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.

Kayleigh Fraser with her Counsel Nagananda Kodituwakku

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)