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Landmark judgements speak for Judiciary’s independence

Strengthening the independence of the Judiciary in the country following the 2015 January Presidential Election victory by President Maithripala Sirisena took precedence over many other matters and today, it is a matter to be reckoned with in the long haul.

The smooth functioning of the Judiciary by ensuring its independence and the dignity of judges should be commended, especially during the last four years.

The highest courts in the country delivered several landmark judgements which we would like to highlight, reflecting the unblemished independence of the Judiciary and inspiring public confidence.

Geetha Kumarasinghe case

A five-judge bench of the Supreme Court headed by then Chief Justice Priyasath Dep on November 2, 2017, unanimously held with the petitioners who sought through their petition that Galle district Parliamentarian Geetha Kumarasinghe be disqualified since she held dual citizenship at the time of her election which is a violation of Sri Lankan law.

The Supreme Court, upholding the Court of Appeal judgement dated May 3, 2017, made order in the nature of a Writ of Quo Warranto declaring that MP Geetha Kumarasinghe disqualifies to be a Member of Parliament and is not entitled to hold office as an MP. Legal experts believe the Apex Court’s pronouncement can be considered a historical judgement since the court exercised an order in the nature of Quo Warranto in respect of legislative affairs, signalling that only qualified persons should be elected as Members of Parliament.

This is the first time in Sri Lanka that the qualifications of a Parliamentarian have been challenged through a writ petition over a dual citizenship issue.

The judgement was delivered by Justice Sisira de Abrew, a member of the five-judge bench, with all the other four judges agreeing.

Chief Justice Dep, Justice Buwaneka Aluwihare, Justice Anil Goonaratne and Justice Nalin Perera were the other judges who held the same view as Justice de Abrew.

One of the pertinent questions that was considered in this case was whether Geetha Samanmali Kumarasinghe was holding dual citizenship on the day of the Parliamentary Election, on August 17, 2015.

The Controller General of Immigration and Emigration, in his affidavit filed in the Court of Appeal, stated that Kumarasinghe was granted dual citizenship (Sri Lanka and Switzerland) on August 29, 2006 under dual citizenship certificate No.17096.

The Appellant, Kumarasinghe, too, in her written submission filed in this court on July 14, 2017, admitted that she got married to a citizen of Switzerland and by virtue of the said marriage, she was granted citizenship of Switzerland by the operation of the law. If she maintained that she had given up Switzerland citizenship, she should have stated the date on which she gave it up.

Justice Abrew in his judgement held that Kumarasinghe could not be considered as a Member of Parliament, and that the Parliament (Powers and Privileges) Act does not apply to her. Therefore, she cannot invoke Article 67 of the Constitution.

The 19th Amendment to the Constitution barred dual nationals from becoming candidates at national elections.

The two highest courts in the country held that Kumarasinghe had the opportunity to prove she was not a Swiss national at the time of filing nominations for the August 2015 Parliamentary Elections, but she failed.

Duminda Silva judgement

On October 11, 2018, a Supreme Court five-judge bench headed by then Chief Justice Priyasath Dep unanimously decided to dismiss appeal petitions filed by former Defence Ministry Monitoring MP Duminda Silva and two others who challenged the judgement of the Colombo High Court that found them guilty for conspiring to commit the murder of four persons, including former MP Premachandra.

Accordingly, a Supreme Court five-judge bench unanimously affirmed the Colombo High Court’s judgement to impose the death sentence on eleventh accused Duminda Silva, third accused Chaminda Ravi Jayanath alias ‘Dematagoda Chaminda’ and seventh accused Dissanayake Mudiyanselage Sarath Bandara. However, the Supreme Court ordered to acquit Duminda Silva, Chaminda Ravi Jayanath and Dissanayake Mudiyanselage Sarath Bandara from charges relating to possession of illegal firearms.

The Supreme Court five-judge bench comprised Chief Justice Dep, Justice Buwaneka Aluvihare and Justice Priyantha Jayawardena, Justice Nalin Perera and Justice Vijith Malalgoda.

Four accused including Duminda Silva who were sentenced to death by the Colombo High Court for committing the murder of four persons, including former MP Premachandra, had filed appeal petitions in the Supreme Court challenging the judgement of the Colombo High Court.

Five accused including former MP Duminda Silva were on September 8, 2016, sentenced to death by the Colombo High Court for committing the murder of four persons including former MP Premachandra on October 8, 2011.

Wele Suda sentenced to death

On October 14, 2015, the controversial drug dealer Gampola Vidanage Samantha Kumara alias ‘Wele Suda’ was sentenced to death by the Colombo High Court, on the charges of possessing and trafficking 7.05 grams of heroin in Mount Lavinia in 2008.

While handing out a 125-page judgement, then High Court Judge Preethi Padman Surasena maintained that he was making this order against the accused in a manner of setting an example for society.

Under the Poisons, Opium and Dangerous Drugs (Amendment) Act No. 13 of 1984, any person in possession of or trafficking over two grams of heroin is liable to be penalised with the death sentence or life imprisonment.

It was revealed that the accused had a close link with an international drug trafficking cartel and thereby he could be considered as a leading figure in the international drug trafficking chain.

Lalith Weeratunga judgement

Former Secretary to the President, Lalith Weeratunga and former Telecommunications Regulatory Commission (TRC) Director General Anusha Pelpita were on September 7, 2017, found guilty of misappropriating Rs. 600 million of funds belonging to the TRC in the controversial sil redi distribution case and were sentenced to three-years’ rigorous imprisonment by the Colombo High Court.

They were ordered to pay compensation of Rs.50 million each to the TRC in lieu of losses incurred contrary to the Telecommunication Act. Each of the accused was further ordered to pay a fine of Rs. 2 million.

Meanwhile, in his judgement, High Court Judge Gihan Kulatunga held that the accused had committed this offence dishonestly with the intention of gaining undue advantage for a particular candidate during the 2015 Presidential Election.

There is no doubt that this judgement which sent shockwaves through the state sector, was a strong message to government officials to exercise caution when following the orders of politicians which are not in the best interests of the public.

However, the accused have filed petitions in the Court of Appeal against the judgement made by the Colombo High Court to declare it null and void.

SAITM judgement

On September 21, the Supreme Court upheld the Court of Appeal judgement dated January 31, 2017, regarding a legal issue pertaining to the South Asian Institute of Technology and Medicine Limited (SAITM) and ordered the Sri Lanka Medical Council (SLMC) to pay Rs.100,000 as legal costs to a petitioner Dhilmi Kasunda Suriyarachchi, a student of SAITM in Malabe for unnecessarily delaying and refusing to register her as a medical practitioner.

On January 31, 2017, the Court of Appeal ruled that the petitioner has a legal right to provisionally register as a medical practitioner in terms of Section 29(2) of the Medical Ordinance since she has fulfilled the necessary requirements.

Supreme Court three-judge-bench comprising Justice Eva Wanasundara, Justice Nalin Perera and Justice Prasanna Jayawardena unanimously decided to dismiss the appeal filed by the SLMC (Sri Lanka Medical Council) challenging the Court of Appeal order dated January 31, 2017.

The Supreme Court observed that the SLMC has unnecessarily delayed the petitioner obtaining provisional registration as a medical practitioner and would have, thereby, caused her to bear considerable expenses in addition to causing grave prejudice to the petitioner. Accordingly, the Supreme Court ordered the SLMC to pay the petitioner Rs.100,000 by way of costs.

Delivering its judgement on the writ petition filed by a MBBS graduate of SAITM in Malabe, the Court of Appeal on January 31 last year held that SAITM is empowered to grant MBBS degrees and further held that the petitioner has legal rights to register at the Sri Lanka Medical Council (SLMC) as a medical practitioner in accordance with the Medical Ordinance.

The Court of Appeal also observed that the petitioner, a MBBS graduate of SAITM, has no obstacle to register at SLMC as a medical practitioner in terms of Section 29(2) of the Medical Ordinance.

The Court of Appeal further observed that on or around August 30, 2011, the former Higher Education Minister recognised SAITM as a degree-awarding institute in terms of Section 25(A) of the Universities Act No. 16 of 1978.

The Court of Appeal also observed that the Higher Education Minister has not taken any steps to revoke the concerned decision in terms of Section 27 of the said Act.

Judgement on Gnanasara Thera

On October 5, 2018, the Supreme Court upheld the Court of Appeal judgement that found Bodu Bala Sena (BBS) General Secretary Ven. Galagoda Atte Gnanasara Thera guilty over his contemptuous behaviour inside the Homagama Magistrate’s Court on January 25, 2016.

Accordingly, a majority of a divided three-judge Supreme Court bench decided to refuse the special leave to appeal application filed by Gnanasara Thera who sought an order to set aside the judgement of the Court of Appeal dated August 8, 2018.

On August 2018, Gnanasara Thera was sentenced to 19 years’ rigorous imprisonment, to be served concurrently within six years, by the Court of Appeal over his contemptuous behaviour inside the Homagama Magistrate’s Court. Expressing his views regarding the special leave to appeal application, Justice Prasanna Jayawardena observed that the Supreme Court is bound to maintain the dignity of the courts and further observed that both the Supreme Court and the Court of Appeal have unlimited jurisdiction to deal with contempt of court matters.

On a previous occasion too, Gnanasara Thera had been sentenced to six months’ rigorous imprisonment after he was found guilty of threatening and intimidating Sandhya Eknaligoda, the wife of missing journalist Prageeth Eknaligoda.

SC judgement on dissolution of Parliament

In a landmark judgement, the seven-judge bench of the Supreme Court headed by Chief Justice Nalin Perera on December 13 unanimously ruled that the Gazette notification issued by President Maithripala Sirisena to dissolve Parliament prematurely was inconsistent with the Constitution.

Chief Justice Nalin Perera delivered the judgement and held that the proclamation to dissolve Parliament has been issued outside legal limits and has resulted in a violation of the petitioners’ fundamental rights. Justice Buwaneka Aluvihare, Justice Priyantha Jayawardena, Justice Prasanna Jayawardena, Justice Vijith Malalgoda and Justice Murdu Fernando agreed with the judgement penned by the Chief Justice ordering to quash and render null and void the concerned proclamation published in the Gazette notification dated November 9. While agreeing with the judgement delivered by the Chief Justice and five other judges regarding these 10 Fundamental Rights petitions, Justice Sisira de Abrew delivered a separate judgement explaining different reasons to justify his stance.

The Supreme Court also observed that the fundamental rights of the petitioners guaranteed under Article 12(1) of the Constitution have been infringed by the respondents.

On November 12, 10 Fundamental Rights petitions were filed in the Supreme Court by several political parties and individuals seeking an Interim Order to stay the operation of the President’s proclamation to dissolve Parliament, which was published in the Extraordinary Gazette dated November 9.

On November 13, the Supreme Court three-judge bench comprising Chief Justice Nalin Perera, Justice Priyantha Jayawardena and Justice Prasanna Jayawardena unanimously issued an Interim Order staying the operation of the Gazette notification issued by the President to dissolve Parliament.

The Supreme Court further issued an Interim Order restraining the Election Commission from proceeding to take any steps to conduct a Parliamentary election by virtue of the proclamation.

On November 26, the Chief Justice nominated a fuller bench comprising seven judges of the Supreme Court to hear several Fundamental Rights (FR) petitions which challenged the Gazette notification issued by the President to dissolve Parliament.

CA order against PM and Cabinet

The Supreme Court three-judge bench comprising Justice Eva Wanasundara, Justice Buwaneka Aluvihare and Justice Vijith K. Malalgoda on December 14, 2018, unanimously refused to set aside the Interim Order issued by the Court of Appeal restraining Mahinda Rajapaksa and 48 others from functioning as Prime Minister, Cabinet of Ministers, State Ministers and Deputy Ministers respectively.

However, a plurality decision of the Supreme Court three-judge bench decided to grant leave to appeal for four appeal petitions filed by Parliamentarian Mahinda Rajapaksa and several others.

On December 3, the Court of Appeal had issued an Interim Order restraining Prime Minister Mahinda Rajapaksa, the Ministers of the Cabinet, and Deputy Ministers from holding their office until final determination of this writ petition filed by 122 Parliamentarians.

It was the view of the court that damage that may be caused by temporarily restraining a lawful Cabinet of Ministers from functioning would in all probabilities be outweighed by the damage that would be caused by allowing a set of persons who are not entitled in law to function as the Prime Minister or the Cabinet of Ministers or any other Minister of the Government. The magnitude of the latter damage would be very high. Such damage would be an irreparable or irremediable one. Such damage would also have far-reaching consequences to the whole country, the court held.

The petitioners stated that on November 14, 2018, Parliament passed a vote of no-confidence against the purported government of the respondents. They further stated that on November 16, Parliament passed another vote of no-confidence against the government. They maintained that in terms of Article 48 of the Constitution, the Cabinet stood dissolved from November 14, 2018.

PM testifies before Bond Commission

Prime Minister Ranil Wickremesinghe made history on November 20, 2017, by testifying before the Bond Commission where he voluntarily agreed to give evidence.

The Presidential Commission of Inquiry to investigate and inquire into the Issuance of Treasury Bonds had also made it clear that Prime Minister Wickremesinghe had not been compelled to appear before it.

It is evident from the foregoing that from 2015 onwards, the Judiciary functioned without undue influence from the political hierarchy, unlike in the era before that year. The citizenry welcomed the independence of the Judiciary and once again has complete faith in the judicial system.

In a recent statement, Speaker Karu Jayasuriya professed that the Sri Lanka Judiciary had proved beyond any doubt that it does not need foreign input to decide on controversial matters that were alleged to have taken place in the final stages of the war against the LTTE that came to an end a decade ago.

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