Judiciary Uncategorized

Petition to the Supreme Court to Vacate Singarasa Judgment

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

SC/ FR/No:244/16

In the matter of an application under and in terms of Articles 17 and 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka

Nagananda Kodituwakku, Attorney-at-Law,
No 99, Subardrarama Road, Nugegoda.

Petitioner

  1. The Attorney General,
    The Attorney General’s Department, Colombo-12.
  2. Ranil Wickremesinghe,
    The Prime Minister
    The Prime Minister’s Office,
    No: 58, Sir Ernest De Silva Mawatha, Colombo 07.
  3. Karu Jayasooriya The SpeakerThe Parliament of Sri Lanka Parliament Approach Road Sri Jayawardenapura
    Kotte
  4. The Attorney General,
    The Attorney General’s Department, Colombo-12.Respondents
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TO: THE HON’ CHIEF JUSTICE AND HON’ JUSTICES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

On this 22nd of July 2016

1. The Petitioner is a citizen of the Democratic Socialist Republic of Sri Lanka an Attorney-at-Law by profession and a Public Interest Litigation Activist.

(In proof thereof, a true photocopy of the Bar Association ID No K 632 marked as “X1” is respectfully annexed hereto)

Parties to the Action

  1. The Petitioner respectfully states that the 1st Respondent above named is the Attorney General, who has been so named in terms of Article 35(1) of the Constitution; for the Executive President Maithripala Sirisena, who is responsible and answerable for discharging of this Constitutional Duties as well as to the actions and/or inactions of the 02nd Respondent, who is the incumbent Prime Minister, the 3rd Respondent is the Speaker of the Parliament of the Republic of Sri Lanka and the 4th Respondent is the Attorney General who is mandatorily made as a party to this application in terms of Article 134 of the Constitution and in terms of the Rules of Your Lordships’ Court.
  2. The Petitioner respectfully states that this petition is presented to Your Lordships’ Court as per his constitutional oath subscribed to in accordance with Schedule 4 of the Constitution to uphold and defend the Constitution and the law and as well as in exercising his Fundamental Duties as a citizen to uphold and defend the Constitution and the law; and to further the national interest and to foster national unity; to work conscientiously in his chosen occupation and to respect the rights &

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freedoms of others as ordained by Article 28 (a, b, c & e) and also in public interest; which are severely threatened by certain actions/inactions more fully described below for which the 1st and 2nd Respondents are directly responsible which amounts to violation of the Constitution, which constitutes “administrative and executive action” within the meaning of Article 17 and Article 126 of the Constitution, causing an imminent infringement of Fundamental rights of the Petitioner and all other citizenry duly guaranteed by Articles 12(1) and 14(1)(g) and inalienable sovereign rights of the citizens enshrined in Article 3 of the Constitution.

The Cause of Action

4. The Petitioner respectfully states that on the 07th July 2016, the 02nd Respondent, requested a Ruling from the 3rd Respondent on the constitutionality of the Supreme Court Judgment (SC/SPL/LA/182/99) – popularly known as the Singarasa case – decided on 15th Dec 2006 on the basis that;

  1. a)  the jurisdiction for constitutional competence of the President to accede to the optional protocol of the ICCPR is with the Parliament and not with the Supreme Court.
  2. b)  the pronouncement of the Supreme Court that accession to the Optional Protocol of the ICCPR needs a two-third majority of Parliament and also approval at a Referendum is nothing but a perverted interpretation of the Constitution.
  3. c)  the Court does not even have to exercise the judicial power of the people and the Parliament has it, the Court does it on its behalf.
  4. d)  and therefore, the Supreme Court does not have the power to violate the basic tenets of the Constitution; which the Supreme Court has been unfortunately doing in the last decade.

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(The relevant section of the Parliamentary Hansard dated 07th July 2016 marked X2 is attached hereto)

People are sovereign, not any organ of the government

  1. The Petitioner states that Sri Lanka is a Representative Democracy where the sovereignty is in the people and only the people enjoy inalienable sovereign rights which include legislative, executive and judicial powers and the parliament or any other organ has supremacy whatsoever over one another in the process of exercising people’s sovereign rights purely on trust.Each organ shall work within the defined area
  2. The Petitioner states that the Sri Lanka is a Representative Democracy and all members in the Legislature are under duty to respect and regard the doctrine of separation of powers. And each organ shall understand that no political principle has been more central than the separation of powers to the evolution of proper constitutional governance, which shall otherwise fail as in Sri Lanka. The separation of power within the agencies is therefore, an essential element, which assumes that the government must be checked internally by the creation of autonomous centres of power that will develop an institutional interest, which however, not respected in the Republic of Sri Lanka for unacceptable self-centred political reasons.
  3. The Petitioner states that in Sri Lanka, the Parliament that exercises people’s legislative power purely on trust seemingly think it is superior over the other two organs whereas each organ should work within defined areas of responsibility so that each keeps a check on the actions of the others for the preservation of good governance.
  4. The Petitioner states that in Sri Lanka it is evident that the Parliament continues to abuse the legislative power of the people to override the judicial power of the people that the judiciary exercises on trust with due respect and regard to its constitutional duty of protecting, vindicating and enforcing the judicial power and the rights of the people enshrined in the Constitution.

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  1. The Petitioner states that undue interference with the judicial power of the people by the parliament and the executive in this manner has been experienced by the people for many decades as the corrupt elements in the legislature and the executive always view that an independent judiciary would be a risk for their own survival, which was amply demonstrated with the unacceptable interference with the composition of the membership in the Constitutional Council (with seven out of ten members appointed from MPs) that recommends appointment to the Superior Court System.People have lost faith in the legislature and the executive
  2. The Petitioner respectfully states it is unfortunate that in Sri Lanka those who are elected or appointed to the offices in the legislature and the executive habitually violate their constitutional obligations with a scant respect to the Rule of Law and the Constitution and therefore the people continue to lose their trust and confidence in the said two organs that abuse their offices to make self-serving decisions with no respect or regard to the impact of such decisions on future generations. And therefore, the Petitioner states that from the viewpoint of the citizens the total independence of the justice system is an absolute must to stop further erosion of the democracy in the Republic of Sri Lanka.Heavy responsibility vested in the Judiciary
  3. Therefore, the Petitioner respectfully states that there is a heavy responsibility vested in the Judiciary to be upright, fearless and independent in the protection of inalienable sovereign rights of the people and to become a symbol of hope for the people of Sri Lanka, developing a normative regime, insisting that no government can act arbitrarily but must act reasonably and justly in the public interest, on pain of its action being invalidated by judicial activism.
  4. Therefore, Petitioner respectfully complains to Your Lordships’ Court that in the event the 2nd Respondent’s actions are unchecked and allowed to conduct himself in an inappropriate manner inducing the 3rd Respondent to make a ruling that

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would amount to interference of the administration of justice, and it would naturally make thing worse, since such a ruling would amount to patent violation of the Constitutional norm – the separation of powers – and breach of inalienable sovereignty in the people enshrined in the Constitution.

13. Therefore, the Petitioner respectfully states that in the event of such a ruling is made by the 3rd Respondent it shall be a clear breach of Article 03 of the Constitution, that the elected or appointed representatives, including the 2nd and 3rd Respondents have undertaken to honour with their Constitutional oath as per 4th Schedule of the Constitution, assuring FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY, the essential characteristics of a representative democracy that they have undertaken to preserve.

Imminent Violation of Fundamental Rights guaranteed by Article 12 (1)

14.The Petitioner states that therefore in this backdrop the statement of the 2nd Respondent referred to in paragraph 4 above and the action proposed by him, becomes a direct violation of the inalienable sovereign rights of the people, enshrined in Article 3 of the Constitution and if the President of the Republic, (who is represented in this action by the Attorney General as the 03rd Respondent), being the Head of the State and the Head of the Government [Article 30(1), who is required to ensure the Constitution is respected and upheld [Article 33(1)(a)];

  1. a)  fails to prevent the course of action demanded by the 2nd Respondent, referred to in paragraph 4 above, it shall be a breach of Petitioner’s Fundamental Rights and rights of the other citizenry of the Republic guaranteed by the said Article 12(1).
  2. b)  fails to prevent the course of action demanded by the 2nd Respondent, referred to in paragraph 4 above, it could lead to imminent violation of Fundamental Rights of the Petitioner guaranteed by Articles 14(1)(g) Fundamental Right to freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or

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enterprise that would similarly affect the other citizenry of the Republic as well in their chosen spears of life.

15.The Petitioner respectfully seeks Your Lordships’ Court permission to submit further evidence and other like material, which were not available and/or beyond the reach of the Petitioner at the time of filing this petition.

16.The Petitioner very respectfully states that, the Petitioner has not previously invoked the jurisdiction of your Lordships’ Court in respect of the matter hereinbefore set out, and pleads that documents attached hereto marked as ‘X1’ to ‘X2’ are deemed to be part and parcel hereof.

17.An affidavit of the Petitioner is annexed hereto in support of the averments contained herein.

WHEREFORE, the Petitioner very respectfully prays that Your Lordships’ Court be pleased to;

  1. Grant Leave to Proceed to this application in the first instance,
  2. Make Order to issue Notice on the Respondents,
  3. Grant Interim Relief with an Order directing the 3rd Respondent suspending anyfurther action on the request made by the 2nd Respondent referred to in

    paragraph 4 of the Petition until final determination of this Application

  4. Nominate a Special Bench for the hearing and disposal of this Application in termsof Article 132(3) (iii) of the Constitution.
  5. Make Order for expeditious hearing of this application.
  6. Make Order declaring that the fundamental rights of the Petitioner and citizenry ofthe Republic, guaranteed under Articles 12(1), of the Constitution, are about to be infringed by one or more of the Respondents, in violation of the dictates of the Constitution.

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  1. Make Order declaring that the fundamental rights of the Petitioner and other citizens, guaranteed under Articles 14(1)(g), of the Constitution, are about to be infringed by one or more of the Respondents, in violation of the dictates of the said Constitution.
  2. Declare that the 2nd Respondent has no legal authority and/or power, to question the legality of any determination and/or order made by the Supreme Court.
  3. Declare that the 03rd Respondent has no legal authority or sanction, to invalidate any determination and/or order made by the Supreme Court, without adhering to the due process as established by the law.
  4. Vacate the obviously impugned Supreme Court Judgment (SC/SPL/LA/182/99) – popularly known as the Singarasa case – decided on 15th Dec 2006 referred to in paragraph 4 of the Petition, exercising the inherent power and jurisdiction of the Supreme Court.
  5. Make further and other Just and Equitable orders, as Your Lordships Court shall seem meet, under and in terms of Article 126(4) of the Constitution.
  6. Grant Compensation,

m.Grant Costs and,
n. Such other and further reliefs as to Your Lordships Court shall seem meet.

The Petitioner & Public Interest Litigation Activist

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