Sri Lanka: A Nation With A Derailed Rule Of Law

By Nagananda Kodituwakku –AUGUST 10, 2017

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 04thMay 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

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