On Supreme Court Order Of 1st January 2013: Interpreting Article 107(3) Of The Constitution

By Nihal Sri Ameresekere -January 5, 2013 

Nihal Sri Ameresekere

5^th January 2013

Hon. Chamal Rajapaksa

Speaker of Parliament

Parliament of Sri Lanka

Sri Jayewardenepura

Kotte.

Dear Hon. Speaker,

Supreme Court Order of 1^st January 2013

interpreting Article 107(3) of the Constitution

I write further to my Letter of 5^th December 2012 forwarding my Affidavit of the same date, inter-alia, vis-à-vis,the cover-up by some of the Justices of the Supreme Court of the charges I had made against the conduct and actions of the Chief Justice and their disqualification as a consequence thereof to hear matters pertaining to the Chief Justice. My said Letter of 5^th December 2012 was before the hearing on 13^th and 14^th December 2012 on the aforementioned ‘interpretation’ by the Supreme Court.

Your Honour, with the concurrence of the Leaders of all Political Parties in Parliament, issued a Ruling on 9^thOctober 2012, on the contravention of the mandatory provisions of Article 121 of the Constitution in a Special Determination made by the Chief Justice on a Bill. In the said Ruling, Your Honour, inter-alia, ruled that the Supreme Court was requested to give earnest consideration to re-visit the said Special Determination, and that it was necessary, as well, to rectify a bona-fide error made by the Supreme Court.

In such circumstances, with notice to Your Honour, I filed Petition dated 18^th October 2012 under and in terms of Article 132(3) of the Constitution for a review and re-examination of a Special Determination made, without jurisdiction, ultra-vires the expressly mandated deeming provisions in Article 123(3) of the Constitution. I also adduced facts in extenso of improprieties and/or misconduct and/or judicial bias disqualifying the Chief Justice. Some of the matters in my Petition coincidently had become grounds for charges in the Impeachment Motion against the Chief Justice, entertained by Your Honour on 1^st November 2012.

In addition, by the said Special Determination made by the Chief Justice, Article 157 of the Constitution, which affords protection to  foreign investments in terms of international treaties passed by the Parliament of Sri Lanka with a 2/3^rd majority, and thereby having the force of law in Sri Lanka, was over-written by the Chief Justice, in perversely determining, that such foreign investments could be acquired by the State in the public interest, whereas Article 157 of the Constitution specifically stipulates that it was only possible in the interest of national security. The Supreme Court had no constitutional right or capacity to have so amended the Constitution of the Republic.

I was appalled that, relying on Your Honour’s aforesaid Ruling, my aforesaid Application made under Article 132(3) of the Constitution, which had to be considered solely by the Chief Justice, and not by any other Justice, had however in contravention of Article 132(3) had been considered by the Listing Judge, Justice K. Sripavan. I myself, together with one member of my Office, went to the Supreme Court Registry on 20^thNovember 2012, and personally verified the correctness of the following Minutes from the original Case Record. (Emphasis added)

“Hon. K. Sripavan, J

AAL for the Petitioner files Motion dated 18.10.2012 with:

1. Petition and Schedules “X”, “Y” & “Z”
2. Documents
3. Affidavit
4. Special Affidavit in support of the facts contained in “X”

AAL further moves Your Lordship’s Court be pleased that this Application be taken for Hearing on 16^th, 19^th & 20^th November 2012, for a review and re-examination of Determination made on 24.10.2011. Submitted for Your Lordship’s directions please.

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