Last week saw the unprecedented case filed in the Supreme Court against 1) Supreme Court Justice Priyantha Jayawardena, 2) the Controller of Immigration and 3) the Attorney General (the latter being stated to have been named for informational purpose only).
Counsel for the Petitioner is the irrepressible Nagananda Kodituwakku, best known and admired for his public interest litigation.
The Petitioner is Kayleigh Fraser, a citizen of the UK who is presently staying in Sri Lanka with a resident visa valid up to 8 March 2023 which however she alleges was arbitrarily cancelled by the Controller of Immigration without adhering to the due process as provided by law. Ms. Fraser’s main contention involves the cancellation of her visa and, more importantly, Justice Jayawardena recording in her case file a directive to the Supreme Court Registrar to ensure that her case is not called on a date before 23 June 2023. Technically if the case is called before 8 March 2023 until when she had a visa, her visa cancellation would be stayed while the case is on, and she will not be deportable until the case is disposed of.
A key point of her case concerns Justice Jayawardena. He had been Basil Rajapaksa’s lawyer prior to being elevated to the Supreme Court. Since then, many have wondered if he is capable of impartial judgements involving the Rajapaksa government. I have observed many cases and notice from conversations among lawyers as to how they expect each justice to vote. Invariably they predict correctly Justice Jayawardena voting with the then Rajapaksa government. Usually, it is the independent judges they cannot predict.
This is a case where Ms. Fraser participated actively in the Aragalaya movement that successfully removed the Rajapaksa brothers as President and Prime Minister. She took part in the social uprising demanding the removal of both the President and the then Prime Minister.” Is that what precipitated Justice Jayawardena’s alleged moves against her? To enjoy seeing her deported?
Ms. Fraser reported in her social media pages that on 09 May 2022 she was at the protest site where she witnessed the ruthless attack launched against the protesters by the government, and she could not believe her own eyes the way they were subjected to, to all sorts of inhuman and degrading treatment. She states that her reports had offended the authorities of Sri Lanka. She further states that the police have conducted discreet inquiries about her and reported that the information contained in her social media pages about the nonviolent social revolution was negative and that she has brought the government of Sri Lanka into disrepute. The immigration officials also have informed media that action taken by her has violated her visa conditions.
She states that she is one of the concerned persons who had vocally supported the people’s nonviolent protest campaign staged in Sri Lanka since April 2022; that even the then Prime Minister, Ranil Wickremesinghe, fully supported the peaceful social revolution and in fact in an interview with Sky News urged foreigners to visit Sri Lanka and, producing a recording, to take part in the social uprising demanding the removal of both the President and the then Prime Minister. Her Petition also points out that that many local and international organizations including the United Nations Organization have condemned the undemocratic actions taken by the government of Sri Lanka to suppress the nonviolent social revolution and the inhuman and degrading treatment meted out to the people who took part in it. Moreover, alluding that she did not do anything unlawful, she points out that, in her words, the Secretary General of the UN in a press statement issued on 11 July 2022 declared that the UN system was with the people and demanded that the government ensure a smooth transfer of power and maintain peace.
Thereafter on 02 Aug 2022 her property was raided by Immigration Officials accompanied by Police and her passport was forcibly seized with a direction issued to her to attend the headquarters of the Immigration Department within a week. Accordingly, she attended with her lawyer the meeting on 08 August 2022 to which she was ordered, and she was detained there from 11.30 am till 6.30 pm and questioned in detail about the role that she played at the protest site at Gale Face Green and about the social media content published by her. Her lawyer was not allowed to be present during the questioning conducted by the investigators of the Department of Immigration. She was asked to call over again on 10 August 2022 around 06.00 pm and on that day her passport was returned with the deportation order issued to her to leave the country on or before 15 August 2022. Her Resident Visa stamp endorsed on her passport on 25 February 2022 which was valid till 8 March 2023 too was arbitrarily cancelled she has stated. No formal inquiry whatsoever was conducted into the matter affording her a fair hearing. No reasons whatsoever were given for the endorsement made on her visa page of her passport.
Thereafter on the advice of her lawyer she decided to challenge the arbitrary cancellation of her resident visa. She believes that she is being targeted and subjected to a sustained pattern of persecution which includes mental torture for her firm stand taken against the serious human rights violations taking place in Sri Lanka and bringing them to the notice of the people of Sri Lanka and those abroad. She states that the Sri Lankan government is now trying to deport her back to the UK on the deportation order issued on her. So she is in hiding.
Thereafter, Ms. Fraser alleges that she was the victim of a gang-rape involving 4 people in Weligama in December 2019. She states that this crime was duly reported to the tourist police with photographic evidence of the suspects involved. Yet, she states, the police, instead of investigating into the matter and bringing the perpetrators to book, put her into a room with the gang rape suspects and forced her to withdraw the rape charges levelled against the suspects. She states she has released a video footage about this crime to the attention of all concerned.
Ms. Fraser further states that thereafter on 12 August 2022 a Writ Application was initiated by her in the Court of Appeal (SC/Writs/199/2022) which was supported on 16 August 2022. Yet, relying on the submission made by the Attorney General that the Commissioner of Immigration was vested with unfettered discretion over such issues, the Court of Appeal on 08 August 2022 refused the interim relief Ms. Fraser had prayed for, and dismissed her application for Writs of Certiorari and Mandamus besides the other reliefs she had prayed for. It is noted that the Supreme Court has ruled several times that there is nothing called unfettered discretion.
Being aggrieved by the judgement of the Court of Appeal Ms. Fraser states that on 23 August 2022 she filed a special leave application in the Supreme Court (SC/Spl/LA/218/2022) challenging the Court of Appeal Order and reserved the right to file the Court of Appeal proceedings in Court in due course.
On 02 September 2022 her Application was taken up for support before Justice Jayawardena who dismissed the special application on the basis that certified copies of ‘Court of Appeal proceedings had not been filed in Court. Ms. Fraser, the Petitioner, states that Justice Jayawardena in making that order completely ignored the statement of facts made in the Affidavit filed in Court on 22 August 2022 where she states that she reserves the right to file a certified copy of the entire Court of Appeal proceedings as soon as it is received …”
Believing that Justice Jayawardena’s decision was manifestly flawed, Ms. Fraser filed an application afresh in the Supreme Court (SC/Spl/LA/246/22) on 13 Sep 2022 with the relevant Court of Appeal proceedings. She states that it was fixed for support on 08 December 2022 once again before the same Justice Jayawardena despite the fact the Registrar of the Court was requested by her lawyer to refer the matter to an independent Bench. Ms. Fraser states that when this development was brought to her notice at a time when was in hiding, she conveyed the following message to her Counsel which was in turn brought to the notice of the Court by her counsel:‘… I do not want the same judges to hear my case, who refused my earlier appeal to the Supreme Court…’
Most lawyers this writer spoke to agreed that Ms. Fraser’s request followed the principles of natural justice and told this writer that counsel Kodituwakku has charged several of our Supreme Court Justices including the Chief Justice with corruption and that, they being rather thick-skinned, are again and again selected for the benches hearing cases filed by Kodituwakku.
Ms. Fraser states that her counsel requested Justice Jayawardene to refer the matter to the Chief Justice to appoint an impartial Bench to hear Ms. Fraser’s case without delay considering the enormous mental torture and suffering undergone by her, a young foreign girl forced to live in hiding. Yet, Justice Jayawardena completely ignored her request and postponed the matter for 07 June 2023 also with a direction made to the Registrar of the Court not to entertain any motion in respect of the application and that the application should not be called on any date prior to 07 June 2023, an action which Petitioner Fraser states is completely immoral and not expected from a judge serving in the Supreme Court.
Why? The Fraser Petition alleges that order dated 28 November 2022 by Justice Jayawardena to the Registrar is in the nature of an executive or administrative action and not in the nature of a ‘judicial act’ and that hence it falls within the scope of Article 126 of the Constitution providing for remedies by the Supreme Court against infringement of rights by executive or administrative action. That is, Fraser holds that Justice Jayawardena performed an administrative act by asking for a delayed date, for which the Supreme Court has to provide a remedy.
A senior lawyer commented that Justice Jayawardene should not have treaded into an area where he or his brother Justices or sister Justice would need to provide remedies against executive action by the Supreme court. Ms. Fraser was seriously aggrieved by the said order made by Justice Jayawardena who had unnecessarily got involved in the matter and therefore, made a request to the British High Commission, Colombo and also to her local MP in the UK and filed a number of motions in Court supported by documentary evidence. Strangely, says her affidavit, all those Motions and the documents filed in Court have gone missing from the case record together with a written representation made to the Hon. Chief Justice on behalf of Ms. Fraser by her Counsel on 13 December 2022 with a letter dated 12 December 2022 addressed to the British High Commission Colombo by the local Counsellor in Scotland.
Ms. Fraser asserts that Justice Jayawardene is required by law to respect the rule of law and the Constitution, whereas he had patently abused the public office as a judge in the Supreme Court to deny her legitimate right to justice and had deliberately violated her fundamental rights guaranteed by Articles 10, 11 and 12, and 14 of the Constitution, disregarding the fact that he is a judge in the Supreme Court and that the Supreme Court is the final appellant authority in Sri Lanka.
The senior lawyer I spoke to earlier says the problem in Sri Lanka is that people have no shame. So politicians make money and flaunt it. Justice Jayawardena, according to this lawyer, should have honourably declined his position on the Supreme court after being so closely associated with the Rajapaksas. Whereas in most countries where justices interfere as alleged here, they would do it secretively but never so brazenly since the public would not tolerate it. In Sri Lanka there is no sense of shame to dampen wicked behaviour nor an expectation of honour from officials. Lawyers say that even the Registrar should be held accountable for not questioning the irregular order not to call a case before a certain date. He is certainly is answerable for the missing documents. (By Court Reporter)
cugan / December 29, 2022
I would urge the lady to leave immediately, don’t be too late, here system work differently, PTA is the last tool in hand,they would fabricate anything to suit the law books.thats pride land hold.
Captain Morgan / December 29, 2022
All of this proves that Ranjan Ramanayake was damn right! He was sent to jail for speaking the truth. As far as ethical behaviour is concerned, there is not much difference between our politicians and our judges. They are all cast in the same mould!
SJ / January 2, 2023
RR was sentenced for contempt of court I would have thought.
The motivation for the sentencing is anyone’s guess. But there were solid grounds to accuse him of contempt of court.
Let us not get sentimental with showmen politicians.
Are you tarring all judges with the same brush?
Simon / December 29, 2022
As reported Ms. Fraser is staying in Sri Lanka on a “Resident Visa”. Subject what “Conditions” that “RV” had been issued are not known to us. In addition, is that a “Visitor Visa” or a “Resident Visa”? Has Ms. Fraser “Notified” her county’s Embassy after arrival, especially if she intended for a “Long Stay” in the country for a “Specified” object? Under normal terms and conditions, any visa could be withdrawn with or without giving reasons, however on special considerations as to protect the interests of the country. That could have been why “Appeal Court” rejected her initial application. These intervening “Facts” are not known to us.
As regards, the “Weligama Rape Case”. Has she reported the matter to UK Embassay in Colombo and got their assistance and intervention when she knew the “Law Enforcement” was not taking action, but subjected her to harassment? If not why? The above report does not disclose any facts on that matter.
Justice Jayawardane who happens to be a Lawyer for “Basil” is not a strong case to debar him from hearing this case. However his “Instructions” to Court Registrar could be argued, but that is not going to seriously alter the case in defense of the “Deportation” order.
Simon / December 29, 2022
Continued 2… This subject of “VISA” is a matter that any country has to “Administer” on a very serious note, and, if allowed to be “Abused” and “Misused” that could lead to many problems internally and outside. As I said earlier, a “Visa’ (of whatever type) is a “Privilege” and must not be loosely interpreted as a “Right”. The “Issuing” country has its prerogative “Rights” and the “Conditions” under which the visas are issued are very many. A case in point was when a “Nice” of JRJ (at which time he was the President) who entered the USA on a “Visa” was “Refused” entry at the border and “Debarred” entry for a period of ten years. That could not be even “Appealed”.
Of course, Sri Lanka, with respect to “Enforcement” is “UNIQUE”. Recently, it was reported that a large number of “Visa Holders” are engaged in doing “Business” in the country. Even a “FOREIGN CITIZEN” could become an MP and a “State Minister” and even “Claim” a “Diplomatic Passport” through the President of the country. Even the PM could ask such “Visa Holders” to participate in “Aragalayas”, as in this reported case.
Yet, those are NOT and must NOT be ALLOWED to contest a case of “WITHDRAWAL” of a Visa.
Fakeculturebug / December 30, 2022
Legal—–technical—-political—–Judicial—point of law indeed.We willl get there eventually. Just that it takes us a little longer .
Yankee doodle do it again, do it again, do it again and again
Kanapathy Varunan / December 29, 2022
It may be appropriate to read the article written by K.Anaga, under the heading “Judging the Judges’ which appeared in the Colombo Telegraph on the 15th. August 2020.
Mahila / December 29, 2022
How will this country be considered and with independent Justice and Jurisprudence, when you such malpractices by Superior courts in SL!! No wonder UNHRC wanted hybrid courts for HR violations!!
leelagemalli / December 30, 2022
The irony is that you only stand up against real humanists like Ranajan Ramanayaka and innocent people who stole “a coconut” from neighboring gardens etc.
All these judges are by the way, not from the outside but born and raised in the culture of SRILANKA.
If they were wondering if they were following the “Attorney Disclaimer Policy” they would commit “harakiri” on the spot.
When it comes to high criminals born of RAJAPAKSHE genes, contempt of court is also taken as a joke word in these paragraphs.
leelagemalli / December 29, 2022
Dear Sensitive Readers,
There is no shame or expectation of respect from officials to reduce evil behavior in Sri Lanka .
There are many hypocrites of various natures in that hell today.
The Rajapaksas (now the most used term is synonymous with all the big crimes in this country) are involved in everything including the country’s judiciary, court issues, what can we expect? I think it’s in their genes. If people are shy and respectful, will they worship Rajapaksa after that Boxing Day 09 May 2022?
I am surprised that this is the real situation, an innocent Ranjan Ramanayake (former MP/minister/a true humanist of rarity) was jailed for contempt of court for 18 months with severe punishment. At the same time, Mahinda Rajapaksa is the man who has not forgotten that Maha Dawal (Mahinda Jarapaksa) misled the court judges and allowed him to enjoy complete impunity. So that’s why this country is called wonderland/wonderful people.
leelagemalli / December 29, 2022
What an insult he had to do….. Almost every citizen of this country will ignore the fact that the courts are not functioning.
The lawyers said that even the registrar was responsible for not questioning the irregularity order of not calling a case before the due date.
If that being the paragraph information in prevailing law, Why can’t good lawyers continue their fight against the repeated injustices in the courts of this country?
It is because they too just deliberately forget them in a few days.
He must be responsible for the missing documents.
In a civilized country, this would not be possible. I have had court cases against my previous Employers. There, they were charged with the highest punishments. The responsible judge for such civil issues, considered all what he could, within the law provisions being more supportive to the victimized parties.
Simon / December 30, 2022
Dear LM: I appreciate your consistency in the criticism leveled against the “Rajapakses”. Having said that, I am still wondering why proposals are not suggested to get rid of this “Cancer”. It is no secret that “Rajapakses” are still in power. Even with Ranil W at the helm, there is no solution in sight to get rid of this menace. Instead, Ranil W has become the “PROXY” to carry on regardless to “Protect” the “Rajapakses”.
In this regard, I would request you to read the Colombo Telegraph article titled “The Gota -Ranil Pact: Revealed” dated August 5, 2019. In reading these “Revelations”, do you honestly TRUST Ranil W? Please note, the facts stated in this article were during “Yahapalanaya” time of Ranil W still being the PM.
Ajith / December 29, 2022
Justice?????? in Sri Lanka??????
Unfortunately majority of the people, Majority of the Buddhists do not bother about Justice. Recently, Minister Rajapaksa told he is prepared to release some Tamil Political Prisoners and waiting for the response from the affected parties (Gota) who has to agree with releasing them. We all know Gota released a military commander and a parliamentarian without such response from affected parties. This is Sri Lanka. They are above the law.
So, unless British government interfere in this matter, even her existence become questionable.
SJ / January 2, 2023
“Unfortunately majority of the people, Majority of the Buddhists do not bother about Justice. “
Do the majority of other people care any more?
Did anyone bother with injustice under LTTE rule?
People are concerned only to the extent that it is their business in some way.
Raj-UK / December 30, 2022
We proudly claim that SL is a Buddhist country with a ‘sanga saba’ of Buddhist monks advising the govt. What hypocrisy, but more than that, it is the average Buddhists (apart from a few concerned true Buddhists), who are responsible for the current lawless state we are in now by looking the other way & allowing the status quo to continue. Regret to say, we have become a country of selfish & self serving bum suckers with no shame & integrity.
A few years ago, a Russian tourist was gang raped & her boyfriend murdered in public by a political crony of the Rajapakses, & even Cameron, the then UK PM, walked out in disgust from a meeting with MR when he refused to bring the culprits to justice. This was on newspapers & TV in UK, & now, another foreigner is being harassed & allegedly gang raped as well. At a time when SL is on its knees begging for aid & depending on tourism, don’t these bum sucking yobs know anything about diplomatic relations? No doubt the UK & other foreign embassies are keeping an eye on the developments of this case & I wouldn’t be surprised if SL is blacklisted as a tourist destination if this lawlessness continues. In fact, a colleague of mine who was planning to visit SL for a long time, decided to spend his Christmas holidays in the Maldives, & not in SL as planned earlier.
cugan / January 1, 2023
Who exactly damaging and destroying
And r aping the mother for turns, all in the name of and safeguarding, champions, super humans
God may comes in any day but not IMF though in this juncture ask Gana akka Thirupati…..
Asking for system change from whom and who is it for ….people are majority enjoy and adopt this lovely system they preserve