PETITION

IN THE SUPREME COURT OF THE

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application under Article 140 of the

Constitution read with Section 24 of the Commission to Investigate
Allegations of Bribery or Corruption Act No 19 of 1994 for a
Mandate in the nature of Writ of Mandamus

Nagananda Kodituwakku
99, Subadrarama Road
Nugegoda
Petitioner
Vs
SC (Writs) No: 03/2017
1. Commission to Investigate Allegations of Bribery or Corruption
No 36 Malalasekera Mawatha,
Colombo 07

2. T B Weerasuriya (Chairman) of the Commission

3. W Lal Ranjith Silva (Member) of the Commission

4. Chandranath Neville Guruge (Member) of the Commission

5. Sarath Jayamanna
The Director General

All at

No 36 Malalasekera Mawatha,
Colombo 07

6. Eva Wanasudara
Supreme Court Judge
Supreme Court of Sri Lanka
Colombo 12

7. The UN High Commissioner for Human rights

Palais des Nations
CH-1211, Geneva,
Switzerland

Respondents
 PETITION

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

The Petition of the Petitioner above named, citizen of Sri Lanka, appearing in person states as
follows;

Parties to the Application

1. The Petitioner is a Public Interest Litigation Activist and a lawyer by profession in Sri Lanka
and in the UK.

2. The 1st Respondent is the Commission to Investigate Allegation of Bribery or Corruption

(hereinafter sometime referred as Commission), the 2st Respondent is the Chairman of the
Commission, the 3nd and 4rd Respondents are the members of the Commission, the 5th
Respondent is the Director General of the Commission, 6th is a Judge in the Supreme Court and
7th Respondent is the UN High Commissioner of Human Rights (OHCHR).

Execution of Petitioners obligations under the Constitution

3. The Petitioner states that, he presents this Petition to the Supreme Court purely in the National
Interest, in exercising his humble and faithful duty, as per his Constitutional Oath, to uphold
and defend the Constitution and the Rule of Law as set out in Article 28 (a) of the
Constitution; and to work conscientiously in his chosen occupation [Article 28(c)], with due
respect to the rights and freedom of other citizens that are being habitually violated due to
dismal failure on the part of one or more of the Respondents above named, described and
referred to hereinafter.

The Law relating to Corruption in the Republic of Sri Lanka

4. The Petitioner states that the Bribery Law that introduced the offence of Corruption, as per the
United Nations Convention against Corruption, provides that any person holding any public
office does any act to confer a wrongful or unlawful benefit, favour or advantage on himself or
 PETITION
to another person, or that any wrongful or unlawful benefit, favour or advantage will be
conferred on any person does, or forbears to do, any act, which he is empowered to do by
virtue of his office, participates in the making of any decision by virtue of his office as a person
holding public office induces any other person, by the use, whether directly or indirectly, of his
office to perform, or refrain from performing, any such act, shall be guilty of the offence of
corruption and shall be liable to imprisonment for a term not exceeding ten years or to a fine
not exceeding one hundred thousand rupees or to both such imprisonment and fine (Section
70 of the Bribery Act).

Representative Democracy and Judicial Power of the people

5. The Petitioner states that the Constitution of the Republic of Sri Lanka recognizes the
Government of Sri Lanka as a Representative Democracy and vests immutable judicial power
of the people in the judiciary to ensure that the other two organs do respect their
Constitutional obligations to the people. The peoples judicial power so vested in the Judiciary
is to be exercised purely on trust [Article 4(3)], which shall be exercised independently, subject
to the Supreme Law of the Land, the Constitution. No judicial officer is above the law and on
being appointed to the Judiciary they do take an oath under the 4th Schedule of the Constitution
to perform their judicial duty faithfully and according to the Constitution and the Law.

Constitution and Commonwealth Latimer House Principles on three organs of the

Government

Constitution Obligations

6. The Petitioner states that the Constitution of the Republic of Sri Lanka requires the judges to
uphold, vindicate and enforce the judicial power of the people (Article 105), and envisages the
judiciary to be vibrant, upright, and absolutely independent in the administration of peoples
judicial power without compromising integrity. Therefore the people expect the Judiciary to be
a symbol of hope for the people, particularly at a time when the peoples sovereign rights are
being openly abused by the other two organs of the government.

The need to respect Separation of power Doctrine

7. The Petitioner states that in the former British Colonies, including Sri Lanka, there have been
serious issues concerning the independence and integrity of the justice system as it has been
 PETITION
found that the Executive holds a firm grip on the judiciary making the democracy unworkable.
This has compelled the British Commonwealth of Nations to formulate principles on all three
branches of the Government to be adopted by all member Nations with due respect to the
separation of powers.

Commonwealth of Nations Latimer House Principles

8. I state that Sri Lanka being a member of the Commonwealth of Nations has ratified the
Commonwealth Latimer House Principles on the three branches (Legislature, Executive and
Judiciary) of the Government, the relevant provisions of which are cited below.

a. Judges are accountable to the Constitution and to the law, which they must
apply honestly, independently and with integrity. The principles of judicial
accountability and independence underpin public confidence in the judicial
system and the importance of the judiciary as one of the three pillars upon
which a responsible government relies.

b. An independent, impartial, honest competent judiciary is integral to upholding

the rule of law engendering public confidence and dispensing justice

c. Interaction, if any, between the Executive and the Judiciary should not
compromise judicial independence.

d. Establishment of an independent, effective and competent legal profession,

which is fundamental to the upholding of the rule of law and the independence
of the judiciary.

e. The Criminal Law and contempt proceedings should not be used to restrict
legitimate criticism of the performance of judicial functions.

(A true copy of the Commonwealth of Nations Latimer House Principles concerning the
Independence of the Judiciary marked X1 is attached hereto)

UN Corruption Treaty and Judicial Corruption

9. The Petitioner states that the Forward to this treaty provides that the corruption (which
 PETITION
includes the judicial corruption Article 2 of the Convention) undermines the democracy,
the rule of law and also erodes the quality of life and identifies the developing world
where the corruption hurts the poor, disproportionately undermines the governments
ability to provide basic services to the needy.

(A true copy of the Forward to the United Nations Convention against Corruption by
Secretary General Kofi A Annan marked X2 is attached hereto)

Bar Association criticizes the state of the Judiciary

10. However, in Sri Lanka, the Petitioner states that over a period of time, as also closely
observed by the Bar Association of Sri Lanka, there exists corruption in the judiciary,
violating its Constitutional obligations and the Commonwealth Latimer House principles.
The President of the Bar Association on 14th Sep 2014 openly questioned the appointment
of Additional Solicitor General Vijith Malalgoda as the President of the Court of Appeal and
asked whether the Government wanted a subdued judiciary that makes orders on the will
and desires of the Executive and if that be the case, there was no need for a judiciary and
the government can rule with Executive Order and declared as follows. It is the
solemn function of the judiciary to ensure that no constitutional or legal functionary
or authority acts beyond the limits of its power, nor there be no any abuse or misuse
of power...

(True copies of statement issued by the President, Bar Association reported on Sunday Times
on 14th Sep 2014 and another press statement issued by the President of the Bar Association
on 28th Nov 2015, expressing its concerns about the state of the Judiciary failing to win the
confidence of the people resulting in an erosion of confidence in the system as a whole
marked X3 and X4 is attached hereto)

President J R Jayewardene in 1988 violates the Constitution to usurp sovereign

rights of the people to appoint defeated candidates through the National List

11. The Petitioner states that further to the public outcry against the appointment of rejected
candidates at the Parliamentary Election - 2015 to the Parliament through the National
List (disregarding the National Lists duly published in the Gazette by the political parties),
he as a public interest litigation activist undertook an investigation, to ascertain the
credibility of the manner that had paved way for the introduction of the clause
 PETITION
(permitting Party Secretaries to appoint rejected candidates as MPs through the
National List) to the Article 99A of the Constitution in 1988 without a peoples
approval obtained at a Referendum. The Petitioner states that law (Article 83 of the
Constitution) does not permit such a clause which directly interferes with the peoples
sovereign right of franchise protected by the entrenched provision of Article 3 without
due process been adhered to as set out in Articles 78, 82, 83, 84 and 121 of the
Constitution.

Enactment of Article 99A by the President JR Jayewardene with a hidden motive

12. The Petitioner states that during the process of the said investigation as referred to in the
paragraph 11 above, he was able to discover the following.

a) There had been a Parliamentary Select Committee (PSC) appointed by the

Parliament on 08th of July 1983 to consider necessary changes to the franchise
and elections. The PSC finally produced and approved the 14th Amendment Bill to
the Constitution introducing a new concept of National List through the Article
99A in the said Bill.

b) In the said provision (Article 99A) there was no clause permitting the Party
Secretaries to appoint rejected candidates through the National List.

c) On 04th of May 1988 the Parliament had approved the said 14th Amendment to the
Constitution, which contained the Article 99A, with no amendment made to it at
the Committee Stage.

d) However, on 24th May 1988 the Speaker of the House had certified a different Bill
also titled 14th Amendment to the Constitution, which contained a clause
fraudulently interpolated to the Article 99A by the then President J R Jayewardene,
permitting Party Secretaries to appoint rejected candidates as MPs through
the National List.

Therefore, the Petitioner states there had been a serious Constitutional Fraud
involving the Executive President, the Supreme Court (details of which referred
to in paragraph 13 below) and the Speaker committed against the People of Sri
Lanka usurping the peoples sovereign right of franchise without obtaining their
 PETITION
mandate at a referendum which should have been certified by the Executive
President to become law.

(A true copy of the 14th Amendment Bill as approved by the Parliamentary Select
Committee marked X5 and the Parliamentary Standing Order 65 marked X6 and
the true copy of 14th Amendment to the Constitution fraudulently certified by the
Speaker on 24th of May 1988 marked X7 are attached hereto)

The finding of the involvement of the Supreme Court in the fraud

13. The Petitioner states that the involvement of the Supreme Court in this Constitutional
Fraud initiated by President J R Jayawardene was established with the evidence contained
in the Supreme Court Special Determination Record (SC/SD/02/1988) as follows.

a) President J R Jayewardene sends a typed written note to the Chief Justice Parinda
Rajasinghe, claiming to be the 14th Amendment Bill to the Constitution (which was
not a Bill published in the gazette as required by Article 78 of the Constitution)
accompanied by a letter dated 08th April 1988, demeaning the office of the Chief
Justice, addressing the office as My dear Chief Justice

b) The Supreme Court holds a hearing on 18th April 1988, to determine the
consistency of the document referred to by the President J R Jayewardene with the
Constitution, despite there was no such Bill (permitting Party Secretaries to
appoint rejected candidates as MPs through the National List) published in the
Gazette to amend the Constitution, denying the sovereign citizens of their
legitimate right to challenge it.

c) A citizen, namely K Leelatunga, presents an affidavit (18-04-1988) at the hearing,

requesting a copy of the note sent to Court by the President J R Jayewardene and
the Court refuses to issue a copy, on the basis that citizens are not entitled to have
access to it.

d) The Court rules on the same day (18-04-1988), that the clause permitting Party
Secretaries to elect rejected candidates as MPs through the National List does not
violate peoples sovereign right of franchise, the entrenched Article 3 of the
Constitution with no reasons whatsoever given for the said ruling.
 PETITION

(True copies of the letter sent to the Chief Justice by President J R Jayewardene dated
08th April 1988 marked X8, the typed written note sent to the Chief Justice by the
President marked X9, the affidavit furnished to Court by K Leelatunga on 18th April
1988, Marked X10 and the manifestly flawed determination of the Supreme Court
dated 18th April 1988 marked X11 are attached hereto)

14. The Petitioner states that the process adopted by the Supreme Court on 18th May 1988 to
approve the 14th Amendment Bill sent by the President J R Jayewardene clearly suggests
that the Supreme Courts flawed determination had been made apparently under moral
duress. By then the President Jayewardene had been known for his abuse of the judiciary
where he had declared that he was seeking to teach the judges a lesson in order to make
them more pliable to the wishes of the Executive, which has been later reported by the
International Commission of Justice.

(A true copy of an extract obtained from the Report published by the International
Commission of Justice on the attacks on Judiciary by President J R Jayawardene by Paul
Sieghard marked X12 is attached hereto)

The Parliamentary proceedings and the Prime Ministers speech made in the House
on the 14th Amendment Bill on 04th May 1988 affirm the magnitude of the fraud

15. The Petitioner states that at the parliamentary debate held on 04th May 1988 on the 14th
Amendment Bill, the Prime Minister R Premadasa, who was also the Chairman of the
Parliamentary Select Committee (PSC) that introduced the 14th Amendment Bill to the
Constitution with the National List provision (Article 99A), had clearly rejected the flawed
clause interpolated to the Article 99A by the President J R Jayawardena, and also ignored
the Supreme Court approval of the said clause.

The relevant extracts from the Prime Ministers speech made in the Parliament on 04 th
May 1988 are given below.

Mr Speaker, what is this Fourteenth Amendment to the Constitution? I have to raise this
question, because there was a discussion of a Fourteenth Amendment, which as I came to
 PETITION
understand later, is different from the amendment to the constitution that I speak of,
in this instance

These 29 seats will be allocated the different parties contesting in election, in proportion
to the votes received by each such party at National level. The names of party nominees are
known beforehand. In fact their names are published in the Gazette immediately after the
closing 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 make it very clear, that the 14th 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

(A true copy of the Parliamentary Hansard dated 04th May 1988 marked X13 with relevant
extracts marked X13A, X13B and X13C is attached hereto)

Parliament passed the 14th Amendment Bill as approved by the PSC and not the
flawed Bill approved by the Supreme Court

16. The Petitioner states that the thorough examination of the Parliament Hansard dated 04th
May 1988 affirmed that the Parliament had passed only the Bill presented and supported
by the Prime Minister R Premadasa which contained no clause permitting defeated
candidates to enter the Parliament through the National List.

(A true copy of the relevant certification as recorded in the Hansard dated 04th of May 1988
that it was read the third time and passed is marked as X14)

The 6th Respondent denies the Petitioners request for a certified copy of the Special
Determination Record (SCSD/02/1988)

17. At the completion of the investigation into this constitutional fraud, referred to in
paragraph 11 above, the Petitioner states that he made a request to obtain a certified copy
of the Supreme Court Special Determination Record, which provided an
overwhelming evidence of a constitutional fraud involving all three organs of the
government.
 PETITION

18. The Petitioner states that accordingly on 08th Sep 2015 he filed a Motion to obtain a
certified copy of the Supreme Court Special Determination Record (SCSD/02/1988) to be
used as a primary evidence to challenge the illegal National List appointments made after
the Parliamentary Elections held in August 2015.

19. The Petitioner states that however the 6th Respondent refused to release the said
information with the following order made, deliberately and effectively suppressing
this Constitutional Fraud involving 5 judges in the Supreme Court who made the flawed
determination on 18th April 1988 on the 14th Amendment Bill referred to Court by
President J R Jayewardene on 08th April 1988.

Communication 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

The Chief Justice overrules the 6th Respondents ruling and releases Special
Determination Record (SCSD/02/1988)

20. The Petitioner states that on a further request made to the Chief Justice K Sripavan on 10th
September 2015 the entire Special Determination Record (SCSD/02/1988) was released
to the Petitioner.

21. The Petitioner states that if it was not for the said decision made by the Chief Justice, the
people of this country would never have had an opportunity to learn about this
constitutional fraud which had remained under cover for over 28 years and the Petitioner
would never have been able to challenge the unlawful National List appointments before
the Supreme Court on 13th October 2015 (SC/Writs/5/2015).

(A true copy of the request made to the Chief Justice K Sripavan on 10 th Sep 2015 marked
X15 is attached hereto)

Justice Eva Wanasundara violates Section 70 of the Bribery Act, the UN Convention
against Corruption and the Latimer House Principle on Judiciary

22. The Petitioner states that the 6th Respondent by refusing to release the relevant Special
Determination Record (SCSD/02/1988) had clearly abused the judicial office to suppress
 PETITION
the corruption in the Judiciary to favour those who are involved in this constitutional
fraud and in the unlawful National List appointments. The said action on the part of the 6th
Respondent has violated the following.

a) Section 70 of the Bribery Act that defines the criminal offence of corruption.

b) Article 11 of the United Nations Convention against Corruption that sets out
measures relating to the judiciary as cited below.

Bearing in mind the independence of the judiciary and its crucial role in combating
corruption, each State Party shall, in accordance with the fundamental principles of its
legal system and without prejudice to judicial independence, take measures to
strengthen integrity and to prevent opportunities for corruption among members
of the judiciary. Such measures may include rules with respect to the conduct of
members of the judiciary

c) Commonwealth Latimer House Principles concerning the accountability of the

judicial actions referred to in paragraph 8 above

Further abuses of judicial office by the 6th Respondent to suppress the Judicial
Corruption case (SC/Writs/03/2016) initiated against several Supreme Court judges

23. The Petitioner states that the 6th Respondent abused the office to suppress the judicial
corruption case (SC/Writs/03/2016) initiated by the Petitioner against four former Chief
Justices and one serving judge in the Supreme Court on 28th March 2016 was intentionally
suppressed by the 6th Respondent on 04th September 2017 with no date fixed for support
the case, thereby denying the Petitioner his right to be heard.

24. The Petitioner states that he had never been allowed to support this matter since its
initiation for over a period of 1 years and in this background he has been compelled to
file a Motion in Court seeking the Chief Justice to re-list the matter for support.

(A true copy of the said Motion dated 04th Dec 2017 seeking to re-list the matter marked X16
is attached hereto)

25. Contempt proceedings initiated against the Petitioner for exposing judicial
corruption
 PETITION

The Petitioner states that further to initiation of legitimate actions against the judicial
corruption [(SC/Writs/03/2016) and (SC/Writs/5/2015)] the Court has initiated two
contempt proceedings against him, which again violates Commonwealth Latimer House
principles as set out below and also in the paragraph 8 above.

The Criminal Law and contempt proceedings should not be used to restrict
legitimate criticism of the performance of judicial functions .

6th Respondents actions reinforce the adverse stand taken against the government
of Sri Lanka by the United Nations Human Rights Council

26. The Petitioner states that 6th Respondents stand on judicial corruption as illustrated
above has placed Sri Lankas Judiciary in a very unjustifiable situation particularly at a
time the Government of Sri Lanka facing a very embarrassing situation before the
international community, which has already compelled it to concede the allegations that
people of Sri Lanka have no confidence in the justice system and to co-sponsor a
resolution (A/HRC/RES/30/1) on 01st Oct 2015, agreeing to set up a judicial mechanism
with international dimension against Sri Lanka.

(A true copy of the Resolution (A/HRC/RES/30/1) adopted by the United Nations Human
Rights Council with full agreement of the Government of Sri Lanka on 01st Oct 2015 marked
X17 is attached hereto)

Complaint made to the 1st Respondent against the 6th Respondent for violation of
Section 70 of the Bribery Act

27. The Petitioner states that he made a formal complaint to the 2nd Respondent on 05th Nov 2016
against the 6th Respondent by way of an Affidavit, urging the Commission to initiate
independent and credible investigation as required by law as the offence reported fell well
within the ambit of the Section 70 of the Bribery Act. However, the 1st to 5th Respondents
have failed to initiate any action whatsoever so far against the 6th Respondent.

(A true copy of the complaint made to the 2nd Respondent against the 6th Respondent dated 05th
Nov 2016 marked X18 and the communication accompanied it marked X19 are attached hereto)
 PETITION

1st Respondent was under duty to inquire into the complaint

28. The Petitioner states that the material facts contained in the complaint concerning the
conduct of the 6th Respondent, establishes a prima facie case of judicial corruption,
emanating from the abuse of judicial office for improper purposes to favour themselves
and/or the Executive, which falls within the offence of corruption as defined in the Section
70 of the Bribery Act, requiring the 1st Respondent to initiate a credible and independent
investigation into this complaint in terms of Section 4 of the Act No 19 of 1994.

29. The Petitioner states that under Section 4 of the Commission to Investigate Allegations of
Bribery or Corruption Act No 19 of 1994, whenever a plausible complaint is made
disclosing the commission of any offence under the Bribery Act or the Declaration of
Assets and Liabilities Law, No. 1 of 1975, the Commission is under duty and required to
inquire into any such complaint under Section 3 of the Commission to Investigate
Allegations of Bribery or Corruption Act No 19 of 1994 and to conduct a proper
investigation and direct institution of proceedings in the appropriate Court of Law.

The failure of the 1st Respondent to initiate action on corruption complaints

30. The Petitioner states that in the said circumstances on 09th Nov 2017 he drew the attention of
the 2nd Respondent to the dismal failure of the Commission to enforce the corruption law
against those who hold public office in the Legislature, the Executive and the Judiciary,
effectively providing the alleged wrongdoers with an immunity against corruption, and
demanded their resignation from the public office as they have failed to discharge their office
as required by law.

A true copy of the communication addressed to the 2nd Respondent dated 09th Nov 2017 marked
X20 is attached hereto

31. Therefore, the Petitioner states that the failure on the part of the 1st to 5th Respondents to act as
required by law, amounts to violation of the trust and confidence placed in the Commission by
the people of Sri Lanka, whose Executive power is being exercised by them. The Petitioner
therefore states that the failure on the part of the Commission and or the Members of the
Commission is unlawful, inapt, ultra vires and abuse of process/power as much as:

a) the said inaction offends and violates the fundamental expectations of the people of Sri
 PETITION
Lanka whose executive power is being abused by the 1st to 5th Respondents

b) it offends the trust and confidence placed in them by the people of Sri Lanka

c) the said inaction has been apparently influenced by irrelevant considerations

32. 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.

33. The Affidavit by the Petitioner is appended hereto in support of the averments contained
herein.

34. The Petitioner states that he has not invoked the Jurisdiction of the Supreme Court previously
in respect of the matter pleaded herein concerning Judicial Corruption involving the 6th
Respondent and pleads that documents X1 to X20 be deemed to be part and parcel hereof.

WHEREFORE, the Petitioner prays that the Supreme Court be please to;

a) issue Notice on the Respondents;

b) issue a Writ in the nature of a Writ of Mandamus compelling the 1st Respondent
Commission and/or members of the Commission (2nd, 3rd and 4th Respondents) to direct the
5th Respondent to initiate a credible and independent investigation/inquiry into the
plausible complaint made by the Petitioner, on the Judicial Corruption charge leveled
against the 6th Respondent, as expeditiously as possible

c) grant cost and

d) grant such other and further relief and/or declaration as to Your Lordships' Court shall
seem fit and meet

Nagananda Kodituwakku
The Public Interest Litigation Activist and the Petitioner in person

04th Dec 2017