Colombo Telegraph

National List Abuse Challenge Goes Down Again

The hearing of the case filed in the Supreme Court challenging the appointment of defeated candidates as MPs abusing the National List provision in the Constitution by the Rights Activist and lawyer Nagananda Kodituwakku, has once again been postponed till 19th September 2016.

Chief Justice K. Sripavan

In the Motion filed in Court on 11th May 2016, the Petitioner-activist states that the Chief Justice has failed to honour his Constitutional obligation to hear and determine this important case within the specified period of two months, as required by Article 104H of the Constitution, effectively allowing the defeated candidates at the 2015 General Election appointed as MPs through the National List to occupy the office unhindered.

In this case filed in the Public Interest, the petitioner-activist relies on the 14th Amendment Bill approved and presented to the Parliament on 08th March 1988, which does not contain the clause “… being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party or group at that election…” in the Article 99A of the Constitution approved by the Parliament. Presenting the evidence in Court, the petitioner-activist submits that, President J R Jayewardene had surreptitiously referred another typed-written undisclosed Draft Bill to the Supreme Court on 08th April 1988 with the said disputed clause fraudulently inserted to the Article 99A of the Constitution. The said bill however, had not been presented to the Parliament or gazetted for the information of the people, a process,that is mandatory for any Bill intended to amend the Constitution.

However, the Supreme Court on 18th April 1988, despite one citizen informing the Court that the said J R Jayewardene’s typed-written Draft Bill had not been gazetted and requesting a copy of draft be made available to him to raise observations, refused the request and had approved the said clause on the same day that it did not violate the peoples’ sovereign right of franchise protected in Article 3 of the Constitution, which cannot be denied without a mandate obtained from the people at a Referendum.

The activist challenged this Court ruling as unlawful, on the basis that the Court had made the said ruling apparently under moral duress after the judges had been intimidated by the Executive President J R Jayewardene, which was reported by the International Commission of Jurist (ICJ) in April 1984, well in advance of the said flawed ruling was made by the Supreme Court. ICJ states that “he (President J R Jayewardene) found that the Supreme Court a hindrance to some of his policies … and that … he was deliberately seeking to teach the Judges a lesson in order to make them more pliable to the Executive’s wishes”

In background the Petitioner submits that the said clause inserted to the Article 99A of the Constitution by fraudulent means has no force in law and shall not be deemed interpreted or construed as an Amendment to the Constitution [Article 82 (6)], in the absence of the due process (not Gazetted and not tabled in the Order paper of the Parliament) being followed, which is mandatory in terms of Chapter XII of the Constitution.

Filing this Petition in Court on 13th Oct 2015, the Activist Petitioner made a request to Chief Justice K Sripavan to appoint a Full Bench to hear this case in terms of Article 132 (3) (iii) of the Constitution. However the Chief Justice ruled that in his opinion the abuse of National List is not a case of National Importance.

The Petitioner-Activist has challenged the Chief Justice’s opinion on the basis that it is absolutely flawed, unfair and unreasonable and that the Chief Justice has abused the office to confer an unlawful benefit to the Executive President Maithripala Sirisena.

Now the Chief Justice has been charged for Judicial Corruption in another case (SC/Writs/03/2016) by the Petitioner-Activist and the Chief Justice has withdrawn from the hearing of both cases, effectively allowing rejected candidates occupy various high profile offices in the Parliament, making the democracy a mockery in the ‘Democratic Socialist Republic of Sri Lanka’.

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