Colombo Telegraph

Sri Lanka: A Nation With A Derailed Rule Of Law

By Nagananda Kodituwakku

Nagananda Kodituwakku

I can clearly see the apprehension expressed by some concerned citizens about my untimely departure from Sri Lanka with the decision taken to abate the case filed in the Supreme Court challenging the appointment of 10 rejected candidates through the National List.

Judiciary is under intimidation of the Executive

Sri Lankan judiciary is not at all independent and has been compelled to perform under tremendous pressure and intimidation particularly in cases where interests of criminal elements occupying office in the Legislature and the Executive are contested. Challenging of the illegal appointments made to the Parliament through the National List is clearly, one such high profile case involving, all three organs of the government, Executive, Legislature and Judiciary.

There is no valid provision of law to appoint defeated candidates as MPs

The evidence presented to Court in this case provides irrefutable evidence that in 1988 there had been two Bills circulated in the Parliament for the purpose of amending the Constitution (14th Amendment) to introduce the National List (Article 99A). One Bill approved by the Parliamentary Select Committee (PSC) and another fraudulent one with a clause unlawfully inserted within brackets to the said provision by the then President JR Jayewardene permitting rejected candidates too to enter the Parliament through the National List. This act is perceived as a committing of a constitutional fraud against the people usurping their undeniable constitutional right of franchise by illegal means.

Five Judges in the Supreme Court approve the flawed clause

Investigation conducted into this constitutional fraud revealed that President Jayewardene had abused his office to intimidate the Judges of the Supreme Court adopting various bullying tactics, which included deployment of hooligans to attack their houses. As International Commission of Jurists termed ‘President Jayewardene had found the Supreme Court is a hindrance to his policies, and has made it more pliable to his needs’.  In this backdrop he had referred a Bill (14A) to amend the Constitution to the Supreme Court on 08th April 1988, with a clause unlawfully inserted within brackets to the PSC approved Article 99A in the 14th Amendment, accommodating defeated candidates as MPs through the National List. Then a Five- judge of the Supreme Court completely ignored a request made by a citizen who appeared before the Court to obtain a copy of J R Jayewardene’s typed-written document, enabling him to raise objections challenging the Bill. In the affidavit made to the Court the Petitioner had informed the Court that the J R Jayewardene’s document was neither tabled in the parliament nor published in the gazette. But the Court has certified (ruling reproduced below) that the clause inserted to PSC-approved Article 99A by J R Jayewardene was not inconsistent with the Constitution.

“We have considered the respective submissions made in regard to this matter, and our determination is that the Clause 3 and Clause 8 (Clause that permitted party Secretaries to appoint rejected candidates as MPs through the National List) of the Bill are not inconsistent with the Provisions of Article 3, read with Article 4(a) and 4(e) of the Constitution, and therefore do not require the approval of the People at a Referendum

Supreme Court refuses to release the 14A Special Determination Record

The evidence contained in the Supreme Court Special Determination Record (SC/SD/2/1988) was a clear revelation of this Constitutional fraud, which should have been averted by the Court but not inclined apparently under moral duress.  Therefore a request was made to the Registrar of the Supreme Court to obtain a certified copy of the said record, in order to challenge the National List appointments. However, 3 judges in the Court including the Chief Justice K Sripavan declined to make a any ruling on this request and finally Justice Wanasaundara made a ruling that I was not entitled to obtained a copy of the said determination record which contained confidential information, whereas there in nothing private or confidential in court records. However, after the media revealed this, the Supreme Court reversed its decision and finally released the entire record of the said Determination Record.

Prime Minister R Premadasa rejected the 14A with the flawed clause

At the committee stage of the 14A on 04th May 1988, the Prime Minister R Premadasa who presented the Bill to the Parliament on behalf of the government, vehemently rejected the 2nd Bill (4) with the flawed clause inserted to Article 99A by the President J R Jayewardene, violating the Parliamentary Standing Orders (PSO 65), and in very unambiguous terms supported only the Bill approved by the PSC headed by him (refer to the Hansard proceedings reproduced below), which was finally approved by the Parliament subject to some minimal changes.

“… Mr Speaker, what is the 14th Amendment to the Constitution? I have to raise this question, because there has been a discussion of a 14th Amendment, which, as I understand later, is different from the Amendment to the Constitution that I speak of …“. (Parliamentary Hansard dated 04th May 1988)

“… The 14th Amendment Bill presented today is the result of the deliberations of the Select Committee on Franchise and Elections. Mr Speaker, the provisions of the 14th Amendment, provides for 29 National Members on the basis of the votes of the people in the entire country but without a Cut-Off Point or bonus seat. These 29 will be allocated to the different parties contesting the election, in proportion to the votes received by each such party at the National Level. The Names of these party nominees are known before hand. In fact their names are published in the Gazette immediately after the closing of nominations. Therefore, the voters are aware of the identity of the candidates of the different parties who are to be elected as National Members. Let me therefore make it very clear, that the fourteenth amendment presented today, is the result of the decisions taken by the Select Committee on Franchise and Elections, which concluded its sittings on 29th February 1988. It is based on the Report adopted by this Committee …” (Parliamentary Hansard dated 04th May 1988)

Speaker certified the 14A with a flawed clause

Yet, despite the 2nd Bill was clearly rejected and not approved by the Parliament (refer to the Hansard recording reproduced below), the Speaker certified the ‘Bill not approved by the Parliament’ which contained the foreign clause inserted within brackets by the President J R Jayewardene, allowing defeated candidates to enter Parliament through the National List. This is a serious act of crime, which amounts to commission of a constitutional fraud against the Nation.

The Parliament divided under Standing Order No 43: Ayes 128 Noes 2. Bill, as amended accordingly read the 3rd time passed

Bill as amended, accordingly read the Third time, and passed.

Constitution defends the entrenched rights of the people

The Republican Constitution (1978) in very clear terms stipulates that no law that affects the sovereign rights of the people, which include the people’s sovereign rights to franchise (entrenched in Article 3) becomes a lawful amendment to the Constitution and shall not be construed or interpreted so, unless due process provided by the Constitution (Article 82) has been followed to deny such protected rights, which requires approval by the people themselves at a referendum forfeiting their sovereign rights (Article 83).

Challenging the unlawful National List appointment

The constitutional norm the ‘Representative Democracy’ means that election of people to the Legislature to represent the people who elect them and in no way recognises appointments of those who are rejected by the people as MPs, which is simply seen as a mockery of Democracy.

Therefore, presenting these irrefutable evidence to the Supreme Court all 10 appointments (listed below) made by the Election Commissioner (5), accommodating rejected candidates by the people, were challenged (SC/Writs/5/2015) after the General Election – 2015.

U J Tilanga Sumathipala – Member of Parliament (UPFA – National List nominee)

B Mahinda Samarasinghe – Member of Parliament (UPFA – National List nominee)

S B Dissanayake – Member of Parliament (UPFA – National List nominee)

Lakshman Yapa Abeywardena – Member of Parliament (UPFA – National List nominee)

Angajan  Ramanathan – Member of Parliament (UPFA – National List nominee)

A M Hisbullah M Lebbe – Member of Parliament (UPFA – National List nominee)

G Vijith Wijayamuni Zoysa – Member of Parliament (UPFA – National List nominee)

M H M Navavi – Member of Parliament (UNP – National List nominee)

Sunil Handunnnethi – Member of Parliament (JVP – National List nominee)

Bimal N R Weerakoon – Member of Parliament (JVP – National List nominee)

This case was supported by overwhelming evidence of abuse of Presidential immunity by President J R Jayewardene to usurp the people’s sovereign right to franchise in 1988, completely circumventing the due process established by the Constitution, which provides that the franchise conferred in the people cannot be usurped unless people themselves surrender it by way of a mandate given at a Referendum.

Request made for a Full Bench Hearing was rejected

However, when this constitutional fraud was challenged before the Supreme Court (SC/Writs/05/2015) the then Chief Justice, K Sripavan declined the application made on 13th Oct 2015, under the Constitution [(Article 132 (3) (iii)], seeking appointment of a Full Bench of the Supreme Court to hear this case of paramount national importance. When a second request was made on 26th Nov 2016, seeking to review of the obviously impugned ruling, on the basis that the Court was exercising the people’s judicial power on trust and the Chief Justice has no unfettered discretion and is required to exercise discretion vested in the office reasonably and fairly. The Chief Justice, K Sripavan, considered that the said application was and interference of the administration of justice and on 26th Nov 2016 called the observations of other judges to suspend me from practice.

Chief Justice charged for Judicial Corruption

However, the conduct of the Chief Justice K Sripavan, clearly showed his incapacity to defend the Constitution and the Rule of Law apparently under pressure, and hence he was charged for Judicial Corruption on 29th March 2016, for abuse of office to confer a benefit or favour to himself and/or to the Executive betraying the trust placed in the office by people. Further to being charged for Judicial Corruption a request was made again on 18 March 2016 to review his ruling and to appoint a Fuller Bench and the Chief Justice withdrew from taking part in any further proceedings in the case with the following minute made in the Record on 02nd April 2016.

“… Since the Petitioner has filed SC/Writs/03/2016 on 29th March 2016, citing me as one of the Respondents, I do not wish to here this application. Please have the matter listed before a Bench of which I am not a member… ”

Thereafter, when Chief Justice, K Sripavan was retired an application afresh was made to Chief Justice Priyasath Dep on 27th March 2017. Yet, the Chief Justice too rejected the request on 02nd June 2017 and refused to appoint a full bench to hear and determined the case with the following ruling made.

‘… Request to constitute a Bench of seven judges refused…   

Supreme Court grants Full Bench hearing for a private matter

In the meanwhile on 14th June 2017, further to a similar request made by Geetha Kumarasinghe, MP was favourably considered as a matter of National Importance and full bench was appointed to hear that case by the Chief Justice on 14th June 2017.  In the said case (SC/Appeal/2017), Geetha Kumarasinghe, MP, had challenged ruling given by the Court that her election as a MP was illegal, on the basis that she was a dual citizen. The decision given by the former CJ and the extant CJ is manifestly flawed for the simple reason that the Chief Justice do not exercise any unfettered powers under the Constitution and the discretionary power vested in the office is required to be fairly and reasonably with reasons set out for any decisions made 

Sri Lankan Judiciary functions under the control of the Executive

This act is perceived as an abuse of the office of the Chief Justice to reject a matter of paramount importance initiated purely in the National Interest, whereas there is a bounden duty cast in the court to rectify the serious constitutional fraud involving 5 judges of the Supreme Court (which cannot be overturned by 3 judges), the Legislature and the Executive.   

Incumbent Chief Justice too charged for Judicial Corruption

Under the Republican Constitution (1978), the Court System is under duty to respect the doctrine of public trust and to protect, vindicate and enforce the people’s judicial power according to the Constitution and the Rule of Law. However, it is apparent that the Judiciary in Sri Lanka is not free to exercise power vested in the office and incapable of defending the Constitution and the Rule of Law apparently under pressure. And this sorry plight of the Judiciary was presented to a distinguished gathering of concerned citizens at which the former Secretary to the Presidential Commission of Inquiry into Serious Acts of Fraud and Corruption (PRECIFAC), Lacille de Silva, in the interest of protecting the sovereign rights of the people, including the judicial power, that the judiciary exercised purely on trust volunteered to defend it and on 17th July 2017, Lacille de Silva, exercising his democratic rights charged the incumbent Chief Justice Priyasath Dep too for judicial Corruption, for abuse of office public office of Chief Justice to confer a benefit or favour to himself and/or to the Executive betraying the trust placed in the office by people.

Judiciary lacks accountability and ignores its constitutional obligations

The supreme law of the land, the Constitution, very clearly dictates that any such matter affecting peoples right to franchise shall be hear and determine within a matter of two months from the day of filing such an action (Article 104H). Yet, this case that challenged the unlawful National List appointments was not even supported for the last two years and any prudent person may perceive that this conduct of the Judiciary completely inappropriate and lacks any form of accountability and amounts to betrayal of the judicial power of the people that the judiciary exercise purely on trust.

In another words this failure on the part of the judiciary justifies the citizens of Sri Lanka seeking justice elsewhere, in the United Nations Human Rights Council, demanding a hybrid justice mechanism to try human rights cases, compelling the government of Sri Lanka to concede that the there is a lack of accountability in the administration of justice in the Republic of Sri Lanka.

And in these circumstances an application was made to the Bar Association of Sri Lanka, supported by 134 lawyers, to convene a Special General Meeting to address the serious situation faced by the Judiciary that seems to be incapable of giving effect to its constitutional obligations, restoring people’s trust and confidence in the Judiciary and the Executive Committee of the Bar Association is yet to make a decision on the said request. 

Conspiracy to impose professional sanctions for exposing fraud and weaknesses of Execrative, Legislature and Judiciary

In the meanwhile, I have received a plausible and credible information that I have been targeted to face professional restrictions by the Attorney General, who has also been charged for corruption for abuse of office to confer illegal favours to accused who hold public offices in the Legislative and the Executive.

I am aware that all these hostile actions have been initiated against me, solely due to conscientiously and persistently pursuing matters concerning the protection of people’s sovereign rights in keeping with Constitutional obligations of my chosen occupation as an Attorney-at-Law, which is also a duty vested in any citizen under the Constitution (Article 28)

All Lawyers, performing public interest litigation are protected by Latimer House Principles and UN Basic Principles on the Role of Lawyers and both these instruments require the member states to protect the interest of lawyers to perform their duty free from intimidation, hindrance, harassment or improper interference with a right to take part in public discussion of matters concerning law, the administration of justice and the promotion and protection of human rights without suffering professional restrictions and obstruction from functioning independently by reason of their lawful actions.

Intimidation and threats against upholding the Rule of Law

However, I have realised that my life was not safe in Sri Lanka due to the intimidation and threats to life directed at me, which I have already reported to the Inspector General of Police (7). Clearly there is a kind of a fear psychosis spread across the society, making people refrain from coming forward and exercising their guaranteed constitutional right to free speech without subject to any intimidation by those criminal elements holding public offices in the Legislature and the Executive.

Under the given circumstances, I had no other option but to decide not to proceed with the matter and left the country on 31st July 2017 after filing a Motion at the Supreme Court Registry seeking the Court to make an Order to abate the proceedings.

*Nagananda Kodituwakku –Attorney at Law (Sri Lanka) & Solicitor (UK)

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