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Sri Lanka: Nagananda Filed Corruption

Case Against Judges In Top Court

April 8, 2019

Attorney-at-Law Nagananda Kodituwakku has filed a complaint against three


judges in the Supreme Court today for alleged corruption.
Mr. Kodituwakku was suspended from practising law for three years by the
Supreme Court last month. The suspension was carried out as he was found
guilty of defaming the former appeal court judge, Vijitha Malalgoda.
Below is the affidavit he submitted along with the complaint against judges
before the Bribery Commission in Sri Lanka.

IN THE SUPREME COURT OF THE REPUBLIC OF SRI LANKA


In the matter of an Application in Revision and for the exercise of the
inherent power and jurisdiction of the Supreme Court

Justice Vijith Malalgoda


Supreme Court of Sri Lanka
Complainant
SC/Rule/1/2016 Nagananda Kodituwakku
Attorney-at-Law
99, Subadrarama Road
Nugegoda
Respondent
And now between

1. Nagananda Kodituwakku
Attorney-at-Law
99, Subadrarama Road
Nugegoda
Respondent Petitioner
2. Justice Vijith Malalgoda
Supreme Court of Sri Lanka

Respondent Complainant

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

1. The Respondent Petitioner is the Respondent in the Rule matter No 01 of


2016 who will be hereinafter referred to as the ‘Petitioner’ and the
Complainant Respondent is the Complainant in the said Rule Matter who was
then the President of the Court of Appeal and now a judge in the Supreme
Court who will be hereinafter referred to as the ‘Respondent’.
2. The Petitioner states that he is the only public interest litigation activist in
the country who fights corruption against dishonest elements occupying
public office in all three organs of the government (Legislature, Executive,
Judiciary), which includes the office of the Attorney General (AG), three
Commissioners of the CIABOC and its Director General (Commission to
Investigate Allegations of Bribery or Corruption) and also the Bar Association
of Sri Lanka (BASL).
The matters initiated in the pubic interest since return to Sri Lanka from UK,
are as follows.

Case No. Respondent Court

a. SC/FR/536/2010 Attorney General (AG) Supreme Court


b. CA/Writs/ 434/2014 Election Commission Court of Appeal
c. SC/Writs/1/2015 Attorney General Supreme Court
d. SC/Writs/5/2015 Rev the Commissioner of Elections Supreme Court
e. SC/Writs/3/2016 * 5 judges in the Supreme Court Supreme Court
f. SC/FR/344/2017 Attorney General Supreme Court
g. SC/Writs/5/2017** Attorney General Supreme Court
h. SC/Contempt/3/2017 AG, CIABOC, MPs & Ministers Supreme Court
i. SC/Writs/3/2017 Judge in the Supreme Court Supreme Court
j. SC/SD/07/2018 President, BASL Supreme Court
k. SC/Writs/30/2018 AG and CIABOC Supreme Court
l. SC/FR/338/2018 Prime Minister Supreme Court
m. SC/FR/367/2018 Speaker Supreme Court
n. CA/Writs/25/2018 Conservator General of forests Court of Appeal
o. CA/Writs/315/2018 Director General of Customs Court of Appeal

* This case was removed from the schedule of cases fixed for support on 27th
March 2018 by the Chief Justice (re: X28)

** The Supreme Court on 25th February 2019 declined to issue a mandate in


the nature of Mandamus against the CIABOC to investigate the deliberate
abuse of public office by the Attorney General. The Petitioner will challenge
the Supreme Court ruling by way of a Revision Application in due course.
The Supreme Court had ignored the fact that the AG had conferred a favour
to the Legislature by giving an illegal advice to postpone the Provincial
Council elections defying the Supreme Court determination made on 08th Sep
2017.

3. The Petitioner states that because of his uncompromising stance of single-


handedly defending the rule of law and the Constitution as per his obligations
under the Constitutional Oath (4th Schedule to the Constitution) and Article
28 (a) of the Constitution to perform the public office as an Attorney-at-Law
honestly and faithfully, he has earned many enemies in all three organs of the
government and also amongst the dishonest elements in the legal profession.
Initiation of the Rule Matter (SC/Rule/01/2016) and the punishment imposed

4. The Petitioner states that the Rule matter was initiated further to a
complaint made by the Respondent, a judge in the Supreme Court who has
been charged for judicial corruption by the Petitioner. The Supreme Court
has not allowed this case SC/Writs/3/2016 to be supported since March 2016.

5. The Petitioner states that the said Rule matter (SC/Rule/01/2016) was
initiated by the Attorney General on 11th Aug 2017 and the relevant inquiry
conducted by the Supreme Court was concluded on 18th March 2019 with an
imposition of a 3-year suspension from legal practice.

(True copies of the inquiry proceedings marked Y1 and Order in


SC/Rule/01/2016 marked Y2 are attached hereto)

6. The Petitioner states that the relevant charges leading to this Rule matter
have been framed by the Attorney General who has also been charged for
corruption by the Petitioner as referred to in paragraph 2 above. Most of
these cases have not been allowed to be supported by the Supreme Court.

Grounds for the Rule matter

7. The Petitioner states that this Rule matter is related to an answer provided
by the Petitioner in response to a question raised by the Respondent in the
open Court on 21st May 2015. The Respondent, the then President of the
Court of Appeal had rejected the Motion filed in Court on 20th May 2015 by
the Petitioner seeking the transfer of a Writ Application (CA/Writs/83/2014)
to a different Bench. The Respondent had decided to take on the matter for
hearing by himself regardless of the request made for the change of the
Bench.

8. The Petitioner states that consequent to an unpleasant experience (details of


which are explained from paragraph 21st to 29 below) he had with the
Respondent, the Petitioner had been compelled to submit a Motion with
reasons fully explained and requesting the Respondent to appoint a deferent
Bench for the cases, the Petitioner appeared. The Respondent had acceded to
such a request made in the Motion dated 09th February 2015.

(The Motion dated 09th February 2015 is attached hereto marked X2).
9. The Petitioner states that any information filed in Court becomes a public
document and thus there was no necessity to place on record through Motions
repeatedly about facts, the Respondent had prior knowledge. The Supreme
Court has also expressed its view on the statements that would affect the
public trust on the Judiciary and hence need not be mentioned in a Motion.

(ref: page 27 of the Inquiry proceedings dated 15th of May 2015 marked Y1)

10. However, the Petitioner states that the Respondent in the second occasion
on 21st May 2015, decided to take the matter (CA/Writs/83/2014) before him,
whilst questioning the Petitioner in the open Court ‘Don’t you like my face?’
(ref: page 15 of the inquiry proceeding dated 15th May 2015 marked Y1).

11. The Petitioner states that thereby the Respondent pushed him into a
situation where he was compelled to answer in the open Court ‘My Lord, I
have no confidence in you’. And then the Respondent told the Petitioner that
he would report the matter to the Chief Justice claiming that the said
statement as contemptuous.

12. The Respondent has admitted to the above facts in his evidence given at
the Supreme Court Inquiry held on 14th May 2018 (ref: page 11 of the
inquiry proceeding dated 14th May 2018 marked Y1).

a) “… There was a similar Motion filed in Court dated 20th May 2015 by the
Petitioner requesting a different Bench be appointed to hear the matter
CA/Writs/83/2014 …” (ref: page 11 of the inquiry proceeding dated 14th May
2015 marked Y1).

“… When I opened the file I saw the said Motion dated 20th May 2015 …”
(ref: page 11 of the of the inquiry proceeding dated 14th May 2018 marked
Y1).

The Respondent also admits to the content of the Motion with the following
wordings “… with due request and honour I respectfully move that this
matter be fixed for argument before another Bench…” (ref: page 22 of the
inquiry proceeding dated 14th May
2018 marked Y1).
13. The Petitioner states that the reasons for seeking a different Bench without
the Respondent is clearly explained in the paragraph 21 to 29 below.

Respondent refers the matter to the Chief Justice K Sripavan

14. The Petitioner states that on 21st May 2015 the Respondent referred the
matter to the Chief Justice K Sripavan through the Registrar of the Court of
Appeal with the following remark made on the case record.

“… Matter be referred to the Chief Justice for making a serious allegation of


contempt. Registrar is directed to send the record before the Hon’ Chief
Justice… ”

The Petitioner too refers the matter to the Chief justice

15. The Petitioner states that on 25th May 2015 in response to the said
complaint, he too was compelled to report the matter to the Chief Justice K
Sripavan through an Affidavit (ref: X10 and X11).

Chief Justice returned the file with no action taken

16. The Petitioner states that the Chief Justice took no action on the
Respondent’s complaint and returned the case record (CA/Writs/83/2014) to
the Registrar of the Court of Appeal. The remark made by the Secretary to
the Chief Justice in the case record is reproduced below.

“… I have been directed by the His Lordship, the Hon’ Chief Justice to return
the above case record (CA/Writs/ 83/2014). Please acknowledge the same …”
(ref: page 21 of the inquiry proceedings dated 15th of May 2018 marked Y1)

Respondent transfers the matter to a different Bench, which he had initially


rejected

The Petitioner states that thereafter the Respondent was compelled to transfer
the particular case (CA/Writs/83/2014) to be heard before a different Bench.
The Registrar of the Supreme Court in his evidence given before the Supreme
Court admitted that the Case CA/Writ/83/2014 was later transferred to a
Court No 206 (ref: page 22 of the inquiry proceedings dated 15th of May 2018
marked Y1)

A calculated move to stop the Petitioner from exposing government


corruption

17. The Petitioner states that as mentioned in paragraph 5 and 6 above, the
Rule matter (SC/Rule/01/2016) was framed by the Attorney General on a
complaint made by the Respondent. The Petitioner states that he is strongly of
the view that those who occupy public office in the Legislature, Executive,
Judiciary, the Attorney General, CIABOC and who have been charged for
corruption by him are apparently involved in this case to silence the Petitioner
from exposing high profile government corruption. The Attorney General and
the BASL got together to make it clear in the open Court on 24th Oct 2017
that the Petitioner should be charged for contempt for making corruption
allegations against the Supreme Court judges.

(A true copy of the Motion dated 04th January 2018 filed in the Supreme
Court in the case (SC/FR/344/2017 initiated against the Attorney General is
attached hereto marked Y3)

18. The Petitioner states further that he was aware that there was an attempt
to persecute him for fighting high profile corruption and therefore he had
informed the Chief Justice on 18th June 2018 with a Motion filed in the
Supreme Court [concerning the case SCRF/344/2017 initiated against the
Attorney General by him] about the surreptitious moves to persecute him by
the Attorney General, along with certain judges appointed to the Judiciary
from the Attorney General’s Department.

(A true copy of the Motion dated 18th June 2018 filed in the Supreme Court
in the case (SC/FR/344/2017 initiated against the Attorney General is attached
hereto marked Y4)

The Corroborative evidence on the conspiracy staged against the Petitioner

a) Double jeopardy is not permitted by law: The Rule matter was initiated
regardless of the fact that no action had been taken against the Petitioner by
the Chief Justice K Sripavan more than two years ago
b) Both Complainant and the Attorney General are charged for Corruption:
The corruption complaints made against the Respondent and the Attorney
General on 15th Feb 2015 (marked X8) and 29th July 2017 (marked X29)
respectfully are yet to be inquired into by the CIABOC.

c) Supreme Court rejects the evidence that provides protection to lawyers


fighting corruption: The evidence presented to Court on 14th of May 2018
concerning the Commonwealth Latimer House Principles and UN Basic
Principles on the Role of Lawyers by way of a Motion was rejected by the
Court further to an application made by the Attorney General.

i. “… The criminal law and contempt proceedings should not be used to


restrict the legitimate criticism of the performance of judicial functions …” –
Latimer House Principles (ref: X22)

ii. “ … Governments shall ensure that lawyers (a) are able to perform all of
their professional functions without intimidations, hindrance, harassment or
improper interference; (c) shall not suffer, or be threatened with, prosecution
or administrative, economic or other sanctions for any actions taken in
accordance with recognized professional duties, standards and ethics …” –
Principles 16 of the UN Basic Principles on the Role of Lawyers (ref: X23)

d) BASL deceives the Supreme Court: The Bar Association of Sri Lanka
(BASL) On 15th May 2018 submitted to the Supreme Court that the
International instruments referred to above (X22 and X23) had no application
in the Republic of Sri Lanka, which is a deliberate lie.

e) BASL surreptitiously redesigns its home page to deceive the Supreme Court
to punish the Petitioner: The BASL, after dropping the Principle 16 of the
United Nations Basic Principles on the Role of Lawyers redesigned the BASL
Homepage to cover up the false statement referred to above.

(In proof thereof, the BASL Home pages before and after the removal of
Principle 16 marked Y5 and Y6 are attached hereto)

f) The BASL threatened the Petitioner for initiating corruption cases against
the Judges in the Supreme Court: The BASL sends a threatening
communiqué to the Petitioner on 01st May 2018, directly referring to the
judicial corruption cases initiated against 6 Judges in the Supreme Court and
warned of an impending punishment.
“… You have alleged that there are cases filed against the judges of the
Supreme Court including retired Chief Justices, for alleged malpractices. We
are unaware of such cases filed by you and however we are yet to see the
outcome of the purported cases referred to therein. We are sure that you will
have to suffer the consequences for making false allegations against the
member of the judiciary once the judgments in the said cases, if any, are
delivered…”

(The communication addressed to the Petitioner by the President of the BASL


dated 01st May 2018 marked X26 is attached hereto).

g) The BASL defies it own Constitution to condone judicial corruption: The


BASL failed to challenge the Attorney General when he defied the Supreme
Court determination against the postponement of the Provincial Council
Elections. This made the Petitioner to charge the Attorney General
(SC/Writs/5/2017) to safeguard the independence and integrity of the
Judiciary.

h) The Chief Justice rejects the request for a fuller Bench and holds a partial
inquiry: The request made by the Petitioner in terms of Article 132 (3) (iii) for
a fuller Bench was denied and a partial inquiry was conducted into the
charges leveled against the Petitioner.

The prejudiced inquiry held by the 3-Judge Supreme Court Bench

19. The Petitioner states that, from the viewpoint of any reasonably prudent
person, the inquiry conducted into the Rule Matter (SC/Rule/1/2016) had been
patently biased and prejudiced. The supporting evidence is as follows.

a. Denying the Petitioner his constitutional right to a fair hearing: The


Petitioner was notified (ref: X30) to appear in Court at 1400 hrs on 14th May
2018 with evidence. Yet, the evidence filed in Court on 14th May 2018 with a
Motion, affidavit and documents marked X17 to X27 was rejected by the
Court and the Registrar of the Court returned the same to the Petitioner on
the following day (15th May 2018) with no reasons given
(Copy of the Motion dated 15th May 2018 returned by the Registrar marked
X31 is attached hereto).

b. Denying the Petitioner his right to legal representation: At the


commencement of the inquiry on 14th May 2018, the Court denied the
Petitioner the right to present his case through a Counsel violating the Article
13 (3) of the Constitution.

c. Denying the Petitioner his right to lead the evidence of key witnesses for the
defence: The Petitioner was not allowed to lead the evidence of the two
witnesses (Professor Rajiva Wijesinghe and Ravaya Editor Victor Ivon) for
the defence by the Attorney General.

d. Denying the Petitioner to adduce affidavits given by the said key witnesses:
The Petitioner was not even allowed to adduce the Affidavits of the two
leading witnesses (Professor Rajiva Wijesinghe and Ravaya Editor Victor
Ivon) (ref: X32 and X33).

e. Permitting the Attorney General to make unfounded allegations against the


Petitioner and denying the Petitioner of his to right to rebut: Attorney
General was allowed to make absolutely unfounded allegations against the
Petitioner at the hearing that he was a British Agent who has come to Sri
Lanka to destroy people’s trust in the Judiciary yet the Petitioner was not
permitted to counter the said allegations with evidence already filed in Court.

(A True copy of the communication dated 27 of April 2018 addressed to the


Secretary General of Commonwealth of Nation dated X24 is attached hereto)

f. The Court proposing a settlement in the midst of the trial: On 13th March
2019, whilst the Petitioner was making his oral submission he was stopped by
the Court. And after a lengthy discussion amongst them, Justice Sisira de
Arbrew proposed to the Petitioner to go for a settlement by making an
apology to the Respondent. The Chief Justice Nalin Perera told the Petitioner
that he did not wish to proceed with the inquiry as he was retiring soon and
both Justices informed the Petitioner that they did not wish to proceed with a
matter but to resolve it.

g. The Court inducing the Petitioner to make an apology: The Court


surreptitiously induced the Petitioner to make an apology to the Respondent
in writing after which the Bench withdrew.

h. The Court designing the apology to serve its own purpose: After about 15
minutes the Court resumed the proceedings and Petitioner tendered his
written apology as directed by Justice Prasanna Jayawadena who made
several amendments to the written apology. Thereafter the Court directed the
Petitioner to read out the apology to Justice Vijith Malalgoda who would be
summoned to appear in Court on 18th March 2019

i. Petitioner tendering his apology to the Respondent in the open Court: On


Monday the 18th March 2019, when the matter was taken up, the Respondent
was summoned in Court and the Petitioner was directed to tender his apology.
The Respondent accepted the apology and with the permission of the Court
left the Courtroom.

j. The Attorney General intervening in the Court-induced settlement:


Thereafter the Solicitor General, Dappula Livera, intervened and informed
the Court that despite the apology Petitioner should be punished for the
alleged contemptuous statement and also for making unfounded allegations
against the Respondent. Apparently the Solicitor General was referring to the
corruption case (SC/Writs/03/2016) filed by the Petitioner against the
Respondent.

k. The Court failing to honour its own terms of settlement. The Court then
completely negating the Court-induced settlement of the Rule matter,
permitted the Solicitor General to raise objections against the settlement and
also to make references of corruption allegations against the Respondent,
which had nothing to do with the Rule matter, which was already resolved on
the day with the Court ‘s intervention.

l. The Petitioner making his stand clear on the apology: The Petitioner then
informed the Court that the Court-induced apology has nothing to do with the
corruption allegations made against the Respondent and his apology limited
only to the answer (‘My Lord, I have no confidence in you’) given by him on
21st May 2015 further to the question ‘Don’t you like my face’ posed to him
by the Respondent. Further that the corruption charges made against the
Respondent remain unchanged with the evidence already recorded in the
Court.

m. The 3-Judge Bench abusing the Court-induced inculpatory statement, to


penalize the Petitioner: Then the Court adjourned the proceedings and
returned at 01.30 hrs Justice Prasanna Jayawardana read out the judgment,
which went on to state that the Petitioner was found guilty for the Rule matter
and therefore suspended from legal practice for a period of 3 years.

n. The flawed Judgment further stated that the Petitioner had expressly and
unconditionally withdrew the allegations he had made against the
Respondent. The Petitioner never withdrew the corruption allegations made
against the Respondent and therefore the judgment is manifestly false and
unfounded.

Two members of the general public identify the Court-induced apology as an


inculpatory statement obtained under duress

20. Eyewitness evidence: The Petitioner states that an Affidavit furnished by


two members of public who were present on both days of the inquiry (13th
and 18th March 2019) is filed in Court along with this Petition. This evidence
vividly illustrates what had exactly transpired in the Courtroom.

(The Affidavit referred to above dated 20TH March 2019 marked Y7 is


attached hereto)

Inappropriate conduct of the Respondent concerning the disappearance and


reappearance of the case Record (CA/Writs/434/2014) that led to the
Petitioner’s loss of confidence in the Respondent

21. Petitioner states that the case CA/Writs/434/2014 was filed on 15th Dec
2014 challenging the nominations of the former President Mahinda Rajapakse
for a 3rd term (ref: page 32 and 33 of Y1) seeking an interim relief suspending
the elections until the matter is heard and determined.

22. The Petitioner states that considering the urgency of the matter he was
seeking permission to support it before the Court vacation due on 20th Dec
2014. However, the case record strangely went missing and the matter was not
listed for support.

23. The Petitioner states that the Registrar of the Court giving evidence in the
Rule matter (SC/Rule/1/2016) on 15th May 2018 stated that the Registry
would not accept a case for registration unless a Petition, an Affidavit and a
Motion are duly filed in Court (ref: page 22 of Y1). Therefore, the Petitioner
states that there was no reason for the registered case record to go missing.

24. However, the Petitioner states that the case record reappeared at the end
of the month of December 2014 and it was fixed for support for 2nd Jan 2015.
The Petitioner states that the Attorney General hand-delivered a letter at the
Petitioner’s residence on 01st Jan 2015, a practice which had never been
adopted by the Attorney General (ref: page 32 of Y1).

25. The Petitioner states that it was strange that the file (Writ Application No.
434/2014) went missing at a time the then President Rajapakse was confident
of winning the election and reappeared when the opposition led by the
candidate Maithripala Sirisena who posed a formidable challenge to President
Rajapakse.

26. The Petitioner states that in his evidence given on 15th May 2018 he stated
that there were numerous requests from many concerned citizens (including
Ravaya Editor Victor Ivon and Professor Rajiva Wijesingha ref: X32 and
X33) urging the Petitioner to withdraw the case claiming that the Presidential
Election would be postponed with an interim relief prayed for was granted.
This would have allowed Rajapakse regime to remain in power. Therefore,
honoring the popular request, the Petitioner filed a motion dated 02nd Jan
2015 in Court withdrawing the Petition with the reasons fully explained (ref:
page 32and 33 of Y1).

(True copies of the affidavits given by Professor Rajiva Wijesingha and


Ravaya Editor Victor Ivon already filed in Court marked X32 and X33 and
the Motion dated 02nd Jan 2015 filed in Court marked X8 is attached hereto)

27. The Petitioner states that disappearance and reappearance of the case
record (Writ Application No. Writ/434/2014) would not have happened
without the knowledge of the Respondent who was the President of the Court
of Appeal at the time. The Respondent has been appointed by the Mahinda
Rajapakse regime in spite of heavy criticism from the then President of the
Bar Association (ref: X6) (ref: page 29 of Y1).

28. The Complainant judge himself in his evidence given in Court 0n 14th
May 2018 revealed as follows about the disappearance of the case record,
which could never have happened without his involvement in the loss of the
case record in the first place.
“… The Court vacation was I think on 20th May, may be somewhere there he
(the Respondent activist) had asked for 03 days but since the papers got lost
nothing came to me. Then his complaint was that I have involved in
misplacing the documents. Then thereafter, he had filed another set of
documents. So the moment the papers were submitted to me after he filed a
new set. I don’t know how what happened …” (ref: page 27 and 28 of inquiry
proceedings marked Y1)

29. The Petitioner states that he had lost the confidence in the Respondent
after this experience concerning the case No Writ/434/2014.

Complaint to Corruption Commission against the Respondent

30. The Petitioner states that in his evidence he also stated that the
Respondent’s conduct concerning the case (CA/Writs/434/2014) was an
unlawful favour afforded to the then Executive President enabling him to stay
in office unlawfully. Such conduct is a punishable offence under the
corruption law and therefore he was reported to the Bribery and Corruption
Commission (CIABOC) on 15th Feb 2016, for the abuse of the judicial office
for improper purposes.

(A true copy of the Affidavit dated 15th Feb 2016 furnished to the CIABOC
and the covering letter accompanied it marked X8 and X9 are attached
hereto)

Respondent charged for Judicial Corruption in the case (SC/Writs/3/2016)

31. The Petitioner states that he has charged the Respondent along with 4
other Supreme Court Judges for judicial corruption before the Supreme
Court. The Respondent was charged with irrefutable evidence presented for
conferring unlawful favours to the then Executive President.

BASL President condemns the appointment of the Respondent to the Court of


Appeal by President Mahinda Rajapakse in 2014

32. The Petitioner states that the appointment of the Respondent as the
President of the Court of Appeal in 2014, by the then President Mahinda
Rajapakse outside the due process was vehemently condemned by the then
President of the Bar Association, questioning the integrity of the Executive for
its interference with the judicial appointments

(A true copy of the statement published in the Sunday times dated 14th
September 2014 marked X6 is attached hereto)

Judgment made per incuriam

33. The Petitioner therefore states that the order made by the Court marked
Y7 is manifestly flawed as much as the said Order has been made per
incuriam.

34. The Petitioner states that there are precedents, where it has been held that
the Court should exercise its power of inherent jurisdiction to rectify errors,
in similar circumstances as in the Petitioner’s case in the interest of dispensing
of justice.

a) As per the judgement in Jayaraj Fernandopulle vs. Premachandra de Silva


and others [1996 (ISLR).70, “ the Court has no statutory jurisdiction
conferred by the Constitution or by any other law to rehear, review, alter or
vary its decisions and as a general rule, no Court has power to rehear, review,
alter or vary any judgment or order made by it after it has been entered.
However, the Court has inherent power to correct decisions made per
incuriam.”

When a person invokes the exercise of inherent powers of the Court, that are
adjunct to existing jurisdiction to remedy injustice, two questions must be
asked by the Court:

i. Is it a case, which comes within the scope of the inherent powers of the
Court?
ii. Is it one in which those powers should be exercised?

The attainment of justice is a guiding factor, and an order made on wrong


facts, given to the prejudice of a party, will be set aside by remedying the
injustice caused.
b) In the Revision Application [SC 209/2007 (FR)] made by the 1st
Respondent, P.B Jayasundara, who had been found guilty by the Supreme
Court for abuse of office held in trust, and paid a sum of Rs 500,000.00, being
compensation to the state, it was held inter alia as follows.
Per Hon. Justice Ms Thilakawardene, (dissenting)
‘… It is important to recognise, then, that the Supreme Court’s broad powers
over matters of Fundamental Rights stem, not from an overzealous
interpretation of judicial power, but from an understanding of the unique
nature of these matters for which the Court has been empowered to protect.
Put simply, Fundamental Rights applications are qualitatively different from
other types of appeals heard before this Court and warrant greater latitude
with respect to their review and redress in order to encompass the equitable
jurisdiction exercised in these applications…’
Per Hon. Justice Marsoof,
“While our hierarchy of courts is built on an assumption of fallibility, with
one, two or sometimes even three rights of appeal, as well as the often used
remedy of revision, being available to correct errors that may occur in the
process of judicial decision making, in the absence of such a review
mechanism, the remedy provided by Article 126 is fraught with the danger of
becoming an “unruly horse”, and for this reason has to be exercised with
great caution”. This Court has generally displayed objectivity, independence
and utmost diligence in making its decisions and determinations, conscious
that it is fallible though final. The decision of this Court in the Fernandopulle
case stressed the need for finality, and very clearly laid down that this Court is
not competent to reconsider, revise, vary or set aside its own judgement or
order (in the context of a fundamental rights application) except under its
inherent power to remedy a serious miscarriage of justice, as for instance,
where the previous judgement or order was made through manifest error (per
incuriam).
Per Hon. Justice Sripavan,

The decision of the Supreme Court is to be considered as final. The judgement


once delivered cannot be reviewed by the same Bench or by any other division
of the Court except in the limited circumstances as set out in the case of
‘Jayaraj Fernandopulle and others vs De Silva and others (1996) 1 SLR page
70, also vide Bandula Ravindranata Jayantha & eight others vs Ms
Chandrika Bandaranaike Kumaratunge & others S C Minutes of 03rd Aug
2009)

Tarnishing the public image of the activist Petitioner

35. The Petitioner states that he has been made to suffer severe mental pain
and trauma by the Court-induced apology that was abused by the Court to
penalise the Petitioner. This has afforded the corrupt elements who occupy
high profile public office and also in the legal profession to affront the
Petitioner in the pubic eye. One of the derogatory statements published in the
social media by a lawyer and another one was published by the administer of
the UPFA Facebook page which has a huge patronage

The remark made by an Attorney-at-Law names Srinath Perera published in


the social media is reproduced below.

z''' k.dkkao úrh jf.a t,sfh lE.y, n¨l=laflla jf.a Widúfha iudj .;a; yeá oelal kï
yskdfjkafk fldhs me;af;kao lsh,d ysf;kj '''z

The Other one manage by UPFA gave a wide publicity to the Court induced
inculpatory statement with Chief Justice image published to affront the
Petitioner in the public eye.

The said remark made by the Attorney-at-Law Srinath Perera together with
the UPFA page published in the Facebook is attached hereto marked Y9 and
Y10)

36. The Petitioner states further that the said inappropriate act committed by
the Bench of 3 judges in the Supreme Court including the Chief Justice was
intentional and it has paved the way for all print and electronic media (local
and foreign including the BBC) to give maximum publicity undermining
Petitioner’s integrity and honesty before the public eye, for no fault
committed by him.

(The defamatory remarks published in the local and foreign electronic media
marked Y11, to Y15 are attached hereto)

Petitioner expresses his disappointment against the abuse of Court-induced


apology by the 3-Judge Bench to the Chief Justice in the open Court

37. The Petitioner states that on 27th March 2019 he had to attend the
Supreme Court as the Respondent in the SC/Rule/03/2017 before a Bench
comprising of Chief Justice Nalin Perera, Justice Prasanna Jayawardana and
Justice Dehideniya. The Petitioner states that he had to express his regrets
over the abuse of the Court-induced inculpatory statement to impose a 3-year
ban from legal practice by the Bench of 3 judges comprising of Chief Justice
Nalin Perera, Justice Prasanna Jayawardana and Justice Sisira de Arbrew in
the Rule matter (SC/Rule/1/2016).
Patent miscarriage of justice and the Court’s inherent power to rectify the
injustice

38. The Petitioner states that in view of the foregoing, it is clear that there has
been a grave miscarriage of justice caused to the Petitioner. Therefore, the
Petitioner states that there exists a just and reasonable cause for the Court to
exercise its inherent power to intervene and revise the Order made by the
Court in the case SC/Rule/1/2016 on 18th March 2019.

39. The Petitioner, reserves the right to furnish any further material as the
Petitioner might be able to obtain including the certified copies, which may
pertain to the aforesaid matters but not currently available in further proof
thereof.

40. The Affidavit by the Petitioner is appended hereto in support of the


averments contained herein.

41. The Petitioner states that he has not invoked the Jurisdiction of the
Supreme Court previously in respect of the matter pleaded herein concerning
the Rule Matter SC/Rule/01/2016 and pleads all marked documents attached
hereto be deemed to be part and parcel hereof.

Wherefore the Petitioner prays that Your Lordships’ Court be pleased to;

a) Accept the Petition and list it for support

b) Issue Notice to the Respondent

c) Grant INTERIM RELIEF suspending the Order marked Y2 on the Rule


Matter until the final determination of this matter

d) Set aside the Order dated 18th March 2019 marked Y2 and order an
inquiry afresh

e) Grant Costs;

f) Such other and further reliefs as to Your Lordships’ Court shall seem meet;
Nagananda Kodituwakku
Public Interest Litigation Activist & Solicitor (England & Wales)
4th April 2019
Posted by Thavam