Nagananda Kodituwakku

Attached is a document filed in the Supreme Court to support case (due on 10th July 2017) against the APPOINTMENT OF DEFEATED/REJECTED CANDIDATES AS MPs BY THE PARTY SECRETARIES under the National list provision in the Constitution.

 IN THE SUPREME COURT OF   DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application under Article 125, 140 read with Article 104H(1) of the Constitution of Republic of Sri Lanka for Mandates in the nature of Writ of Certiorari and Mandamus

 

Nagananda Kodituwakku

99, Subadrarama Road

Nugegoda

Petitioner

Vs

SC/WRITS/05/2015

1. Commissioner of Elections

Elections Secretariat,

P.O. Box 02, Sarana Mawatha,

Rajagiriya

 

2. General Secretary – UPFA

307, T B Jayah Mawatha

Colombo 10

 

3. General Secretary

United National Party

400, Sirikotha

Pitakotte, Kotte

 

4. General Secretary

People’s Liberation Front

464/20, Pannipitiya Road,

Pelawatta,

Battaramulla

 

5. General Secretary,

Ilankai Tamil Arasu Kadchi

30, Martin Road

Jaffna

 

6. U J Tilanga Sumathipala

Member of Parliament (UPFA)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

 

 

 

 

7. B Mahinda Samarasinghe

Member of Parliament (UPFA)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

8. S B Dissanayake

Member of Parliament (UPFA)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

9. Lakshman Yapa Abeywardena

Member of Parliament (UPFA)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

10. Angajan Ramanathan

Member of Parliament (UPFA)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

11. A M H M Lebbe

Member of Parliament (UPFA)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

12. G Vijith Wijayamuni Zoysa

Member of Parliament (UPFA)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

13. M H M Navavi

Member of Parliament (UNP)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

14. Sunil Handunnnethi

Member of Parliament (JVP)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

15. B N R Weerakoon

Member of Parliament (JVP)

Parliament Approach Road

Sri Jayawardenepura Kotte

 

16. Attorney General

Attorney General’s Department

Colombo 11

______________________________

Motion duly acknowledged                                                                       Respondents

 

 

 

To:         THE HONOURABLE CHIEF JUSTICE AND THE OTHER JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

 

On this 27^th March 2017

 

Whereas the Petitioner, filed this Writ Application against the Commissioner of Elections on 13^th Oct 2015, discharging his constitutional duty to respect the rights of the other citizenry [Article 28 (e)], to challenge the appointment of rejected candidates at the General Election held in August 2015 as MPs, who are not legally qualified to be appointed through the National List

 

2. And whereas this Writ Application was initiated invoking the jurisdiction of the Supreme Court in terms of Article 104H of the Constitution, which requires that such applications shall hear and finally dispose of by the Court within two months of the filing of the same [104H (2)]

 

3. And whereas now it is over more than 1 ½ years since filing this Writ Application with no relief for the citizenry is in sight

 

National List appointments made under Article 99A are unlawful 

 

4. And whereas this application is supported by overwhelming evidence of abuse of the people’s sovereign rights by dishonest persons occupying office in the Legislature and Executive who had fraudulently inserted the following clause in the 14^th Amendment to the Constitution, permitting defeated candidates to be nominated through the National List as MPs

 

…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 the that election …” (hereinafter referred to as the ‘flawed clause’) to the Constitution now referred to as Article 99A of the 14^th amendment

 

5. And whereas the ‘National List concept’ has been introduced to the Constitution strictly in conformity with the recommendations pertaining to the Franchise and Elections made by Parliamentary Select Committee (PSC) appointed for the purpose on 08^th July 1983 (Ref: P17– page 95)

 

6. And whereas the said PSC has made no recommendation for any defeated candidates to enter Parliament through the National List provision (Article 99A) in its recommendations referred to as 14^th Amendment to the Constitution (P18 – page 100)

 

Distorted Bill referred to the Supreme Court by the then Executive President in 1988

 

7. And whereas the National List provision approved by the PSC had been distorted with a smuggled clause referred to above, permitting defeated candidates to enter the Parliament through the National List and introduced in brackets to the Article 99A and a typed written document (P36 – page 231) identified as 14^th Amendment Bill had been referred to the Supreme Court on 08^th April 1988 by the then Executive President without the same being published in the Gazette for the information of the constituency at least seven days before it was placed on the Order Paper of the Parliament and without being placed in the Order Paper of the Parliament in clear violation of the Articles 78 and 82 of the Constitution

 

8. And whereas the then Executive President had apparently found that the Supreme Court was a hindrance to his policies and had made the Court more pliable to his wishes (P31 at page 219)

 

9. And whereas in the given circumstances a 5-Judge Bench of the Supreme Court had been compelled to deny any opportunity (Ref P38 – page 234) for the citizens to make objections against the said ‘flawed clause’ smuggled into the Article 99A, which had clearly violated the people’s sovereign right of franchise enshrined in Article 3 of the Constitution hence required approval of the people at a referendum if it were to be amended (Article 83)

 

10. And whereas the said 5-Judge Bench had made a determination referred to below on 18^th April 1988 (ref P39 – page 238) on the said typed written document that the said ‘flawed clause’ was NOT inconsistent with the provision of Article 3 giving no reasons whatsoever and therefore did not require the approval of the People at a referendum, which is mandated by Article 83 of 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”

 

11. And whereas the said determination expressed by the Court with no reasons given justifying the said determination, apparently been made under moral duress making it void is ab initio ovid (P30 – page 214).

 

Court declining to issue the 14A determination record in Aug 2015

 

12. And whereas the then Chief Justice K Sripavan and two other senior judges declined to make an Order on the application made to obtain a certified copy of the said flawed determination made by the Supreme Court (SC/SD/02/2017) and finally on 26^th Aug 2015 Justice Eva Wanasundara made a following Order, rejecting application made to obtain a certified copy

 

…Communications between the President and the Chief Justice and the Observations of the Court, which are communicated to the President and to the Speaker, need not be disclosed to Mr Kodituwakku. The request contained in the Motion is therefore refused…”

 

13. And whereas, as a result of a further request made by the Petitioner to the then Chief Justice K Sripavan on 10^th Sep 2015 justifying the issuance of the determination record (Ref P33 – page 221), a certified copy of the said Determination Record was made available to the Petitioner

 

Two 14^th Amendment Bills presented to the Parliament in 1988

 

14. And whereas the investigation conducted on the matter by the Petitioner revealed that there had been 2 Bills on the 14^th Amendment circulated in the Parliament, which had been clearly stated by the Prime Minister (Ref: P22 at page 122 – Parliamentary Hansard dated 04^th May 1988), who had presented the Bill on 14^th Amendment in the Parliament

 

Hansard confirms the intention of the lawmakers to adapt APSC recommended 14A

 

15. And whereas the Hansard dated 04^th May 1988 (ref P22 – page 111) confirms that there was no such clause (‘flawed clause’), permitting Party Secretaries to nominate rejected candidates through the National List, in the draft bill tabled by the Government (Prime Minister) and approved by the Parliament
16. And whereas the, then Prime Minister R Premadasa and the then Minister of National Security, Lalith Athulathmudali, the only two members took part in the debate held on 04^th May 1988 and confirmed that there was no such clause (‘flawed clause’), permitting Party Secretaries to nominate rejected candidates through the National List, in the draft bill approved by the Parliament.

 

Parliament approves the APSC recommended 14A in 1988

 

17. And whereas, apparently the due process as specified in the Constitution to amend or repeal the Constitution had not been followed, the Bill that contained the smuggled clause (permitting defeated candidates to enter the Parliament through the National List) and approved by the Supreme Court, had not been debated at the Committee Stage and only the Bill, which contained the Article 99A as approved by the PSC had been introduced by the Prime Minister and approved by the house with no such amendment permitting the defeated candidates to enter the Parliament accommodated through the National list (Ref: P22 – page 122, 123, 125)

 

Speaker certifies the National List provision (Article 99A) in 1988 without being approved by the people at a referendum

 

18. And whereas instead of the Bill approved by the Members of Parliament on 04^th April 1988, the Speaker on 24^th of May 1988 ratified a different Bill, that contained the ‘smuggle flawed clause’ (not presented by the Prime Minister and placed in the Order Paper) and not debated and approved by the House at the Committee Stage, (Ref: P22 – page 111)

 

19. And whereas the said process adopted by the Speaker had patently violated the provisions of the Article 82 and 83 of the Constitution, which mandates that no Bill to amend any of the entrenched provisions (including the Article 3 of the Constitution) becomes law unless approved by the people at a referendum and certified by the President [Article 82 (5)] and hence shall not be deemed to have amended the Constitution or be so interpreted or construed unless enacted in accordance with the requirements as set out in the Article 82 (6) of the Constitution and therefore the said flawed clause is ab initio void

 

Flawed opinion expressed against the request for a Full Bench hearing

 

20. And whereas the request made by the Petitioner to the former Chief Justice K Sripavan in terms of Article 132 (3) (iii) of the Constitution, for the hearing of this matter before a Full Bench of the Supreme Court, especially considering the fraudulent manner the said ‘flawed clause’ had been inserted to the Article 99A of the Constitution and approved by a 5-judge Bench in the Supreme Court (apparently under moral duress) violating the sovereignty in the people, which naturally makes it a matter of great National importance, and yet the former Chief Justice, without being fair, reasonable and violating the public trust doctrine ruled that it was not a matter of Public and General Importance setting out no reasons at all and hence making it ab initio void

 

 

Need for a Full Bench to review the flawed Order made by the 5-juge Bench in 1988

 

21. Wherefore, the Petitioner with utmost respect and honour to Your Lordship, requests that the obviously impugned per incuriam ruling given by the former Chief Justice be reviewed, considering the General and Public Importance of this matter that challenges the authenticity of the National List provision in the Constitution (Article 99A), and the obviously flawed ruling made by the 5-judge Bench of the Supreme Court on the said ‘smuggled clause’ (P39 – page 238) which goes to the very root of the Representative Democracy of the Republic of Sri Lanka and the sovereign rights of the constituency enshrined in Article 3 of the Constitution, and appoint a Bench of 7 Judges of the Supreme Court in terms of Article 132 (3) (iii) to hear and determine this case on any one of the following days.

 

1. Wednesday the 03^nd of May 2017
2. Friday the 05^th of May 2017
3. Monday the 08^th of May 2017

 

Copies of this Motion have been duly served on the Attorney General and the 3^rd Respondent by recorded delivery and the proof of delivery is enclosed herewith.

 

 

N Kodituwakku, The Petitioner in Person  

 

 

[Attorney-at-Law (Sri Lanka) Solicitor (UK) and Public Interests Litigation Activist]

 

 

  

 

_________________________________________________

Request to Constitute a Bench of 7 judges refused.

This is to be taken before a normal bench

 

Priyasad Dep

Chief Justice

02^nd June 2017