Petition Filed in Court (SC/Writs/05/2015)

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 Respondents

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

On this 13th day of Oct 2015

The Petition of the Petitioner above-named appearing in person, states as follows:-

Parties to the Application

1. The Petitioner states that he is a Attorney-at-Law (Sri Lanka) & Solicitor in the UK and a citizen of both countries and a Public Interest Litigation Activist.

2. The 1st Respondent is the Commissioner of Elections and the 2nd Respondent is the General Secretary of the United People's Freedom Alliance (UPFA), the 3rd is the General Secretary of the United National Party (UNP), 4th Respondent is the General Secretary of the People’s Liberation Front (PLF), the 5th Respondent is the General Secretary of the Ilankai Tamil Arasu Kadchi, 6 to 15th Respondents are the candidates who were rejected by the people at the General Election – 2015 but nominated by 2nd 3rd 4th and 5th Respondents and elected as Members of Parliament through the National List by the 1st Respondent and the 16th Respondent is the Attorney General of the Republic of Sri Lanka and the 16th Respondent is named as a party to this application for the purpose of serving notice only.

3. The Petitioner makes this instant application under and in terms of Article 125, 140 read with Article 104H(1) of the Constitution of the Republic of Sri Lanka.

4. In this instant application, the Petitioner seeks to challenge, inter alia;

a) that the clause inserted in the Article 99A through the 14th Amendment to the Constitution, which reads as “… 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 that election…” on the premise that the said clause violates sovereign rights of the People which includes the power of Franchise enshrined in Article 3 of the Constitution, which cannot be taken away or denied without a mandate obtained from the people at a referendum (Article 83) and upon a certificate by the President being endorsed on the Bill and therefore in terms of Article 82 (6) of the Constitution, the said provision shall NOT be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, as it has been enacted in violation of and bypassing the mandatory statutory requirements as set out in Article 82, 83 of the Constitution.

b) to have the appointments of defeated/rejected candidates (6th to 15th Respondents) at the General Election - 2015 under the said clause, as elected Members of Parliament by the 1st Respondent from the nominations made by the 2nd, 3rd, 4th and 5th Respondents under Article 99A of the Constitution, quashed

Dissolution of the Parliament

5. The Petitioner states that on 26th June 2015 the Parliament was dissolved by the Extant Executive President, proclaiming the nomination period (beginning from 6th July 2015 to 13th July 2015) and fixing a date for the Parliamentary Elections to be held on 17th August 2015.

A true copy of the gazette extraordinary No 1920/38 dated 26th June 2015 published by the Secretary to the Executive President marked P1 is attached hereto.

Calling for nominations for the Parliamentary Elections - 2015

6. The Petitioner states that within the nomination period the recognised Political parties had submitted their nominations for the General Elections of the Members of the Parliament to the 1st Respondent. And on 13th July 2015, the 1st Respondent gazetted (No 1923/3) the names of those candidates for the information of the voters.

The part of the true copy of the said Government Gazette No 1923/3 dated 13th July 2015 published by the 1st Respondent, which is relevant to this application marked P2 is attached hereto

Submission of National List Candidates

7. The Petitioner states that as required by the Article 99A of the Constitution, the recognised political parties had submitted their lists of persons qualified to be elected as Members of Parliament during the Nomination Period, to the 1st Respondent, which the 1st Respondent gazetted (No 1923/2 of 13th July 2015) for the information of the voters so that they would know that some of the candidates in the list so published by the 1st Respondent were likely to be elected as MPs through the National List.

A true copy of the Gazette Extraordinary No 1923/2 dated 13th July 2015 published by the 1st Respondent marked P3 is attached hereto.

8. The Petitioner states that on 17th August 2015 the General Election was held as scheduled and having considered PLF’s anti-corruption initiative and its declared commitment to restore the Rule of Law sans corruption, with probably the best National List presented to the Constituents for their consideration, the Petitioner voted for the People’s Liberation Front at the General Election - 2015.

A true copy of the Poling Station Card issued by the 1st Respondent (and cancelled after casting the vote by the Presiding Officer at the Poling Station) marked P4 is attached hereto

9. The Petitioner states that thereafter on 19th Aug 2015, the 1st Respondent declared the final results of the Parliamentary Election – 2015 with the names of the successful candidates elected by the People which was published by the Government Gazette NO 1928/3 of 19th August 2015

A true copy of the Government Gazette No 1928/3 dated 19th August 2015 published by the 1st Respondent marked P5 is attached hereto

10. The Petitioner states that thereafter, further to a Notice served by the 1st Respondent, the 2nd, 3rd 4th and 5th Respondents submitted their respective lists of nominees under Article 99A of the Constitution, to fill the seats, if any, that could be allocated to them through the National List. The combined list so presented by the political parties did contain the names of several candidates who had been defeated at the General Election – 2015. Thus their names did not appear in the gazette published by the 1st Respondent marked P5. Those names are given below. Name Political Party Electoral-Distric U J Tilanga Sumathipala UPFA Colombo B Mahinda Samarasinghe UPFA Kalutara S B Dissanayake UPFA Kandy Lakshman Yapa Abeywardena UPFA Matara A Ramathanathan UPFA Jaffna A M H M Lebbe UPFA Batticaloa G Vijith Wijayamuni Zoysa UPFA Monaragala M H M Navavi UNP Puttalam Sunil Handunnethi PLF Matara Kathiragamathamby Thurairathasingham ITAK Trincomalee Shanthi Srikandarasa ITAK Vanni

11. The Petitioner states that the 1st Respondent accepted these names, so nominated by the respective political parties and accordingly the names of several defeated candidates were declared as MPs elected through the National List. The Petitioner states that on 21st of Aug 2015 these names were published in the Gazette No 1928/25 dated 21st August 2015 and the Gazette No 1929/4 dated 24th Aug 2015. The Petitioner states that amongst those names published in the Gazette, the name of Sarath Chandrasiri Mayadunne, the former Auditor General, from the PLF’s National List was also included.

A true copy of the Government Gazette No 1928/25 dated 21th August 2015 and the Gazette No 1929/4 dated 24th Aug 2015 published by the 1st Respondent marked P6 and P7 are attached hereto

12. The Petitioner states that the issuance of the P6 and P7 by the 1st Respondent was based on the lists of names submitted by the 2nd 3rd 4th and 5th Respondents, which had contained the names of several candidates rejected by the constituents at the General Election – 2015. This is in total disregard of the National List gazetted (P3) by the 1st Respondent and tantamount to blatant abuse of people’s sovereign powers, including the power of franchise enshrined in Article 3 of the Constitution. The Petitioner states that in this backdrop the people genuinely feel that they have been betrayed and their intelligence has been insulted. The public outcry became so intense as their sovereign powers had been taken away by the 2nd, 3rd, 4th and 5th Respondents, who had not been given a mandate by the people at a referendum. A referendum in this regard is mandatory under Article 83 of the Constitution.

The people’s anger and disgust over this improper act were amply demonstrated in both print and electronic media, and evidence of such protests published in the media are attached hereto marked P8, P9, P10, P11, P12, P13, P14, and P15.

13. The Petitioner states that after the inaugural session of the Parliament held on 03rd Sep 2015, the Member of Parliament elected through the National List Sarath Chandrasiri Mayadunne, the former Auditor General from the PLF National List resigned from the office of Member of Parliament, claiming that the electorate had elected a number of corrupt elements as MPs, disregarding plausible corruption allegations raised against such elements. The Petitioner states that adding insult to injury, the People’s Liberation front nominated another defeated candidate, the 15th Respondent in place of the resigned National List Sarath Chandrasiri Mayadunne. The Petitioner considers this act, as a persistence of violation of the trust placed in the People’s Liberation Front by the constituents, including the Petitioner.

A true copy of the Government Gazette No 1932/5 dated 14th Sep 2015 published by the 1st Respondent marked P16 is attached hereto

14. The Petitioner states that after thoughtful consideration of the print and electronic media outcry about the abuse of National List provisions of the Constitution (Article 99A), he conducted a investigation into the manner in which this provision of law had been introduced to the Constitution through the 14th Amendment in 1988, which could never have been enacted without obtaining a mandate from the people at a Referendum in terms of Article 83 of the Constitution, as it had clearly infringed the people’s sovereign right of Franchise guaranteed by Article 3 of the Constitution.

15. The Petitioner states that his study has revealed overwhelming evidence of a fraudulent act, to which all three organs of the government (Executive, the Legislature and also the Judiciary) had contributed.

16. The Petitioner states that his investigation revealed that there had been an All Party Parliamentary Select Committee (APSC) appointed in July 1983 by the, then UNP government, consisting of 12 members, to make recommendations, considered necessary, pertaining to the ‘Franchise and Elections’ with powers to summon persons to give evidence before it.

17. The Petitioner states that after 5 years of deliberations the final report of the APSC was published on 08th March 1988, which also included the Draft Bill of the 14th Amendment to the Constitution approved by the said APSC.

A true copy of the extract obtained from the All Party Select Committee on Franchise and Elections marked P17 published along with the draft Bill of 14th amendment to the Constitution marked P18 on the Orders of the Prime Minister R Premadasa on 08th March 1988 are attached hereto

18. The Petitioner states that the said Amendment to the Constitution (P18) had introduced the National List provision (Article 99A), but there was no provision whatsoever to elect defeated or rejected candidates as MPs to the Parliament by the party secretaries through the National list.

19. The Petitioner states further that the Parliamentary Standing Order No 65 is very clear and precise on this point and about the procedure to be followed if any further amendments to be made to a Bill presented by a Chairman of a Select Committee to the Parliament. This provides no provision to make any new amendment to such a Bill by the Parliament upon consideration of such a Report, except amendments accepted at the Committee stage.

A true copy of the Parliamentary Standing Order 65 marked P19 is attached hereto

20. The Petitioner states that his investigation led to the finding of several references concerning the Article 99A of the Constitution in the Parliamentary Hansard Reports dated 03rd and 04th May 1988. It was found that one of the Bills on 14th Amendment to the Constitution had been placed on the Order Paper of the Parliament on 03rd May 1988. It was also observed that the formalities of the second and third readings of the 14th Amendment Bill (approved by the All Party Select Committee) had been hurriedly completed and the Bill was passed (with only a couple of amendments accepted at the Committee stage) on 04th May 1988.

The true copies of the Hansard dated 3rd May 1988, marked P20, the date on which one Bill on 14th Amendment was first presented by the Prime Minister, R Premadasa on 3rd May 1988 marked P21 and the Hansard dated 04th May 1988 marked P22 are attached hereto.

21. The Petitioner states that the statements made on behalf of the government by the Prime Minister R Premadasa and Minister of National Security Lalith Athulathmudali during the debate on the 14th Amendment Bill on 04th May 1988 (recorded in P22) make it abundantly clear that P21 was NOT the Bill presented and supported by the Prime Minister and the Government. The Petitioner states that for some hitherto mysterious reasons, the 14th Amendment Bill, supported by the government (based on the APSC approved Draft Bill) and approved by the Parliament on 04th May 1988 is still unavailable in the public domain.

22. The Petitioner states that an in-depth analysis of the Parliamentary debate in the Hansard dated 04th May 1988, confirms that a new clause had been surreptitiously added (shown within bracket to the Clause 8 of the 14th Amendment Bill that introduced Article 99A), permitting defeated candidates to enter Parliament through the National List. The Petitioner states that during the debate several Opposition MPs, had expressed their concerns and disbelief about this strange developments concerning the Article 99A.

23. However, the Petitioner states that the intention of the government on the 14th Amendment Bill had been made absolutely clear by the Prime Minister R Premadasa and Minister Athulathmudali, (referred to in paragraph 24 to 26 below) who had only supported the 14th Amendment Bill that had been approved by the All Party Select Committee.

24. The Petitioner states that the Prime Minister, R Premadasa, himself, the Chairman of the All Party Select Committee and the one who had introduced Bill admitted that there were two bills on the 14th Amendment, one different from the Amendment he spoke during the debate. He had stated,

‘… 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 understand later, is different from the amendment to the Constitution that I speak of, in this instance…”.

The relevant part of the Prime Minister’s speech is marked P23 in the Hansard Record dated 04rd May 1988 marked P22

25. The Petitioner states that Prime Minister, R Premadasa introducing the Bill and the National List concept had stated as follows.

“… 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...”

The Petitioner states that, this statement reaffirms that the Prime Minister was referring to the Amendment duly approved by the All Party Select Committee and not to the amendment with the clause referred to in the paragraph 22 above.

The relevant part of the statement made by the Prime Minister Mr R Premandasa, is marked P24a and 24b in the document marked P22.

26. The Petitioner states that the Minister of National Security, Lalith Athulathmudali, when urged to delete the clause permitting party Secretaries to nominate rejected candidates through the National list had made it clear that there was no such provision in the 14th amendment in the Bill, he had supported in the Parliamentary Debate which is recorded as follows.

Lakshman Jayakody (Opposition MP):

“I move, ‘In page 10, line 15 – 18 leave out the word ‘or any nomination paper submitted in respect of any electoral district by such party or group at that election…’ That is the amendment I propose. I do not know whether the government is accepting it”.

Latith Athulathmudali (Minister for National Security):

“… Unfortunately I do not have a copy of that amendment…”

The relevant part of the Minister Lalith Athulathmudali is marked P25 in the Hansard Record dated 04rd May 1988 marked P22

27. The Petitioner states that the speeches made by several parliamentarians at the debate held on 04th May 1988 on the 14th Amendment (referred to in paragraphs 28 to 31 below), further confirm that the Bill which contained the following clause had never been intended to be enacted either by the Government or agreed upon by the Opposition.

“… 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…”

28. The Petitioner states that the opposition MP, Anil Munasinghe had made the following observations.

“… The people to be nominated for the 29 seats were to be nominated together with other names for the General Election, now you have added that once the 196 Members are declared elected, the Party Secretary can nominate, for the that number of seats that you are entitled to, that number of people from that list of 29 which you have sent or from those who have already been nominated. We are against this principle, the second part being added, because you are bringing in people who are defeated in the General Election through the back door into Parliament. Why do you want to do this? (Interruption) If they are good they would not have been defeated, surely it is a bad principle to bring a person who has been defeated…”

Apparently MP Anil Munasinghe had the Bill, which permitted party secretaries to nominate rejected candidates as MPs through the National List.

The relevant part of MP Anil Munasinghe’s speech is marked P26 in the Hansard Record dated 04rd May 1988 marked P22

29. The Petitioner states that the Opposition MP, Dinesh Gunawardana, had stated as follows.

zz''' fïfl .c jdish ;sfnkafka f,dl= mlaI j,ghs' fudlo" fï úis kj fokdg nqoaêu;=ka úis kj fofkl= oukakg hkjdh lshk ;¾lh lshd mEjdg fïflka isoaOfjkafka tfyu fohla fkdfõ' ,xldfõ bkak f,dl=u fldaám;shka úis kj fokdf.a kï od,d f,dl= mlaI úiska fïl cdjdrula njg m;alr.kakjdg lsisÿ ielhla keye' ,xldfõ md¾,sfïka;=jg cdjdrïldr fldaám;shkag uyck Pkaofhka tkakg neß wjia:dfõ § Tjqkag md¾,sfïka;=jg tkakg mdr lemSula jdf.au f,dl= foaYmd,k mlaI j,g ue;sjrK igkg fldaá .Kka tl;= lsÍfï Wmdh ;uhs fï wdik 29 cd;sl wkqmd;h keue;s ie,eiau' fïl ,xld md¾,sfïka;=jg b;d lK.dgqodhl ;;a;ajhla Wodùug wdrïNhla jkakg mq¿jka'''ZZ

zz''' fldaám;sfhda fï md¾,sfïka;=jg tkafka ke;sj wfma rfÜ iudc wd¾Ólh ilia lr .kakd wkaou fmakjd' leisfkda la,í ldrfhda" f¾ia nqls ldrfhda " fjk;a fjk;a cdjrï ldrfhda md¾,sfïka;=jg weú,a,d b`o.;a;dg miafia isoaOjk foa óg jvd Nhdklhs' Bg wjia:dj ;uhs fï wdik 29 ka ,efnkafka' f,dl= foaYmd,k mlaI fïl mdúÉÑ lrkjd" wksjd¾hfhkau' wmg md¾,sfïka;= b;sydifhka fïl meyeÈ,shs' fifkÜ uka;%S uKAv,hg taldf,a heõfõ fldfyduo@''' fifkÜ uka;%S uKAv,hg .sh whf.ka jeäfokd heõfõ mlaIhg ÿka uqo,a wdOdr Woõ u;hs''''''ZZ

The relavant part of the MP, Dinesh Gunawardena’s speech is marked P27 in the Hansard Record dated 04rd May 1988 marked P22

30. The Petitioner states that the Opposition MP DEW Gunasekara had made the following observations.

“… This is monstrously undemocratic. It will lead to very undemocratic means of voicing opinion…”

“… I would like the Hon’ Members of the Cabinet to learn a lesson. I think that they never learn any lesson like French Bourbons. Even though their own idiotic blunders that they have made for the last eleven years they never learn any lessons. So at least learn a lesson after having ruled this country, this nation, for eleven years, after putting the whole country, the nation into a state of fear, insecurity, chaos-economic chaos and political chaos. The psychosis of fear has become a way of life. And not having learn this lesson, they are trying again, as correctly pointed out by the Hon’ Member for Maharagama, by these artificial and mechanical devices or other to protect and safeguard their interests…”

The relevant part of MP DEW Gunasekara’s speech is marked P28 in the Hansard Report dated 04rd May 1988 marked P22

31. The Petitioner states that the constitutional provision on the franchise, fundamental rights and powers of government, which is vested in the people of Sri Lanka, is an inalienable right and is protected by an entrenched provision (Article 3), which cannot be denied or taken away without a mandate obtained from the people at a referendum. Therefore, the Petitioner was confident that, had the Bill inclusive of the said clause (permitting the party secretaries to nominate rejected candidates by the people as MPs through the National List) been presented to the Supreme Court, the Judges would have immediately noted the inconsistency of the Bill with the provisions of Article 3, which requires a mandate from the people, approving the surrender of their sovereign right of franchise to the party secretaries.

32. The Petitioner states that therefore, on behalf of the people he was committed to find out the truth about this apparent fraud and as to how and who was responsible for introducing this strange clause to the Article 99A of the Constitution.

33. The Petitioner states that his investigation led him to the Special Determination Record (SC/SD/02/1988) deposited at the Supreme Court Record Room. The Petitioner states that therein he managed to identify the parties responsible for this fraudulent act. They happened to be the then President JR Jayawardena and five-Judge bench of the Supreme Court who had made an obvious flawed determination, perhaps under moral duress.

34. The Petitioner states that the then President JR Jayawardena had, referred a type written note (purporting it to be the 14th amendment to the Constitution), which included a clause permitting party secretaries to appoint rejected candidates as MPs through the National List (a provision of which had not been approved by the All-party Select Committee which had drafted the 14th Amendment). In the covering letter to the Chief Justice, the President JR Jayawardena addresses the Chief Justice as “My dear Chief Justice” and states that the Cabinet of Ministers had decided that the Bill was urgent in the “National Interest”. And he was sending it for the ‘special determination of the Court’ to ascertain whether any provisions in the said Bill were inconsistent with the Constitution.

35. The Petitioner states that the Constitution cannot be easily amended like any other ordinary law, which is the established norm applicable to any Representative Democracy.

Aharon Barak, President of the Supreme Court of Israel (1995 – 2006) has declared that; “… To maintain real democracy and to ensure a delicate balance its elements a formal constitutional is preferable. To operate effectively, a Constitution should enjoy normative supremacy and should not be as easily amendable as a normal statute …”

A true copy the statement made by Aharon Barak, President of the Supreme Court (1995 – 2006) marked P29 is attached hereto.

36. The Petitioner states that the aforesaid established Constitutional norm has been duly recognised and integrated into the Constitution of Republic of Sri Lanka in Chapter XII, setting out a stringent process to be followed to amend the Constitution. The process set out therein prohibits amending the Constitution in any manner, unless the special process laid down therein is duly complied with. The said process requires ‘No Bill to amend the Constitution’ shall be placed on the Order paper of the Parliament, unless in the Long Title in the Bill clearly identifies it as an Act to amend the Constitution (Article 82), which is required to be published in the Gazette at least seven days before it is placed on the Order Paper of the Parliament (Article 78) for the information of the concerned citizens, enabling them to raise objections, if any, as they may deem appropriate.

37. The Petitioner states further that no such Bill to amend any entrenched provisions, including the Article 3 [that protects peoples sovereign powers of government (Legislative, Executive and Judicial power) fundamental rights and franchise], can be made law, unless two thirds of the whole number of votes are cast in favour, and also approved by the people at a referendum, and certified by the Executive President [(Article 83 and Article 82 (5)].

38. The Petitioner states that however the Bill titled 14th Amendment has been presented to the Parliament on 03rd May 1988 by the then Prime Minister, R Premadasa as an URGENT BILL, under Article 121 of the Constitution which could only be applicable for any other Ordinary Bill but not for amending or repealing the Constitution, that require to adhere to different process as set out in Chapter XII of the Constitution, titled ‘Amendments to the Constitution” which however had not been followed in this case.

39. The Petitioner states that he further observed that only two ordinary citizens had challenged this Bill before the Supreme Court. Both of them at the hearing held on 18th April 1988 had pleaded with the Court to issue them a copy of the Bill referred to Court by the President JR Jayawardana, for their perusal and to raise their objections. However, the Court had refused to issue the said information, claiming that the citizens were not entitled to peruse it. The Petitioner states that this tantamount to violation of people’s Judicial power, which the Supreme Court exercises purely on trust, and also in violation of its clear obligation to uphold, protect and vindicate the rights of the people, as required by Article 105 of the Constitution.

40. The Petitioner states that he found that the five-judge bench in the Supreme Court had approved President JR Jayawardena’s unpublished Bill, without giving any reasons for its decision, which is clear violation of Article 123 of the Constitution effectively making the Court’s determination ab initio void.

41. The Petitioner in this regard supports his case with the speech delivered by the Chief Justice of United Kindgom, Lord Justice Neuberger, to the Bar on 12th Nov 2012 as follows.

“… Judges were required both to exercise judgements, and to give judgements. Without reasons, there could be no judgement. For Justice to be seen to be done, two fundamental requirements had to be satisfied. First, give publicly available reasons for their judgements. Second, those judgements must be reliably disseminated and reported and all citizens had the fundamental right to free access to all primary legal materials…”

A true copy of the speech delivered by the Lord Justice Neuberger, referred to above is annexed hereto marked P30.

42. The Petitioner states that President JR Jayawardena’s attitude towards the Judiciary throughout his rule is well documented and it would have induced the Judges to arrive at flawed determination on the 14th Amendment. The International Commission of Justice refers to President JR Jayawardena’s attitude towards judiciary as follows.

“… The President freely conceded that he had personally ordered the promotion of the police officers and payment out of the public funds of the damage and costs. This he said had been necessary to maintain police morale at a time when he found the Supreme Court a hindrance to some of his policies. The conclusion is inescapable that he was deliberately seeking to teach the Judges a lesson in order to make them more pliable to the Executives wishes. If that is so, these were grossly improper acts; but for the immunity from all suits which the President enjoys under Article 35(1) of the Constitution, they might well have been criminal offences…”

A true copy of the report published by the International Commission of Justice with a caption “Sri Lanka: a mounting Tragedy of Errors by Paul Sieghart is attached hereto marked 31.

43. The Petitioner states that in this backdrop he made written requests to the Chief Justice on 26th Aug 2015 and 10th Sep 2015, to obtain a certified copy of the Special Determination Record (SC/SD/02/2015) that evidently established the appalling process adopted by the Executive President to have his version of the 14 Amendment passed. The Petitioner states that Supreme Court refused to release the said information, which was vitally important in the public interest, by making the following order to the Registrar of the Court.

“… 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…”

A true copy of the request made to the Chief Justice on 26th Aug 2015 and 10th Sep 2015 referred to above are annexed hereto marked P32 and P33.

44. The Petitioner states that the paramount duty of the Court is to provide a fair trial with full disclosure of the relevant facts when Constitutional matters are to be determined even in cases where the Head of the State (Executive) is involved. This cannot be denied relying on the Executive privilege of secrecy, which has been held not absolute by the Supreme Court of United States. In the United States v. Nixon (President Richard Nixon) 418 US 683 (1974) Chief Justice Burger of the Supreme Court of the United States has held as follows.

“… that President do enjoys a Constitutionally protected Executive privilege, but that the privilege was not absolute … the President’s interest in keeping his communications secret was outweighed by the interests of the Judiciary in providing a fair trial with full factual disclosure …”

A true copy of the extract of the ruling in United States v. Nixon - 418 US 683 (1974) is annexed hereto marked P34 .

45. The Petitioner states that the simple reason for the refusal to release the Record of the said Determination to the Petitioner could only be that the Court was well aware that in 1988 five judges of the Supreme Court had failed to uphold the people’s democratic rights protected by entrenched provisions in the Constitution leading to the enactment of the Article 99A in the 14th amendment.

46. The Petitioner states that the refusal of the Supreme Court to release the document was published by the print and electronic media for the people who have every right to know the truth behind the unlawful process adopted by the Government to have the 14th Amendment to the Constitution enacted.

In this regard a true copy of the Lead Story of Sunday Island Newspaper dated 13th Sep 2015 is attached hereto marked P35.

47. The Petitioner states that later the Course reversed its initial decision and released the Supreme Court’s Special Determination Record (SC/SD/02/2015) on the 14th Amendment to the Petitioner. However, only the following documents were made available but not the Special Determination requested.

a) President JR Jayawardena’s typewritten Note dated 07th April 1988 (not a properly constituted Bill) claimed to be the 14th Amendment to the Constitution and sent to the Supreme Court for its determination, marked P36 and attached hereto.

b) President JR Jayawardena’s letter dated 08th April 1988 addressed to the Chief Justice accompanying the said Note and addressing the Chief Justice as “my dear Chief Justice”, demonstrating his dictatorial attitude towards the Judiciary, marked P37 and attached hereto.

c) The written request made on behalf of a citizen named K Leelatunga dated 18th April 1988 to have a copy of 14th Amendment Bill, enabling him to raise objections and denied by the Court on the premise that the citizens were not entitled to peruse the said Bill, marked P38 and attached hereto.

48. The Petitioner states that his perseverance to find the Determination of the Supreme Court made on 18th April 1988 finally became successful. On the Clause 8 of the Bill which referred to the Article 99A of the 14th Amendment, the Court’s determination states as follows.

“… we have considered the respective submissions made in regard to this matter and our determination is that Clause 3 (provision to increase the number of MPs to 225) and the Clause 8 (provision permitting the party secretaries to nominate defeated candidates as MPs through the National List) are not inconsistent with the provisions of Article 3 read with Articles 4 (a) and 4 (e) of the Constitution, and therefore do not require the approval of the People at a Referendum…”

A true copy of the Special Determination Record dated 18th April 1988 and marked P39 is attached hereto.

49. The Petitioner states that the entire process adopted by President JR Jayawardena had obviously violated the Article 3 of the Constitution. The Petitioner observes that the 14th Amendment Bill was placed on the Order Paper of the Parliament on 03rd May 1988, only after obtaining the Determination of Supreme Court on 18th April 1988. The Bill was published in the Gazette on 03rd of May 1988, denying the citizens any opportunity to challenge its Constitutionality. The Article 3 is an entrenched provision and effectively prohibits any Bill becoming law unless people’s approval is obtained at a Referendum and followed by the certification by the Executive President.

50. The Petitioner states that therefore the appointments of 6th to 15th Respondents (rejected by the people at the General Election – 2015) made by the 1st Respondent from the nominations (names of which were not duly published in the Gazetted National List marked P3) submitted by the 2nd to 5th Respondents, as ‘Elected MPs from the National List’ have become ab initio void, as the clause reproduced below (inserted in the Article 99A) shall not be deemed to have amended the Constitution or any provision thereof, or be so interpreted or construed [(Article 82 (6)] and therefore ab initio void.

51. 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.

52. The Affidavit by the Petitioner is appended hereto in support of the averments contained herein and the Petitioner states that he has not invoked the jurisdiction of the Supreme Court previously in respect of the matters pleaded herein and pleads that documents P1 to P39 be deemed to be part and parcel hereof.

WHEREFORE, the Petitioner prays that Your Lordship’s Court be pleased to;

a. Issue Notice on the Respondents;

b. grant INTERIM RELIEF, suspending appointment of all defeated candidates (6th to 15th Respondents) at the General Election – 2015, appointed through the National List provision in the Constitution (Article 99A) by the 1st Respondent and published in the Gazettes marked P6, P7 and P16.

c. declare that the insertion of clause to the Article 99A to the 14th Amendment to the Constitution, which reads as “… 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…” has been made without adhering to the mandatory requirement stipulated in Article 82 and without obtaining people’s approval at a Referendum as required by the Article 83 of the Constitution, followed by a certification by the Executive President in terms of the provisions of the Article 80 of the Constitution, and is therefore ab initio void and of no force or avail in law

d. quash the appointments 6th to 15th Respondents as Members of Parliament elected under the clause purportedly inserted into Article 99A in the 14th Amendment to the Constitution, (shown within brackets), which reads as “… 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…” which could not have been validly interpreted or construed as enacted in accordance with the stipulated provisions set out in Article 82 and 83 of the Constitution and hence ab initio void

e. issue a Mandatory Order to the 2nd, 3rd, 4th, and 5th Respondents to send nominations for appointment as National List MPs, to the 1st Respondent, from the list of names published in the Gazette (marked P3) by the 1st Respondent BEFORE the Parliamentary Elections – 2015

f. issue a Mandatory Order to the 1st Respondent to appoint the persons who would be nominated by the 2nd, 3rd, 4th, and 5th Respondents from the list of names published in the Gazette (marked P3) as MPs duly elected under the National List

g. grant costs of this Application; and

h. grant such other and further relief as to Your Lordships' Court shall seem fit and meet.

The Petitioner in Person