BY FAIZER SHAHEID Courtesy Ceylon Today

The current regime came to power promising to restore democracy, human rights, and rule of law while eradicating corruption, nepotism, and impunity. Thirty months later, the government appears to be struggling to escape after ensnaring itself. Rule of law was one of its foremost slogans it carried forth, and for this the Courts required to have an independent judiciary and a brilliant enforcement mechanism.

However, to this date, no major arrests have been made, and all this is while a popular Attorney-at-law, Nagananda Kodituwakku, takes on the entire system, claiming that tampering of the judiciary has been recurring over a long period of time.

Background

Attorney-at-law Nagananda Kodituwakku is renowned for his famous case against the defeated candidates of the August 2015 elections, who sought to re-enter through the back door of Parliament by resubmitting themselves through the National List. In his case, he named Thilanga Sumathipala, Mahinda Samarasinghe, S. B. Dissanayake, Lakshman Yapa Abeywardena, Angajan Ramanathan, A.M.H.M. Lebbe, and Vijith Vijayamuni Zoysa of the United People’s Freedom Alliance (UPFA), M.H.M. Navavi of the United National Party (UNP), Sunil Handunnetti and B.N.R. Weerakoon of the Janatha Vimukthi Peramuna (JVP) as defeated candidates who re-entered Parliament after the 2015 elections.

He claims they re-entered Parliament through a Constitutional loophole set in Article 99A, which reads, “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.” Article 99A was founded on the premise of the Fourteenth Amendment to the Constitution, which Kodituwakku claims violates Article 3 of the Constitution on franchise of the people, and thereby Article 83, which requires a referendum if certain provisions of the Constitution are to be amended. His petition claims that Article 14 should hence not be recognized as to have amended the Constitution.

In a letter addressed to the President of the Bar Association of Sri Lanka, dated 10 July 2017, Kodituwakku claims there had been frequent tampering of the judiciary which had also led to the enactment of the Fourteenth Amendment to the Constitution.

Fourteenth Amendment Controversy

Attorney-at-law Nagananda Kodituwakku claims that Article 99A was only enacted through two-thirds of the members of Parliament and ascent by the Speaker on 24 May 1988. He claims it came through because the Executive and Legislature had deliberately compelled the Judiciary to sing to the tunes of the Executive. He claims that an investigation revealed that a 12-member Parliamentary Select Committee (PSC) was appointed in 1983 headed by its then Prime Minister, Ranasinghe Premadasa who was appointed to look into necessary changes to franchise and elections. He claims that the proposed 99A and Fourteenth Amendment of the PSC did not contain any provision on defeated candidates. However, President of the time, J.R. Jayawardene had presented a distorted Fourteenth Amendment to the Supreme Court of Sri Lanka, and Kodituwakku goes on to claim, it was accompanied by a letter to the Chief Justice at the time, Parinda Ranasinghe dated 8 April 1988.

Subsequently, a five-judge bench was appointed to look into the proposed amendment, which was neither published in a Gazette nor placed in the Order Paper of Parliament. Only one concerned citizen had taken it upon himself to file action against the case, and that too was promptly rejected by the Court without stating any reasons on the very day it was filed. According to the letter of Kodituwakku, the Court’s response was: “We have considered the respective submissions made in regard to this matter, and our determination is that Clause 3 and Clause 8 (Clauses that permitted party secretaries to appoint rejected candidates 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.”

There is no reasoning provided in the Court’s response, as is required by Article 123 of the Constitution. Kodituwakku claims this is because of well-founded records of intimidation of judges at the time, and it was likely the decision of the Judges was made under duress. He cites a report published by the International Commission of Justice in 1984 where it is said that J.R. Jayewardene had found the Supreme Court to be a hindrance to his policies and deliberately made life difficult for them if they did not comply with his wishes.

He further claims that there were two bills on the Fourteenth Amendment in circulation at the time, and he cites a speech made by Prime Minister of the time, Ranasinghe Premadasa. In this speech, Premadasa is alleged to have questioned if the Fourteenth Amendment was the one they had already discussed about, or another, which was in circulation and different from what he referred to. He also refers to a further speech where Premadasa clarifies the position of the PSC in respect of the Fourteenth Amendment, and the speech is said to have had no reference to a clause on rejected candidates.

Kodituwakku had claimed that this was a deliberate attempt to defraud the people of their Constitutional Rights.

Follow up

Taking into account the circumstances, Kodituwakku claimed he had made a formal application to Chief Justice at the time, K. Sripavan on 26 August 2015. However, Chief Justice Sripavan had declined to make an order and referred to Justice Chandra Ekanayake, who also wanted no part of it. She therefore referred the application to Justice Priyasath Depp who finally referred to Justice Eva Wanasundara. Justice Wanasundara had refused Kodituwakku on the grounds that observations of the Court only needed to be communicated to the President and Speaker and nobody else. Thereafter, Kodituwakku had made another request to Justice Sripavan on 10 September 2015 and the entire Supreme Court Special Determination Record SC/SD/02/1988 was released.Kodituwakku claims that he had thereafter produced overwhelming evidence of a great Constitutional fraud which had robbed Sri Lankans of their Constitutional Rights before Justice Sripavan. However, Justice Sripavan had turned down the request to have a full bench stating that the issue was not of national importance, although he had apparently acknowledged the flawed decision of the Fourteenth Amendment judgement.

Consequent to refusal, Kodituwakku had made a second request to the then Chief Justice by way of a motion. However, Justice Sripavan had declined to make a ruling and in lieu of that stated the motion amounts to obstruction of justice and interference in the due administration of justice. He had further taken action to circulate the motion to consider if Kodituwakku should be suspended from legal practice. In response, Kodituwakku filed a further motion against Chief Justice Sripavan and Justice Eva Wanasundara stating that the action initiated by the Chief Justice was intimidatory and amounts to abuse of judicial power. He also cited provisions of the UN Principles on the Role of Lawyers which require that judges permit lawyers to pursue their functions without intimidation and harassment. He had requested a bench of seven judges without Chief Justice Sripavan and Justice Eva Wanasundara to hear his case.

Following this saga, Chief Justice Sripavan stepped down from the National List case and asked for it to be heard by a bench of which he was not a part.

Judges repeatedly intimidated

Although the country believes in the doctrine of separation of powers (Executive, Legislature, and Judiciary), all three of the powers had repeatedly encroached on the powers of the others. Parliament too has made use of its privileges to make abstract comments on the conduct of duties of the judiciary, while the Executive has abused his power to make appointments as a mode of controlling the judiciary.

Very recently, UN Special Rapporteur for the independence of judges and lawyers, Monica Pinto had expressed rather embarrassing views of judges and lawyers in Sri Lanka. Her report, compiled after her visit to Sri Lanka in April 2016, contained similar views of the judiciary in Sri Lanka. However, the statements fell on deaf ears. Her comments were treated in the same way the comments of UN Special Rapporteur on Human Rights and Counter-terrorism, Ben Emmerson, QC were treated by Justice Minister, Dr. Wijeyadasa Rajapakshe. He took absolutely no heed of the views expressed by either. Instead, he explained that the UN Special Rapporteur lacked calibre.

While it is good to stand your ground and defend your country, to deny that the country suffers is simply a fallacy to gain more votes.

In the past, judges had made mistakes in order to receive favours from the politicos in power. Nagananda Kodituwakku points out the controversy relating to the Fourteenth Amendment. However, much politics has been played in the judiciary over the years rather emphatically.

The appointment of Justice Shirani Bandaranayake in 1996 to the Supreme Court even though she had zero prior experience in the judiciary is a perfect example of abuse of power. Likewise, President Chandrika Bandaranaike Kumaratunga appointed a former Attorney-General, Sarath N. Silva as the Chief Justice, whereby many mistakes were made. The former Chief Justice now acknowledges his mistakes rather publicly on a political stage.

After Shirani Bandaranayake was appointed as Chief Justice, it appears that the politicians in power and the heads of the judiciary did not get along too well for a short period of time. Due to this reason, Former President Mahinda Rajapaksa had her impeached in an unceremonious fashion and appointed one of his loyalists, Mohan Peiris as the Chief Justice in her place.

The proceedings of the impeachment were ill-conceived and drew plenty of bad blood. As soon as President Maithripala Sirisena came to power, he saw to it that Mohan Peiris was sent home. However, this time, there were no impeachment proceedings. Of course, President Sirisena violated the Constitution like he did not know it existed on many occasions, but his repeated fidgeting of the judiciary is most unwelcome. In this particular context, he removed Mohan Peiris from office and appointed Shirani Bandaranayake again in his place, and then she stepped down the next day and K. Sripavan was appointed in her place. Hence, the political melodrama in the judiciary continued even after the action filed by Nagananda Kodituwakku.

Erosion of confidence in the Judiciary

Even at present, there have been claims of repeated intimidation of judges in the Court system. A well-known fact is the appointment of non-career judges to the superior courts instead of career judges. While career judges remained in their respective positions, it is often seen how certain judges are introduced from outside the system fairly often.

When President Sirisena appointed R. Kannan as a High Court Judge, it was met with rather severe criticism. Likewise, the appointment and promotion of other judges appears increasingly to depend on political backscratching rather than on merit. It has depleted the standards of the judiciary and contaminated the legal system as a whole, thereby spoiling the good work of the majority in the legal fraternity.

On 28 November 2015, the Bar Association of Sri Lanka affirmed that the judicial system had not met the confidence of the people over a period of time. This does not appear to have improved recently.

In the absence of elections, the Courts have now become the political battlefield. Cases have been filed against the appointment of defeated candidates, indefinite postponement of elections and even the existence of a National Government has been challenged. However, politics appears to infringe in each of these cases. Many of these cases are over two years old and have been repeatedly subject to judicial delays. Being so, the Justice Ministry revealed recently that there is a backlog of over 700,000 cases in the Sri Lankan Courts.

If this must change, a system ought to be introduced where the judiciary is completely independent of politics. The judiciary should be permitted to conduct its roles appropriately and idealistically, without having to succumb to political skulduggery. More often, these cases are dragged for years, and are not resolved by the time of the next election, hence wasting the valuable time of the Courts. It is also imperative that judges take serious consideration of their past mistakes and rectify them, before the people of Sri Lanka begin to identify the judiciary as a political force.

(The writer is a law tutor and an independent researcher of laws. He holds a postgraduate degree in the field of Human Rights and Democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)

(faizer@live.com)