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.
Don Stanley / August 26, 2013
Thilakawardene is a disgrace and should be forced to resign – along with her patron the de facto CJ Mohan Peris, a corrupt clown…
These two are bringing shame and infamy on the highest court of the land.
Of course, what can you expect when the Rajapassa regime is so corrupt?
Wanathe Shiromi / August 26, 2013
Why say so aney?
She with this (cheap) make-up balannako heda.
She is educated and supporting Perci Mahinda and De facto Mohan Kamalesh ne.
you all are so bad aney, always baninawa meyalata. Aney yanna.
Patriot / August 27, 2013
Dono, Don’t talk like an idiot, there is an election in progress for three PCs. You and your clan now have a chance to show your colors without talking bullshit.
Lapatiya / August 26, 2013
This is how our Independent Judiciary works. This is the good example that there is no Law and Order in the country. Looking for fairness from Sanwedee Nayaksthumas Independent Judiciary is like looking for virginity from prostitutes.
mike / August 27, 2013
Shirani Buran, I agree with Lapatiya.
NAK / August 29, 2013
Have you ever tried that? I mean looking for virginty in a prostitute!
Sulaiman / August 26, 2013
Wow. How can a self respecting person, leave alone supreme court judge, remain on the bench after such an expose?! She should clear her name or quit. not that there is much confidence left in the judiciary after the repeated attacks on it, but if she fails to take action on this it may well mean the death knell for any sentence of public confidence in the judiciary. If this is not a ground for impeachment, i don’t know what is. Shame.
Sulaiman / August 26, 2013
Sorry that should be semblance not sentence!
gamini / August 26, 2013
The Bar Association should prepare evidence of ‘Miscarraige of Justice’ to remove CJ De Jure and to appoint CJ De Facto with back up details from Case Records and present Navi Pillai the whole Case. Because this issue also comes under Human Rights Violations.
Lankan / August 26, 2013
Justice Tillekewardena should be hereafter called Injustice Tillekewardena. When this government falls the parliament should bring a motion to impeach her and send her home. Not only that all the cases where she sat as a judge should be re-examined. She thinks she is the next Cheap Justice in waiting, she is a disgrace to the strong women of Sri Lanka and above all to the judicial service.
justice / August 26, 2013
But will the PSC members revise their opinion – hardly.
They have done their ‘duty’ to MR and not to Justice.
abhaya / August 27, 2013
this article is as clear as mud . infact mud is clearer . who ever wrote this nonsense should be sent back to pre school . Clearly the Education system has failed this person .
Asoka Marasinghe / August 27, 2013
You are right on, Abaya. Is the art of writing dead in our part of the world? This is a newspaper and reproducing a document with legalese terms serves no purpose. The vocabulary/legal terminology is further away from the general reader. What a waste of space!!
Kekille / August 28, 2013
You two see the the language inefficiency and incompetence only here? read Island Dailynews etc.
Is this blame because the write blamed a Dobi of Percy Mahendra?
If the writer blasts RW would you comment negatively?
Ethics of jouranists and their language skills are appalling since this Gonraja came to power.
In a way its true if Percy can be the leader and Nandasena can be def sec why cant any Tom Dick & Harry word at lakehouse or at ITN.
chandra / August 27, 2013
What do you expect from the likes of Shiranee Tilakawardane?
It was widely known in the “corridors” of her lack of ethics.
R.J.de Silva / August 27, 2013
10,000 once upper middle class are virtually in the streets, with their lives virtually destroyed and this Judge is playing games.
A CJ engaged in the corrupt practise of virtually stealing two luxury
apartments whereas these defrauded nearly 10,000 depositors expected justice and relief from her. It is understood even the Rs.200,000 that was promised by Basil Rajapakse to all the depositors a few months ago has not been paid.
What has really happened to this country which had a reliable and proud
justice system only a few years ago? Apparently, some curse is working
against the people of this country – never mind what happens to the Royal Family and its many members and hangers on.
James / August 27, 2013
I agree with the comment ‘justic” has made the PSC has done their duty to MR … That was all there was to that. .
People mostly are greedy, lack principles, lack ethics and lack morals ..So how can we ask from them anything more
The media is also silent and only make a squeek when approved to do so. I am told that the Sunday Leader sends by disk what it plans to publish prior to publication…,
Well lets not start about the police, enough been said.
There are no checks & balances.. in a society where there is no checks and balance like the medivale kingdoms..King has absolute power & everyone else has to look after him/herself to survive.. Until change comes
Kaliamma / August 27, 2013
She is a bitch who does anything to get up the ladder