In this action Lawyer Kodituwakku requests the Supreme Court to suspend all National List MPs who had been rejected by the people at the General Elections, pending final determination of this case. The lawyer, citing relevant provisions in the Constitution that warrants cases of public interest be heard by the full bench of he Supreme Court, requests the Chief Justice K Sripavan to nominate all judges of the Supreme Court to hear this case. He claimes that the Supreme Court is under duty to repair the grave damage inflicted on the sovereign rights of the people, whose judicial power it exercises on trust.
The Petition filed in Court (SC/Writs/05/2015), reveals the circumstances under which the 14th amendment, that had clearly violated people’s sovereign right of franchise, had been made law by unlawful means.
There had been a 14th amendment approved by the All party Select Committee of the Parliament after 5 years (1983-1988) of deliberation, and in the Article 99A introduced by the said amendment there is no provision whatsoever for nominating defeated candidates as MPs under the National List by party secretaries. However, it had been clandestinely added to the amendment approved by the Parliament by President JR Jayewardene and he had referred it to the Supreme Court denying the people any access to the said bill which had never been published in the Gazette for the information of the citizens before it was referred to the Court for its decision on the constitutionality to see whether it violates any of the entrenched provisions in the Constitution and require approval of the people at a Referendum.
Evidence filed in Court reveals that President Jayewardene had employed dirty tactics to keep the Supreme Court under check. And in fact according to the report furnished by the International Commission of Justice, President Jayewardene had publicly challenged the Supreme Court for interfering with his policies. He had vowed to teach the judges a lesson and had frightened them attacking their homes with employment of mobs. The report says all this had been done to create a judiciary that is more pliable to his wishes, which he had achieved with the immunity enjoyed under Article 35 of the Constitution, and if not all such actions might well have been criminal offences.
Petitioner states that Judges would have readily observed the violation of the entrenched provision of Article 3 when President Jayewardene referred the 14th amendment bill to the Supreme Court with a new provision (Article 99A) introduced therein, empowering the party secretaries to elect defeated candidates as MPs. However, the judges had succumbed to the pressure brought upon them and had declared that the said provision does not violate Article 3 of the Constitution and need not require approval of the people at a referendum. Yet, the judges have refused to give reason for their determination, which made their decision invalid under Article 123 of the Constitution.
In the Petition it is further stated that no such bill can be made law with a certification by the speaker unless certified by the Executive President after people’s approval is obtained at a referendum. Therefore the Petitioner argues that the said amendment has no force in law at all, effectively nullifying all appointments made from the rejected candidates under the National List provision void.
The Petitioner submits that no amendment that violates any of the entrenched provisions, which include the franchise (Article 3), can be made law unless people surrender their sovereign rights at a referendum, which is mandatory under Article 83 of the Constitution, which had never occurred in this case.
Therefore, the lawyer and the public interest rights activist, Nagananda Kodituwakku asserts that any law enacted in violation of the Article 83, would not become a valid law, as provided by 82(6) of the Constitution.