.
Thereafter the other Judges have met Chief Justice in Chambers and wanted not to be members of the Golden Key matters with Justice Thillekewardene.(CJ Bandaranayake has stated this in her Petition to Court of Appeal)
Therefore, there were no two other Judges who were willing to sit along with Justice Thilakawardene.
Justice Thilakawardene has said in her evidence before PSC on 7/12/2012 at page 1517 of the PSC Report the following-
Justice Thilakawardene- ……so, I made a minute and also I made an endorsement if I remember right .I make so many endorsements for a day on the file.So , I may not be able to remember it with exactitude.What it said was –I do not think this should be granted, but he has made an application and I put it up it to her ladyship, the Chief Justice to make a minute on it.Then she…
And at page 1518-
Justice Thilakawardene ….Before I submitted the motion , I made a minute saying that this is not a motion to be tolerated by one single person who was part of the settlement ….”
This particular evidence given by Justice Thilakawardene is absolutely false . As is evident by the aforesaid minute dated 30/08/2011, set out above ,Justice Thillekewardene did not say that this motion should not be granted and/or not a motion to be tolerated. Therefore, it is absolutely evident that the underlined portions in her evidence is false.
What is important to note here is that Justice Thilakawardene has given this evidence under an oath
The question why Justice Tillekewardene was hesitating to go into the matters raised in the affidavit/motion dated 19/08/2011 is interesting and yet to be looked into. The motion dealt with some other matters as well which were factual and which Justice Thillekewardene did not want to go into. Justice Thillekewardene sought the assistance of the CJ to refuse and /or dismiss the motion on the basis of 5 Judge issue , then the rest of the matters need not be looked into and She will be saved.
This is borne out by the fact that the person who filed the motion Marco Perera has given a reason in Ravaya Newspaper published on Sunday 23/12/2012 as to what transpired in Court on the day it came up for support before Thillekawardene J on 29/09/2011.
Justice Thilakawardene gave evidence without the assistance of the record/docket and she only tendered an uncertified copy of an order dated 04/03/2011 to the PSC regarding Janaka Ratnayake.
The case was nearly 3 years old case and there were hundreds of minutes and proceedings running into hundreds of pages.In fact the brief contained more than 15,000 pages.
The fact that Justice Thilakawardene gave evidence without referring to the record and/or proceedings are borne out by the following evidence-
At page 1517 –
Justice Thilakawardene- ……so, I made a minute and also I made an endorsement if I remember right .I make so many endorsements for a day on the file.So , I may not be able to remember it with exactitude.What it said was –I do not think this should be granted, but he has made an application and I put it up it to her laduship, the Chief Justice to make a minute on it.Then she
So, I put it up to her and I said ,”Put a minute”. I can remember writing a minute on that.
………….I do not have those proceedings.
The underlined evidence show that Justice Thilakawardene gave evidence without relevant documents.
In the circumstances, it is clear and can clearly be established that Justice Thilakawardene gave evidence before the PSC without looking at the proceedings and/or minutes made on the record.
The matter being such an important matter regarding the impeachment of the Chief Justice and the witness being Supreme Court Judge have given evidence on matters of record without having the record and/or proceedings and/or certified copies before her.
It is crystal clear when compared with the record and the minutes /Journal Entries and the proceedings that this evidence is false.
The relevant affidavit was not before PSC; the relevant so called motion was not before PSC;the relevant minutes made by Thilakawardene J and CJ were not before PSC. Thilakawardene J gave evidence without these material documents and gave incorrect and false evidence.
Justice Thilakawardene acted irresponsibly and gave irresponsible evidence which are false.Justice Thilakawardene permitted the sale of Trillium apartments at the request of Watawala Committee and she did not have the courtesy to say that Trillium was permitted to sell apartments as far back as may 2010 at a time CJ Banadaranayake had no role to play as Judge of the Supreme Court or CJ in these matters. In short Justice Thilakawardene who released the Trillium apartments and permitted the sale with a 5% (through watawala committee) did not tell the truth about such release and permission.
The PSC had no hesitation in accepting this evidence.
This shows the interest and the keenness of Justice Thilakawardene also to go before PSC and give vital (false) evidence.
It is also interesting why the PSC did not call any other Supreme Court Judge who took part in these matters and conveniently chose ONLY Justice Thilakawardene and acted on uncorroborated false evidence of Justice Thilakawardene.
The following matters arise-
1.These Golden Key cases were a treasure of Justice Thillekewardene (for reasons best known to her).
2.Interventions were never allowed. All interventions were refused or not taken up.
3.The application dated 19/08/2011 was filed by an intervenient-Petitioner who is not a party even today in the matter.
4.These cases were heard by Justice Thillekewardene right from the beginning and if Justice Thillekewardene was of the view that motion should be dismissed she could have dismissed the motion, since the motion was not by a party to the application.
5.The fact that it was not dismissed by Thillekewardene J gives credence to the story /version of Marco Perera as he has been set out in his article published in Ravaya.
6.JusticeThillekewardene was always saying that she finds it difficult to get two Judges to sit with her in these cases. Vide evidence at page 1515
7. If there was a problem on 29/09/2011 as to the bench or motion why did not Justice Thilakawardene record it in open Court. Justice Thilakawardene’s evidence reveals that she has gone and met CJ in chambers in respect of this matter. This means the issue of other Judges not wanting to sit may have been discussed BUT not minuted for good reasons.
8. One other important matter was Justice Sripavan who was a member of the Original Bench continued to sit with the CJ in these matters. All the judges and lawyers who appeared in the matter knew the exact situation.
9.All these gives credence to the following matters which CJ has stated in paragraph 74 -79 of her Writ Petition to the Court of Appeal-
74. The Petitioner states that
(a) a motion was filed by a depositor /intervenient –petitioner in SCFR 191/2009 on or about 19/08/2011 asking that a bench of 5 Judges be constituted;
(b) when the matter was referred to Justice Shiranee Tilakawardane, Justice Shiranee Tilakawardane referred the same to the Petitioner;
(c) in the circumstances , the Petitioner referred it back to the same bench that heard the case , thereafter the matter was never referred to the Petitioner for consideration of whether a Bench of five Judges should be constituted
(d) that Justice ShiraneeTilakawardane did not refer the matter to the Petitioner for a constitution of a Bench of five Judges and there was no such minute in the file.
(e) In the circumstances the constitution of the Bench of five Judges never came up before the Petitioner.
(f) In the circumstances the order of the Select Committee is ex facie wrong.
75. The Petitioner states further in answer to the said charge without prejudice to the aforesaid.
76. The Petitioner states that –
- i. there were several allegations against Justice Shiranee Tilakawardane which is not relevant to be repeated here.
- ii. Judges refused to sit with Justice Tilakawardane in this matter as is evidenced by the evidence of Justice Tilakawardane.
- iii. further allegations were made that Justice Tilakawardane met with some members of the Watawala Commission alone in her chambers without any of the other Judges and/or any counsel and that neither counsel nor other Judges were aware of the discussion.
- iv. The Petitioner further states that the Watawala Commission had been paid approximately Rs.40 million allegedly for work done. This money was in fact meant for repayment to depositors.
77. In the aforesaid circumstances the Petitioner having considered all the facts and circumstances and after having consulted senior Judges of the Supreme Court, constituted a Bench chaired by her with two other senior judges to hear and determine the case.
78. The Petitioner pleads that at no time did any person protest that the case was taken out of Justice Tilakawardane and or heard by her.
79. The Petitioner states
(a) that case came up on several occasions.
(b) Several hundred depositors were present in court
(c) most if not all depositors were represented by Counsel.
(d) The Respondents were represented by counsel,
(e) the Watawala Commissioners were present in court,
(f) the Hon. Attorney General was represented.
(g) None of such persons ever protested that the case was either wrongfully taken and/or that it should not be heard by the Petitioner.
10. Therefore it is clear that this evidence given by Justice Thilakawardene on the face of it and when compared with the record is absolutely false, and being Judge of the apex Court she has acted in a disgraceful manner by giving false evidence and acting irresponsibly in a rushing manner by referring to facts without the record on certain occasions, the PSC has acted upon which like messiah’s words.