Ad Hominem Legislation Expropriation Law · 2016. 11. 25. · ad hominem legislation, named as Revival of Underperforming Enterprises and Underutilized Assets Act No. 43 of 2011 [,

Synopsis of

Socio-Political Realities Ad Hominem Legislation

Expropriation Law

Amazon Books – ‘Socio-Political Realities - Hilton Hotel Fiasco & Ad hominem Legislation - Expropriation Law’

http://www.consultants21.com/page-1-public-interest-litigations.php

+ Justification for Supporting the Impeachment of Chief Justice of Sri Lanka 2012

The Author has compiled this Book in two Sections. The First Section has been in relation to how a strong country, such as Japan, had exercised undue governmental pressures to cover-up a fraud perpetrated on the Government of Sri Lanka, a small country, in the construction of the Colombo Hilton Hotel, by reputed Japanese Companies.

In this Second Section of the Book, the Author deals with an ad hominem legislation, named as ‘Revival of Underperforming Enterprises and Underutilized Assets Act No. 43 of 2011’, commonly known as the ‘Expropriation Law’, which had been hastily enacted by the Parliament of Sri Lanka, based on a perverse Special Determination made by the Supreme Court of Sri Lanka on the constitutionality of this Bill; whereas the Constitution of Sri Lanka, itself, had mandated such a Bill, in the given facts and circumstances, to have been deemed to be determined to be inconsistent with the Constitution, thereby having rendered the Supreme Court to be functus thereon.

The Author has well and truly demonstrated, as to how the relevant Bill, pertaining to the said ad hominem legislation, named as ‘Revival of Underperforming Enterprises and Underutilized Assets Act No. 43 of 2011’, commonly known as the ‘Expropriation Law’, had been surreptitiously certified by the Cabinet of Ministers of Sri Lanka, as an ‘Urgent Bill’ and forwarded by President Mahinda Rajapaksa on Thursday, 20.10.2011 to the Chief Justice of Sri Lanka for a Special Determination on the constitutionality of such Bill, which had been received by the Supreme Court Registry on Friday, 21.10.2011, and Listed for Hearing by the Supreme Court on Monday, 24.10.2011, itself over the weekend ! – viz:

Size - 8.25” X 11” – Pages 818

http://www.amazon.com/Socio-Political-Realities-Hominem-Legislation-Expropriation/dp/1477213937/ref=sr_sp-btf_title_1_11?s=books&ie=UTF8&qid=1410329639&sr=1-11&keywords=nihal+sri+ameresekere#reader_1477213937http://www.consultants21.com/page-1-public-interest-litigations.phphttp://justification-for-supporting-the-impeachment-of-chief-justice.com/http://justification-for-supporting-the-impeachment-of-chief-justice.com/

Knowingly, no notice, whatsoever, had been given to the parties, whose interests had been directly affected by such ad hominem legislation, thereby denying them natural justice and their constitutional rights. Even the public of Sri Lanka had been denied the constitutional right to challenge the Bill before the Supreme Court at the Hearing into the Special Determination, since the Hearing had been hastily and secretively fixed for Monday 24.11.2011, over the weekend, with the Bill having been received in the Supreme Court Registry on Friday 21.11.2011.

The Supreme Court Special Determination had been made by a 3-Judge Bench, presided by Chief Justice Shirani Bandaranayake, comprising Justices P.A. Ratnayake and Chandra Ekanayake, who having heard a Deputy Solicitor General, on behalf of the Hon. Attorney General, who only had been noticed ! The Supreme Court Bench had raised several questions on ‘doubts’, to which clarifications had been afforded by the Addl. Solicitor General !

Nevertheless, in violation of the Constitution of Sri Lanka, the Supreme Court had determined the said Bill to be consistent with the Constitution, whereas the very entertainment of any ‘doubt’ in relation to an ‘Urgent Bill’, renders such Bill to have deemed to have been determined to be inconsistent with the Constitution, itself, in terms of Article 123(3) of the Constitution of Sri Lanka, thereby rendering the Supreme Court functus thereon – (Emphasis Added) – viz :

“123(3) In the case of a Bill endorsed as provided in Article 122, if the Supreme Court

entertains a doubt whether the Bill or any provision thereof is inconsistent with

the Constitution, it shall be deemed to have been determined that the Bill or

such provision of the Bill is inconsistent with the Constitution, and the Supreme

Court shall comply with the provisions of paragraphs (1) and (2) of this Article.”

Consequently, the said Bill had been placed on the Order Paper of Parliament of Sri Lanka on 8.11.2011, and Debated on the very next day, 9.11.2011, and expeditiously certified into Law on 11.11.2011 by the Speaker of Parliament, Chamal Rajapaksa, a brother of President Mahinda Rajapaksa, but the announcement of such certification had been made to Parliament only on 22.11.2011 – viz:

(Translated into English from Sinhala language)

SPEAKER’S CERTIFICATE

I wish to notify that the certificate on the Bill titled Revival of Underperforming Enterprises or

Underutilized Assets has been placed on 11th November 2011 in terms of Article 79 of the

Constitution of the Democratic Socialist Republic of Sri Lanka.

By the aforesaid perverse Act, Hotel Developers (Lanka) Ltd., the owning Company of the Colombo Hilton Hotel had been the only Company scheduled to be vested in the Government of Sri Lanka, together with 77 other Lands.

Such ad hoc takeover had been purely on the basis that the Government had advanced Rs. 12,000 Mn., to Hotel Developers (Lanka) Ltd., which had to be re-paid, and for which the Treasury by Letter dated 10.5.2011 had already given a period of 2 years ! This Rs. 12,000 Mn., had actually comprised only Rs. 4,000 Mn., of Capital, with the balance Rs. 8,000 Mn., having been interest accumulated exceeding the Capital ! – viz:

Coincidently, the Author on 8.11.2011 had filed in the Commercial High Court of Sri Lanka, an Application under the provisions of the Companies Act No. 7 of 2007, to restructure and re-arrange the affairs of Hotel Developers (Lanka) Ltd., under the supervision of a judicial process. At the very same time, the Author had given notice of such invoking of the exercise of judicial power on 8.11.2011, itself, to the Speaker of Parliament, Chamal Rajapaksa.

Deliberately disregarding such material fact, the Speaker of Parliament had permitted a Debate on the aforesaid Bill on the very next day 9.11.2011 for the passage of the Bill, and the hasty certification thereof into law on 11.11.2011, thereby vesting Hotel Developers (Lanka) Ltd., in the Government of Sri Lanka, whereby the legislature had usurped the judicial process, with the Speaker of Parliament permitting legislative power to be exercised overriding the exercise of judicial power ! Though such fact had been brought to the attention of the Speaker of Parliament of Sri Lanka by Member of Parliament M.A. Sumanthiran, Attorney-at-Law, he had been overruled thereon by the Speaker !

Having been unaware that the Speaker of Parliament had certified such Bill into law on 11.11.2011, since such certification had been disclosed by him only on 22.11.2011, the Author on 17.11.2011 had filed the Application in the Supreme Court challenging the constitutionality of the Bill, particularly citing the foregoing Article 123(3) of the Constitution of Sri Lanka, and pointing out the ‘impossibility’ for him to have done so previously, given the hasty and surreptitious manner in such Bill had been Specially Determined upon by the Supreme Court !

Appallingly, Chief Justice Shirani Bandaranayake had minuted on the above Application in Chambers, together with the concurrence of Justices P.A. Ratnayake and Chandra Ekanayake, stating that any party, who had wanted to intervene, could have done so at the time the Supreme Court had the Hearing on the Bill, and that once a Special Determination had been made, permission could not be granted to intervene in the matter.

Whereas for all practical purposes to have so intervened was an ‘impossibility’ given the listing of such Hearing on Monday, 24.11.2011, given a weekend in between, with the Supreme Court Registry having received such Bill only on Friday 21.10.2011 ! A lurking doubt necessarily arises, as to why the Supreme Court did not realize such ‘impossibility’ in fixing the matter for Hearing over a weekend on Monday, itself ?

With every organ of the State having been constitutionally bound to secure and advance fundamental rights, the Author on 14.11.2011 had filed a Fundamental Rights Application in the Supreme Court, as an affected party, who had been denied natural justice, citing, inter-alia, Article 17(1) of the United Nations Universal Declaration of Human Rights – viz:

“Article 17(1)

(1) Everyone has the right to own property alone as well as in association with others

(2) No one shall be arbitrarily deprived of his property

The Author had cited the following ‘dicta’ from a 7-Judge Bench of the Supreme Court in a Special Determination made in October 2002 – viz:

“The foregoing had been comprehensively dealt with in the Determinations made in October 2002 by a 7 Member Bench of Your Lordships’ Court, comprising then Chief Justice, Sarath N. Silva, and Justices J.A.N. De Silva, Shirani Bandaranayake, S.W.B. Wadugodapitiya, A. Ismail, P. Edussuriya and H.S. Yapa on the aborted 18th and 19th Amendments to the Constitution. The following extracts therefrom are cited:

“Therefore, shorn of all flourishes of Constitutional Law and of political theory, on a

plain interpretation of the relevant Articles of the Constitution, it could be stated that any power that is attributed by the Constitution to one organ of government cannot be transferred to another organ of government or relinquished or removed from that organ of government; and any such transfer, relinquishment or removal would be an “alienation” of sovereignty which is inconsistent with Article 3 read together with Article 4 of the Constitution”.

“It necessarily follows that the balance that had been struck between the three

organs of government in relation to the power that is attributed to each such organ, has to be preserved if the Constitution itself is to be sustained”

“The transfer of a power which attributed by the Constitution to one organ of

government to another; or the relinquishment or removal of such power, would be an alienation of sovereignty inconsistent with Article 3 read with Article 4 of the Constitution”

“The power that constitutes a check, attributed to one organ of government in

relation to another, has to be seen at all times and exercised, where necessary, in trust for the People. This is not a novel concept. The basic premise of Public Law is that power is held in trust. From the perspective of Administrative Law in England, the ‘trust” that is implicit in the conferment of power has been stated as follows:

‘Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can validly be used only in the right and proper way with Parliament when conferring it is presumed to have intended” – (Administrative Law 8th Ed. 2000 – H.W.R. Wade and C.F. Forsyth p, 356) ‘ ”

“It had been firmly stated in several judgments of this Court that ‘rule of law’ is the basis of our Constitution”.

“A.V. Dicey in Law of the Constitution postulates that ‘rule of law’ which forms a

fundamental principle of the Constitution has three meanings one of which is described as follows:-

‘It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness or prerogative, or even of wide discretionary

authority on the part of the government. Englishmen are ruled by the law, and by the law alone …. "

“If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective - (Cited from Indian Judgment) “

“The Constitution does not attribute any unfettered discretion or authority to any organ or body established under the Constitution”

“We have to give effect to this provision according to the solemn declaration made in terms of the Fourth Schedule to the Constitution to “uphold and defend the Constitution” ”

And the Author had also cited the following:

The ‘dicta’ by Bhagawati J in State of Rajasthan v Union of India, AIR 1977 SC 1361, 1413;

“…. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed, it would be its constitutional obligation to do so …. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. This Court is the ultimate interpreter of the Constitution …. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the Rule of Law ….”

The ‘dicta’ in S.C. FR No. 431/2001;

“It is now firmly established that all powers and discretions conferred upon public authorities and functionaries are held upon trust for the public, to be used reasonably, in good faith, and upon lawful and relevant grounds of public interest; that they are not unfettered, absolute or unreviewable; and that the legality and propriety of their exercise must be judged by reference to the purposes for which they were conferred”

Author’s above Fundamental Rights Case had been supported by him appearing in person in the Supreme Court of Sri Lanka on 25.11.2011. He had argued that the Supreme Court Special Determination of 24.10.2011 on the said Bill had been violative of the Constitution, particularly Article 123(3) thereof, and that such Special Determination was null and void, since the Supreme Court had been constitutionally functus.

The Author had submitted that he could demonstrate to the Supreme Court, that the Special Determination of 24.10.2011, itself, disclosed, that several ‘doubts’ and ‘questions’ in fact had been entertained by the Supreme Court, and clarifications thereon given by the Deputy Solicitor General, submitting that such very entertainment of ‘doubts’ and ‘questions’ constitutionally had determined the said Bill to have been deemed to be inconsistent with the Constitution in terms of Article 123(3) of the Constitution !

The Author had successfully argued that Article 80(3) of the Constitution, pertains only to an Act of Parliament, and does not include a Special Determination by the Supreme Court, and that a Special Determination could be reviewed and re-examined by the Supreme Court, itself – viz:

“80(3) Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question the validity of such Act on any ground whatsoever”

The Supreme Court Bench presided by Justice N.G. Amaratunga, comprising Justices Suresh Chandra and Sathya Hettige, having been satisfied, had entertained the Author’s Application, and had directed that Notices be issued through the Supreme Court Registrar, on the Respondents, and granted the Author permission to amend his Petition in view of the change in the circumstances of having come to know only on 22.11.2011, that the aforesaid Bill had been certified into Law by the Speaker of Parliament of Sri Lanka, after the Author had filed his Petition on 14.11.2011. Accordingly, the Author had tendered his Amended Petition, as had been directed by Supreme Court on 16.12.2011, with Notices to be sent to the Respondents. The Supreme Court Registrar had accordingly sent out Notices on the respective Respondents, returnable on 26.1.2012. Since the above Application was for the review and re-examination of the Special Determination of 24.10.2011, the Author had filed a Motion, as he ought to have, making an Application under Article 132 of the Constitution for the Chief Justice Shirani Bandaranayake to fix the matter before a Fuller Bench of the Supreme Court for such review and re-examination. Nevertheless, Chief Justice Shirani Bandaranayake had not granted the Author’s such Application for the matter to be reviewed and re-examined by a Fuller Bench of the Supreme Court, but had directed that Author’s Application be supported on 9.2.2012 before the same Bench, namely, Justices N.G. Amaratunga, Suresh Chandra and Sathya Hettige, who had entertained the Author’s Application, and had issued Notices on the Respondents as above. The Respondents were the following persons. In addition to a Deputy Solicitor General, D.S. Wijesinghe, President’s Counsel, Senior Legal Advisor to President Mahinda Rajapaksa also appeared for the Respondents: President Mahinda Rajapakse, as the Minister of Finance Basil Rajapaksa, Minister of Economic Development P.B. Jayasundera, Secretary, Ministry of Finance & Secretary to the Treasury G.L. Peiris, Minister of External Affairs C.R. de Silva, P.C., former Attorney General Mohan Peiris, P.C., former Attorney General Rauf Hakeem, Minister of Justice Suhadha Gamalath, Secretary, Ministry of Justice Chamal Rajapakse, Speaker of Parliament of Sri Lanka Hon. Attorney General

The Author had made exhaustive Oral Submissions, supported by extensive Written Submissions, to convince the Supreme Court Bench of the Author’s stance. The Author in his extensive Submissions had, inter-alia, pointed out that 77 Allotments of Land of 36 Enterprises located in the following 7 Districts had been vested in the State – viz :

Western Province - 32 Lands Uva Province - 35 Lands North Central Province - 2 Lands Central Province - 2 Lands Sabaragamuwa Province - 3 Lands Eastern Province - 1 Land Sothern Province - 2 Lands

and that the foregoing had been determined to be consistent with the Constitution, stating that apparently, under ‘National Policy’ all subjects are vested in the Central Government, and therefore since this a matter of ‘National Policy’, that it is apparent that this it is not inconsistent with the Constitution ! The Author had clarified that Article 154(G)(7) of the Constitution does not include Land to come under the ambit of ‘National Policy’, whereas Land comes under Provincial Councils in terms of Article 154(G)(3) of the Constitution, thereby requiring such Bill to have been referred by the President to every Provincial Council; and that this had been the consistent determination/adjudication by the Supreme Court in several other Cases, thereby giving credence to the doubt, as to whether not this had been a surreptitious manipulation for extraneous purposes ? As regards violation of International Treaties and Agreements, the Author had pointed out that it had been determined that there is no inconsistency, since it is for ‘public purpose’, whereas Article 157 of the constitution expressly stipulates that such can only be done in the ‘interests of national security’.

Nevertheless, towards the end of the Author’s submissions on 9.2.2012, the 3 Judge Bench of the Supreme Court, gave a ‘hint’ of acceptance that the Author had admittedly established a prima-facie case, warranting a review and re-examination of the Special Determination of 24.10.2011, in stating that such matter ought be heard by the same Bench, who had made the Special Determination of 24.10. 2011. In the face of the foregoing, the Author had pointed out to the 3 Judge Bench of the Supreme Court, that he had, in fact, by his Motion dated 18.1.2012, previously made an Application under Article 132 of the Constitution, to Chief Justice Shirani Bandaranayake, seeking a review and re-examination of the Special Determination of 24.10.2011 as having been made per-incuriam and/or ultra-vires Article 123(3) of the Constitution, as a matter of utmost general and public importance.

Upon checking the record in this regard, most shockingly the 3 Judge Bench of the Supreme Court had disclosed that – ‘they had been directed by Chief Justice Shirani Bandaranayake that the Author only be heard, but not to grant him Leave to Proceed’. Chief Justice Shirani Bandaranayake had no right, whatsoever, to have so pre-directed another Bench of the Supreme Court !

Upon such intimation by the 3 Judge Bench of the Supreme Court, those present had exclaimed quietly - ‘if Leave to Proceed had not been intended to be granted in the first instance, then as to why and for what purpose, the Author had been required painstakingly to make such strenuous and lengthy submissions before this Supreme Court Bench’ ? Upon the 3 Judge Bench of the Supreme Court having intimated as aforesaid, the Author responding thereto, tendered a confidential Written Submission adducing additional grounds warranting the rescinding or varying of the Special Determination of 24.10.2011, upon grounds of perceived judicial bias, upon which Their Lords of Appeal in the House of Lords, exercising their inherent jurisdiction to correct an injustice caused, had set aside a previous Judgment by a 5 Member Committee of the House of Lords in re – Pinochet.

Judgment - In Re Pinochet

Lord Browne-Wilkinson Lord Goff of Chieveley

Lord Nolan Lord Hope of Craighead

Lord Hutton

In fact, the Author had submitted that the facts and circumstances disclosed in his confidential Written Submission of adducing perceived judicial bias were of a far graver nature, than those which had been disclosed in the said House of Lords Judgment re – Pinochet.

Both Counsel, Deputy Solicitor General and President’s Counsel D.S. Wijesinghe, Senior Legal Advisor to President Mahinda Rajapaksa, were taken aback and had got flustered, and had desperately objected to the Author’s such further confidential Written Submission, which well and truly established facts and circumstances of perceived judicial bias, akin to those in the aforesaid Judgment of the House of Lords; thereby warranting the rescinding or variation of the Special Determination of 24.10.2011. They expressed apprehensions that the said confidential Written Submission becoming publicly known would create controversy in the public domain !

Responding thereto, the 3 Judge Bench of the Supreme Court, directed the return of all copies of the Author’s Written Submissions. It is beyond comprehension, as to why such Written Submissions, which had been tendered in Open Court in the public interest, should be suppressed and hidden from the knowledge of the public, who are rightfully and legitimately entitled to know ? The 3-Judge Bench of the Supreme Court held that it had no power to accept the Petition of the Author or to deal with it.

The question loomed large, as to why Chief Justice, Shirani Bandaranayake did not grant the initial Application made by the Author on 18.1.2012, in terms of Article 132 of the Constitution, for a 5 Judge Bench of the Supreme Court, to hear and determine the Author’s Application submitted specifically seeking a review and re-examination of the Special Determination of 24.10.2011, as having been made per-incuriam and/or ultra-vires Article 123(3) of the Constitution, which matter indeed was of utmost general and public importance ?

The foregoing was in stark contrast to the fact that previously in August 2009, purely in a personal matter, a 7 Judge Bench of the Supreme Court had been expeditiously constituted to adjudicate and determine upon an Application made by P.B. Jayasundera, to assume Office once again as Secretary, Ministry of Finance & Treasury, at the instance of President Mahinda Rajapaksa. Pertinent ‘Extracts’ from Pages 25 and 26 of the US State Department Report dated 8.4. 2011 titled – ‘2010 Human Rights Report: Sri Lanka’ are given below:

“Section 4 : Official Corruption and Government Transparency” “The law provides criminal penalties for official corruption; however, the government did not implement the law effectively, and officials in all three branches of the government frequently engaged in corrupt practices with impunity ………..” “In 2008 the Supreme Court found then treasury secretary P.B. Jayasundera guilty of a violation of procedure in the awarding of a large contract for the expansion of the Port of Colombo. The court barred him from holding the treasury position. In June 2009, after President Rajapaksa named a new Supreme Court chief justice, the Supreme Court allowed Jayasundera to proceed with a fundamental rights case protesting the original decision. The Supreme Court then overturned the previous decision and allowed Jayasundera to be reinstated as secretary of the treasury.”

Immediately after the Hearing on 9.2.2012 before the 3 Judge Bench of the Supreme Court on the very next day, 10.2.2012, the Author had made a comprehensive Note of the Submissions he had made and the Proceedings in the Supreme Court on the previous day, 9.2.2012. Continued in Author’s Book –

Amazon Books – ‘Politics, Justice & the ‘Rule of Law’

http://books.google.lk/books?id=BReu2FjceTUC&printsec=frontcover&dq=Nihal+Sri+Ameresekere&hl=en&sa=X&ei=vswPVPCDEM6iugTE8YCIDQ&redir_esc=y#v=onepage&q=Nihal%20Sri%20Ameresekere&f=false

Accordingly, the Author had submitted a further Petition dated 8.5.2012, attaching the foregoing record made by him and all the Notes and Written Submissions, including the confidential Written Submission, seeking a review and re-examination of the foregoing decision; and placing in the Court Record the totality of the documentations, which had been previously removed ! The Author’s such Application for a re-view and re-examination had not been entertained by the presiding Justice N.G. Amaratunga, he having minuted in his Chambers, as follows:

“D/RSC

This Application has been dismissed on 09/02/2012. Motions / Applications cannot be entertained in respect of a dismissed application.

Sgd. 14/05/2012”

In the meanwhile, the Speaker of the Parliament of Sri Lanka, Chamal Rajapaksa, having

consulted and received approval of the Leaders of all political parties in the Parliament of Sri

Lanka, issued a Ruling on 9.10.2012, vis-à-vis, Special Determinations by the Supreme Court.

In his Ruling the Speaker of Parliament had ruled that the Supreme Court could give earnest

consideration to re-visit Special Determinations to make a vested right of a citizen

comprehensively effective, as intended in the Constitution, and that it was necessary, as well, to

rectify a bona-fide error made by the Supreme Court.

In such circumstances, the Author had decided to pursue the vitally important matter, vis-à-vis the Special Determination of 24.10.2011, which had been of utmost general and public importance, made with scant regard for the rule of law and natural justice, and in blatant violation of the Constitution.

Accordingly, the Author in the context of the Ruling made by the Speaker of Parliament, had made a further subsequent Application on 18.10.2012 under Article 132 of the Constitution to the Supreme Court to have the Special Determination of 24.10.2011 reviewed and re-examined, and had moved for a date to Support the same. However, on the examination of the Supreme Court Minutes made by the Justices of the Supreme Court in relation thereto, the Ruling of the Speaker of Parliament of Sri Lanka, vis-à-vis, Special Determinations had been shockingly ignored and not even dealt with – viz:

“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 16th, 19th & 20th November 2012, for a review and re-examination of Determination made on 24.10.2011. Submitted for Your Lordship’s directions please.

DRSC 19.10.2012

Hon. Chief Justice The Petitioner by Motion dated 18.10.2012 seeks to review and re-examine the Special Determination dated 24.10.2011. In terms of paragraph 9(h) of the Petition, Hon. Speaker has certified the Bill on 11.11.2011. Upon certification being endorsed, the Bill becomes law and in terms of Article 80(3), the validity of such Act shall not be called in question thereafter upon any ground whatsoever. This Article (Art 80 (3)) must be interpreted according to its true purpose and intent as disclosed by the phraseology in its natural signification. If a party perceives “judicial bias & disqualification” against a member of the Bench, such party should have raised objections at the time the Bill was taken up for hearing. If no Objection is taken at the former stage, that party cannot thereafter complain of the matter disclose, as giving rise to a real danger of bias. Any frivolous objection taken after a long period of time without a firm foundation would not only impede the due administration of justice, but also undermines the work of Court. (Emphasis added) In view of the foregoing, I do not see any legal basis to entertain the Motion dated 18.10.2012. The Motion may be rejected in limine.

Sgd. Sripavan, J 22.10.2012 Hon. Amaratunga, J, Hon. Ratnayake, PC, J, Hon. Ekanayake, J.

I agree with the Observations of Hon. Sripavan, J. The Bill in question was considered by this Court on 24.10.2011 and the certificate by the Hon. Speaker had taken place on 11.11.2011. In terms of Article 80(3) of the Constitution the validly of such an Act shall not be questioned on any ground whatsoever.

No Objection was raised on any one of the three Judges who heard the matter on 24.10.2011. For the aforementioned reasons the Motion dated 18.10.2012 should be rejected in limine. Pls. consider the said Motion and tender your observations/concurrence. Sgd. Chief Justice 23.10.2012 Hon. The Chief Justice I agree with the observation of Your Ladyship and Hon. Sripavan J, set out above. Since there is no legal basis to entertain the Motion dated 18.10.2012, it should be rejected in limine. The Registrar of the Supreme Court should be directed not to entertain any further Motions/ Applications / Petitions in respect of this matter. Sgd. Amaratunga, J 24.10.2012. Hon. The Chief Justice I agree with the observations and recommendations of Your Ladyship, Hon. Amaratunga J, and Hon. Sripavan, J. Sgd. P.A. Ratnayake, J 25.10.2012 Hon. The Chief Justice I agree with the observations and directions embodied in Your Ladyship’s Order 23/10/2012, Hon. Justice Amaratunga’s Order dated 24/10/2012, Hon. Justice Sripavan’s Order dated 22/10/2012 and Hon. Justice P.A. Ratnayake’s Order dated 25/10/2012. Sgd. Ekanayake, J

7.11.2012 ”

As stipulated in Article 132 of the Constitution, the Author’s Application for such review and re-examination had to be considered and decided upon by Chief Justice, Shirani Bandaranayake, and no other Justice. What is intriguing, is that, Justice K. Sripavan, the Listing Judge, prior to forwarding the Application to the Chief Justice as warranted, had pre-empted such constitutional mandate and had taken upon himself, to express his own opinion on the said Application. In doing so, Justice K. Sripavan had unilaterally gone on to interpret Article 80(3) of the Constitution of Sri Lanka, sitting alone in his Chambers, whereas ought not constitutional Determinations be made by a Fuller Bench of Supreme Court, after a public hearing ? Justice K. Sripavan had gravely misdirected, himself, in also stating that the matter of ‘perceived judicial bias and disqualification’, had been taken up after a long period of time, having not addressed his mind to the fact that on the very first occasion the Author had raised this matter on 9.2.2012 before the 3-Judge Bench of the Supreme Court presided by Justice N.G. Amaratunga !

Though Justice K. Sripavan had chosen to ridicule the matter of ‘perceived judicial bias and disqualification’, as ‘frivolous’, contrastingly, a few days thereafter a Motion signed by 117 Members of Parliament of Sri Lanka, to impeach the Chief Justice Shirani Bandaranayake, had been entertained by the Speaker of Parliament on 1.11.2012. One such Charge had been on the very said matter the Author had raised of her ‘perceived judicial bias and disqualification’ !

It is based upon the misdirected unilateral opinion and decision of Justice K. Sripavan, that Chief Justice Shirani Bandaranayake by her subsequent Minute had agreed therewith, whereas Article 132 of the Constitution of Sri Lanka required the sole and exclusive express opinion of the Chief Justice, and none other.

Chief Justice Shirani Bandaranayake in agreeing with the aforesaid Minute of Justice K. Sripavan observing as ‘frivolous’ the averments on ‘perceived judicial bias and disqualification’, concerning herself, ought to have considered and dealt with the matter herself !

Justice P.A. Ratnayake in agreeing with the aforesaid Minute of Justice K. Sripavan observing as ‘frivolous’ the averments on ‘perceived judicial bias and disqualification’, concerning himself ought to have considered and dealt with the matter himself !

Justice Chandra Ekanayake in agreeing with the aforesaid Minute of Justice K. Sripavan observing as frivolous the averments on ‘perceived judicial bias and disqualification’, concerning herself ought to have considered and dealt with the matter himself !

Significantly, Justice N.G. Amaratunga, had not disputed and/or controverted the averments contained in the Author’s Petition, particularly averments in relation to disclosure, made in the Supreme Court previously by the 3-Judge Bench presided by Justice N.G. Amaratunga, that Chief Justice Shirani Bandaranayake had pre-directed them – ‘that the Author should only be heard and not be granted Leave to Proceed’, as referred to hereinbefore !

www.justification-for-supporting-the-impeachment-of-chief-justice.com

JUSTIFICATION FOR SUPPORTING THE IMPEACHMENT OF CHIEF JUSTICE OF

SRI LANKA 2012

Widespread public controversies were precipitated, both locally andinternationally, on the impeachment of the Chief Justice of Sri Lanka, ShiraniBandaranayake,duringtheperiodNovember2012–January2013,underandinterms of the procedure, as per the Articles in the Constitution therefor. Suchcontroversieswereprecipitatedby localandinternational institutions,agenciesandassociations,raisingquestionsincomparisontopracticesinothercountries,andwith reference to theUNBangalore Principles of Judicial Conduct and theLatimerHousePrinciples. Ihaving tenderedanAffidavitandLetter to theHon.Speaker of Parliament of Sri Lanka, on the saidmatter, publicly supported theimpeachmentofChiefJusticeShiraniBandaranayake,andthejustificationforthesame,with facts and reasons therefor as set out in the Statement givenbelow.Notonlydid Iespousethesameatpublic foraand in themedia,butalsomaderepresentations to the international institutions, agencies and associationssettingoutthefacts,vis‐à‐vis,mysuchstance.Subsequently,Icametoknowthatonesuchparty,namely,BarHumanRightsCommitteeofEnglandandWales,onwhosebehalfacastigatingReporthadbeengivenbyGeoffreyRobertsonQ.C.ofUK, without he having dealt with my representations, was unreliable anddiscredited,duetothenon‐disclosureofhisgraveconflictofinterest.

http://justification-for-supporting-the-impeachment-of-chief-justice.com/

Click here for Media Exposés

Click here for Media Exposés

Nihal Sri Ameresekere, F.C.A., F.C.M.A., Fellow C.M.A., C.G.M.A., C.F.E. Associate, American Bar Association Co‐ordinator, International Association of Anti‐Corruption Authorities Ex‐Board Member, International Consortium on Governmental Financial Management

Returning to Sri Lanka after a short sojourn overseas, I learnt that the Government had hastily introduced an ‘Urgent Bill’ to enact the “Revival of Underperforming Enterprises and Underutilized Assets Act”. The Bill placed before Parliament on November 8, 2011, was passed on November 9, 2011, and certified by the Hon. Speaker on November 11, 2011, but so announced by him in Parliament only on November 22, 2011. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’ ) Article 122 of the Constitution enables laws to be enacted urgently, when certified as ‘Urgent’ in the ‘national interest’ by the Cabinet of Ministers, with the President referring the Bill to the Chief Justice for a Supreme Court Special Determination – ‘as to whether such Urgent Bill is inconsistent with the Constitution ?’ The Supreme Court has to make its Special Determination within 24‐hours, or not exceeding 3‐days.

The aforesaid Bill certified as ‘Urgent’ on October 19, 2011 by the Cabinet Secretary had been received by Chief Justice, Shirani Bandaranayake on Friday, October 21, 2011, and listed by her over the weekend on Monday, October 24, 2011, having noticed only the Hon. Attorney General, without any notice, whatsoever, to any of the parties affected, to be heard by a Supreme Court Bench, presided by her, with Justices P.A. Ratnayake and C. Ekanayake, who upon such exclusive Hearing, had made the Special Determination dated October 24, 2011, which had been tabled in the Parliament of Sri Lanka on November 9, 2011. Thus, it was an impossibility for any party affected to have known to have appeared in the Supreme Court on Monday, October 24, 2011. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’ )

As per Article 121 of the Constitution, any citizen is entitled, within one week, to challenge the constitutionality of a Bill, whereas such opportunity is denied in the case of an ‘Urgent Bill’, in terms of Article 122 of the Constitution, which the Cabinet of Ministers deems ‘Urgent’ in the ‘national interest’ and the President refers the same to the Chief Justice for a Special Determination of the Supreme Court, as to whether any provisions of such Bill is inconsistent with the Constitution ‐ viz:

Special exercise of

constitutional

jurisdiction in respect

of urgent Bills

“122. (1) In the case of a Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest, and bears an endorsement to that effect under the hand of the Secretary to the Cabinet-

(a) the provisions of Article 78 (1) and of Article 121, shall subject to

the provisions of paragraph (2) of this Article, have no application ;

(b) the President shall by a written reference addressed to the Chief Justice, require the special determination of the Supreme Court as to whether the Bill or any provision thereof is inconsistent with the Constitution. A copy of such reference shall at the same time be delivered to the Speaker ;

(c) the Supreme Court shall make its determination within twenty-four

hours (or such longer period not exceeding three days as the President may specify) of the assembling of the Court, and shall communicate its determination only to the President and the Speaker

(2) The provisions of paragraph (2) of Article 121 shall, mutatis mutandis, apply to such Bill.”

Therefore, the Constitution provides an inbuilt safeguard in Article 123(3) of the Constititon, mandating that an ‘Urgent Bill’ shall be deemed to have been determined as inconsistent with the Constitution, if any doubt thereon is entertained by the Supreme Court ‐ viz:

Determination of the Supreme Court in respect of Bills.

“123. (3) In the case of a Bill endorsed as provided in Article 122, if the Supreme Court entertains a doubt whether the Bill or any provision thereof is inconsistent with the Constitution, it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution, and the Supreme Court shall comply with the provisions of paragraphs (1) and (2) of this Article.” (Emphasis added)

In fact by the Nineteenth Amendment to the Constitution enacted on May 15, 2015, Articles 30 and 31 thereof respectively repealed Articles 122 and 123(3) of the Constitution, whereby Parliament of Sri Lanka re‐enforced the fact that an ‘Urgent Bill’ under Article 122 of the Constitution had been governed by Article 123(3) of the Constitution. ‐ viz:

Repeal of Article 122 of the Constitution. Amendment of Article 123 of the Constitution

“30. Article 122 of the Constitution is hereby repealed.” “31. Article 123 of the Constitution is hereby amended by the repeal of

paragraph (3) of that Article.” The aforesaid Special Determination of October 24, 2011 was replete with doubts entertained by the Supreme Court, with queries raised by the Supreme Court answered ex‐parte by a Deputy Solicitor General, appearing for Hon. Attorney General Mohan Peiris, P.C., as amicus‐curiae, in the absence of any of the parties affected. Thus the Bill, as per Article 123(3) of the Constitution, stood deemed, as constitutionally mandated, to have been determined as inconsistent with the Constitution. The Supreme Court was constitutionally estopped and debarred from having determined otherwise.(Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’ ) In fact, one of the startling questions raised had been pertaining to Article 157 of the Constitution, which expressly prohibits enactment of any law, in violation of International Treaties or Agreements passed by Parliament, except in the interest of ‘national security’, whereas the Special Determination of October 24, 2011, has permitted the same for ‘public purposes’, thereby overwriting or effectively amending the Constitution, which the Supreme Court was constitutionally debarred from doing. The Bill itemizing 36 private entities as ‘under‐utilized’ and one entity, Hotel Developers Lanka PLC, as ‘under‐performing’, (whereas judicial power had already been invoked to re‐structure the said Company), vested them with the Government, in essence, ad hominem legislation, which in a previous instance had been struck down as ultra‐vires and invalid by the Privy Council in re ‐ Liyanage and Others V. The Queen [1965] UKPC 1. In the aforesaid instance of the said ‘Urgent Bill’, it had been sans any transparently evaluated selection process, violative of human rights, and without any notice to the parties affected, thereby denying them natural justice. Chief Justice, Shirani Bandaranayake and the other 2 Justices had dismally failed to take cognizance of the foregoing, in making the Special Determination of October 24, 2011. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’ ) I, as a promoter and stakeholder of HDL, being unaware that the Bill was certified on November 11, 2011 by the Hon. Speaker, filed on November 14, 2011, a Fundamental Rights Application in the Supreme Court SC (FR) No. 534/2011, impugning the Bill, inasmuch as the Supreme Court in terms of Article 4(d) of the Constitution, was constitutionally bound to secure and advance fundamental rights, and not to abridge, restrict or deny such rights. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’ ) viz:

Exercise of Sovereignty.

4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :-

(d) the fundamental rights which are by the Constitution declared

and recognized shall be respected, secured and advanced by all the organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided; and

Having been indisposed, together with my Application, I tendered a Medical Certificate, seeking to appear within two weeks. Five other parties had also previously filed Applications challenging this Bill. These Applications had been listed for Hearing on November 15, 2011, before a 5‐Judge Supreme Court Bench, constituted by Chief Justice, Shirani Bandaranayake. Disregarding my Medical Certificate, she had listed my Application, also to be heard the very next day, November 15, 2011. Significantly, the Supreme Court Registrar personally phoned urging me to attend Court. I declined to do so. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’)

At my request, the Registrar had submitted my Application, with the Medical Certificate, to the 5‐Judge Bench, hearing the other Applications. The presiding Justice, N.G. Amaratunga had permitted me to seek another date to support my Application, whilst dismissing in‐limine the other 5 Applications, with the Bill having been enacted into law upon being certified on November 11, 2011 by the Hon. Speaker, which however was announced to the Parliament only on November 22, 2011. Under Article 80(3) of the Constitution, Supreme Court became functus from entertaining any challenge to a Bill, which was thereafter an Act ‐ viz:

When Bill becomes Law.

“80.(3) Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever”

Being unaware as aforesaid, that the Speaker had certified the Bill, I, on November 17, 2011 also

submitted an Application SC (SD) No. 2/2011 challenging the Bill in terms of Article 121 of the Constitution, which Application was summarily rejected by Chief Justice, Shirani Bandaranayake,

minuting in her Chambers that – “any party that had wanted to intervene should have done so at the time the Bill was taken before the Supreme Court ”, notwithstanding she having been well aware that such intervention had been made an impossibility as aforesaid. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’)

However, I was permitted to support my Fundamental Rights Application SC (FR) No. 534/2011 on November 25, 2011, before 3‐Judges of the above 5‐Judge Bench, presided by Justice, N.G. Amaratunga. At the very outset, submitting to Court, that I was unaware that the Bill had been certified into law, when I filed my Application on November 14, 2011, and that I became aware only when the Speaker made such announcement in Parliament on November 22, 2011, conceding that I am ousted from challenging a Bill that had become an Act, I sought a review and rectification of the Special Determination of October 24, 2011, which I submitted was not ousted under the above Article 80(3) of the Constitution. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) I stressed that the Supreme Court is vested with an inherent right to review and rectify its own Special Determination of October 24, 2011, and if rectified in terms of the mandatory provision of Article 123(3) of the Constitution, then the onus would lie on the Hon. Speaker and Parliament to decide, as what ought be done. The 3‐Judge Bench, presided by Justice N.G. Amaratunga, who had previously dismissed the other 5 Applications on November 15, 2011, having been convinced of my such stance entertained my Application, and directed issuance of Notices on the Respondents, and permitted me, as requested, to tender an Amended Petition by December 16, 2011, which I complied with. The Registrar as directed issued Notices on the Respondents for January 26, 2012. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) Since I was seeking a review and rectification of the Special Determination of October 24, 2011, as I rightfully and lawfully might, made an Application on January 18, 2012, under Article 132 of the Constitution, for the Chief Justice, Shirani Bandaranayake to constitute a Bench for such review, also seeking a Bench of 5 or more Judges ‐ viz:

Sittings of the Supreme Court

“132.

(1) The several jurisdictions of the Supreme Court shall be ordinarily exercised at Colombo unless the Chief Justice otherwise directs.

(2) The jurisdiction of the Supreme Court may be exercised in different matters at the same time by the several Judges of that Court sitting apart:

(3) The Chief Justice may -

(i) of his own motion ; or

(ii) at the request of two or more Judges hearing any matter; or

(iii) on the application of a party to any appeal, proceeding or matter if the question involved is in the opinion of the Chief Justice one of general and public importance,

(4) The judgment of the Supreme Court shall, when it is not an unanimous decision, be the decision of the majority.”

However, instead of constituting the same Bench, presided by her, which made such Special Determination of October 24, 2011 to hear my Application for a review, which was the normal practice in Sri Lanka, she on the contrary, directed my Application for review be heard on February 9, 2012 by the same Bench, presided by Justice N.G. Amaratunga, which had entertained my Application on

November 25, 2011 and issued Notices on the Respondents. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) I made extensive submissions for nearly 1½ hours on February 9, 2012, tendering exhaustive Written Submissions affording clarifications, amply demonstratedly establishing that the Special Determination of October 24, 2011 could not stand, in that, Article 123(3) of the Constitution mandatorily had inherently deemed the said ‘Urgent Bill’ to have been determined as inconsistent with the Constitution, and that the Supreme Court stood functus to have determined otherwise. I cited the Case of the Chilean President Pinochet in the House of Lords, where one Committee of the House of Lords, set aside the Decision by another Committee, purely on grounds of alleged perceived judicial bias, disqualifying one Lord, on the premise that his wife was employed in a mere administrative capacity by Amnesty International, an Intervenient‐Party. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) Obviously conceding the merits and correctness of my submissions, presiding Justice N.G. Amaratunga, intimated to me, that though in UK, another Bench could review and set aside a Decision of one Bench, the practice in Sri Lanka was that, the same Bench must review its own decision. I promptly drew attention to my above Application of January 18, 2012 under Article 132 of the Constitution for such review of the Special Determination of October 24, 2010 by Chief Justice, Shirani Bandaranayake, and whilst knowing such fact, that she, herself, had specifically directed that the Bench presided by Justice N.G. Amaratunga hears my Application for such review. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) Justice N.G. Amaratunga, having checked the record to verify my Application of January 18, 2012, taking me and those others present aghast, wittingly or unwittingly, ‘blurted‐out’, with the other two Justices concurring, that they had been directed by Chief Justice, Shirani Bandaranayake ‘only to hear me, but not to grant me Leave to Proceed’, whilst the matter was specifically listed on that day for Support for Leave to Proceed. (Hon. Ravi Karunanayake, then Opposition Member of Parliament, now Finance Minister was present in Court and witnessed what transpired). If such had been the case, the question intriguingly looms large, as to why I was made to so strenuously make lengthy submissions in the very first instance, taking up valuable time of Supreme Court ? Chief Justice, Shirani Bandaranayake had no right, whatsoever, to have directed another Bench, as to how it should decide upon hearing a Party. Was this not grave judicial misconduct on her part ? (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) Confronted with such perverse intimation, I promptly tendered to the 3 Judge Bench, presided by Justice N.G. Amaratunga, a further pre‐prepared Written Submission, containing ‘extracts’ from Supreme Court records, to demonstrate judicial bias and disqualification of Chief Justice, Shirani Bandaranayake, referring to a Petition filed on July 7, 2009 by P.B. Jayasundera, later amended, seeking to re‐assume office, as Secretary Treasury, having been previously debarred by the Supreme Court from holding any public office, by reason of his conduct and actions in a privatization to John Keells Holdings PLC, annulled on July 21, 2008 as unlawful, illegal and fraudulent in SC (FR) No. 209/2007, and seeking to be relieved of the undertaking given by him to the Supreme Court by way of an Affidavit, having affirmed never to hold public office, directly or indirectly. (Amazon Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’ ) The above Application of P.B. Jayasundera was heard on September 24, 2009 by a 7‐Judge Bench, presided by Chief Justice, J.A.N. De Silva, comprising, Justices Shirani Bandaranayake, Shiranee Tilakawardene, D.J. de S. Balapatabendi, S. Marsoof, K. Sripavan and P.A. Ratnayake. However, Justice Shirani Bandaranayake being the most senior Judge, played an assertive role at the said Hearing.

When it was unanimously decided as recorded in the Journal Entry of September 24, 2009 that the two main prayers (a) and (b) of P.B. Jayasundera’s Petition, seeking to vacate the previous Supreme Court Order prohibiting him from holding public office, and to be relieved of the undertaking given by him to the Supreme Court by Affidavit, could not be granted and was refused, it was Justices Shirani Bandaranayake who, giving a new dimension to the English language, urged that somehow relief be granted under incidental prayer (c) – “for such other and further relief ……. ”, with which only Justice Shiranee Tilakawardene dissented; whereas would not any such other and further relief could only have been granted, as supplementary or complementary to the main reliefs, which were refused, and would not the question also arise, as to whether the very main reliefs so refused, could have been indirectly so granted? (Google Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’) Consequent to the privatization of Sri Lanka Insurance Corporation Ltd., also handled, among others, by P.B. Jayasundera, having been annulled previously on June 4, 2009, as unlawful and illegal, in SC (FR) No. 158/2007, the Supreme Court having vested the same in the Government, directed that professionals be appointed to its Board of Directors. Subsequently, Justice Shirani Bandaranayake’s husband, Pradeep Kariyawasam, said to be holding a Diploma in Marketing, among others, had been approved on June 26, 2009 to be appointed, as a Director thereof by a Supreme Court Bench, presided by Justice N.G. Amaratunga, along with Justices K. Sripavan and P.A. Ratnayake. (Amazon Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 4: Sri Lanka Insurance Privatisation ‐ Annulled as Unlawful & Illegal by Supreme Court’) Consequently in July 2009, coincident with P.B. Jayasundera’s Petition dated July 7, 2009 seeking permission of the Supreme Court to reassume Public Office, as Secretary Treasury, Justice Shirani Bandaranayake’s husband had assumed high profile political offices, as Chairman, Sri Lanka Insurance Corporation Ltd., and Director, Lanka Hospitals Corporation PLC. Subsequently in May 2010, he assumed high profile political office, as Chairman, National Savings Bank, a State Bank. In such circumstances, did not Justice Shirani Bandaranayake explicitly stand disqualified on grounds of ‘perceived judicial bias’, from subsequently hearing on September 24, 2009 the Petition of P.B. Jayasundera, and also from making the impugned Special Determination of October 24, 2011, for that matter from having heard any other Application impleaded against the Government ? – vide the House of Lords Case re – Chilean President Pinochet. (Google Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 4: Sri Lanka Insurance Privatisation ‐ Annulled as Unlawful & Illegal by Supreme Court’) Chairman, Sri Lanka Insurance Corporation Ltd., was a functionary under the Secretary Treasury, and thus Justice Shirani Bandaranayake stood precluded from having heard on September 24, 2009 the Application of P.B. Jayasundera to reassume Public Office, as Secretary Treasury. I submitted to the Supreme Court on February 9, 2012 in my SC (FR) Application No. 534/2011 that such was far worse than the aforesaid ‘misdemeanor’ in the Case of Chilean President Pinochet in the House of Lords, which I had cited. In my such further Written Submission, I cited the following ‘dicta’ from the dissenting Judgment of Justice Shiranee Tilakawardene, a Member of the aforesaid 7 Judge Supreme Court Bench ‐ (Amazon Books ‐ ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’)

“Pursuant to a Petition filed by the 8th Respondent Petitioner, (P.B. Jayasundera) on 7th July 2009, and twice amended by him on 21st July 2009 and 31st July 2009, this Application was listed before a Bench of 7 judges of the Supreme Court …… ” “Court …… refuses the reliefs sought in paragraphs (a) and (b) of the prayer to the amended Petition dated 31st July 2009. However the Court is inclined to grant other relief under paragraph (c) of the prayer to the amended Petition.”

“The Petitioner, (P.B. Jayasundera) amended the Petition on 21st July 2009 without obtaining permission from Court to do so. More specifically, the supporting Affidavit made in connection with the amendment lacks a signature of a Justice of the Peace/Commissioner, such omission rendering invalid and false the jurat contained therein. The amended Petition dated 21st July 2009, thus remained unsupported by a valid Affidavit, and, consequently, the said Affidavit should have been rejected in limine. When this matter was taken up on 3rd August 2009 a fresh set of papers were filed, consisting of a second amended Petition dated 31st July 2009 and a purported Affidavit dated 31st July 2009, once again without having obtained permission of Court. ”

Whilst Justice Shirani Bandaranayake condoned the foregoing, in my public interest Application SC (FR) No. 481/2009 then pending re – purported Oil Hedging Deals perpetrated on the Ceylon Petroleum Corporation, she on the contrary on November 19, 2009, directed me to support by Motion to amend my Petition, and get prior approval of the Supreme Court, in terms of the Supreme Court Rules, and fixed the matter of Amending my Petition for Support on February 11, 2010. (Google Books – ‘Derivative / Hedging Deals by Citibank, Standard Chartered Bank, Deutsche Bank, with Sri Lanka Government's Petroleum Corporation ‐ Dubious & Illegal ?’ ) Furthermore, Rule No. 30(1) of the Supreme Court Rules, stipulates that in an Appeal or Application no party shall be entitled to be heard, unless without having previously lodged Written Submissions. (Emphasis added)

The Supreme Court Rules 1990 Published in the Gazette of the Democratic Socialist Republic

of Sri Lanka (EXTRAORDINARY) No. 665/32 – FRIDAY, JUNE 07, 1991

PART II

GENERAL PROVISIONS REGARDING APPEALS AND APPLICATIONS 30. (1) No party to an appeal shall be entitled to be heard, unless he has previously lodged five

copies of his written submissions (hereinafter referred to as “submissions”), complying with the provisions of this rule.

Though I, appearing in person on September 24, 2009, in this further Application by P.B. Jayasundera in SC (FR) No. 209/2007 was the only party who had filed Written Submissions, P.B. Jayasundera’s Counsel was afforded unlimited time to make repetitive Submissions before the 7‐Judge Bench, which sat solely on the matter the whole day, and the Counsel for the original Petitioner too was permitted ample time. Ironically, I, the only person who was entitled to make Submissions, as per the aforesaid Supreme Court Rules, was granted a meagre limit of 10 minutes by presiding Chief Justice Asoka de Silva, with Justice D.J. de S. Balapatabendi having futilely endeavored to prevent me from even making submissions. (Amazon Books ‐ ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’) Ironically, Chief Justice Asoka de Silva, at the Ceremonial Sittings of the Supreme Court to welcome him, in his Address, inter‐alia, stated thus – “I may be permitted to draw your attention to a verse in the Dhammapada – ‘A man is not a just Judge merely because he arbitrates cases hastily without proper care. A wise Judge would investigate and give his decision without being partial.’ ” (Daily News June 12, 2009). Chief Justice Asoka de Silva at the Opening Ceremony of a new Court in Muttur had stated ‐ “As members belonging to a noble profession and responsible for maintenance of the rule of law and administration of justice, we must not tolerate any kind of corruption, nepotism, et al” (Daily News July 10, 2010)

In fact, at the hearing into the original SC (FR) Application No. 209/2007, I had appeared in person, as a Respondent, and had made extensive submissions, with exhaustive Written Submissions, to have successfully annulled on July 21, 2008 the perverse privatization put in issue in the said Case, the Judgment in which had severely castigated P.B. Jayasundera, consequent to which he was compelled to vacate Public Office. ‐ (Google Books ‐ ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’) Justice D.J. de S. Balapatabendi’s son, then married to Chief Justice J.A.N. de Silva’s daughter, had accepted a political appointment, as the Second Secretary, Sri Lanka Embassy in The Hague, whereby would not both these Justices have been precluded, on grounds of ‘perceived judicial bias’, from having heard on September 24, 2009 the Petition of P.B. Jayasundera ? ‐ vide the House of Lords Case re – Chilean President Pinochet. Ironically, Justice Shirani Bandaranayake, herself, after her impeachment, by Letter in May 11, 2013*, released to the media, addressed to the Director General, Commission to Investigate Allegations of Bribery or Corruption, setting out the aforesaid connection and facts between the two, alleged biased conduct on the part of Chief Justice, J.A.N de Silva and Justice D.J. de S. Balapatabendi. (Colombo Telegraph ‐ *Full Text: Letter By Chief Justice Shirani Bandaranayake To DG Bribery Commission 5 Judgments (one jointly) were delivered on October 13, 2009 as per Decision made on September 24, 2009, by 6 Judges of the 7 Judge Bench of the Supreme Court, with a further inexplicable dimension to this ‘fiasco’ that the only dissenting Judgment of Justice Shiranee Tilakawardene of the 7 Judge bench of the Supreme Court had been cannibalized, changing the printing to a larger font, with new page numbers given to exclude two vitally pertinent pages therefrom, with the smaller original font, bearing the signature of Justice Shiranee Tilakawardene included as the last page, which commenced with an incomplete paragraph, whilst the preceding concocted page with the larger font ending with a completed paragraph, thereby lucidly disclosing such deliberate manipulation, into which, no inquiry, as warranted, was held consequent to my such discovery and complaint; I had obtained certified copies of both versions of the Judgment from the Supreme Court Registrar ! (Amazon Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’) I discovered that two complete pages of the sole dissenting Judgment of Justice Shiranee Tilakawardane had been omitted by the manipulation on the computer of the font type and size of the text. This had been done by changing the font to a ‘larger size’ viz – ‘Century Gothic Font’ of the first 15 pages, the text of the first 15 pages had thus occupied 17 pages, and the 16th and 17th pages of such ‘larger font’ viz – ‘Century Gothic Font’, had been removed.

Thereafter, the first 14 pages of such larger font viz – ‘Century Gothic Font’ had been photocopied on the two sides of 7 sheets, and the 8th sheet contained the photocopy of the 15th page of such ‘larger font’ viz – ‘Century Gothic Font’ on the front side, and on the reverse of the 8th sheet was photocopied the 16th page of the ‘smaller font’ viz – ‘Calibri Font’, bearing the signature of Justice Shiranee Tilakawardane at the end. (Google Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’)

By such ‘manipulation’ two pages of the text of the sole dissenting Judgment of Justice Shiranee Tilakawardane had been omitted and issued by the Supreme Court Registry on 13th October 2009, and based upon which, media reports had been widely published on 14th October 2009 and thereafter, without having reported the important and relevant contents on the Constitutional limitations of the exercise of executive power by the President, which ought to have been reported in the media, in the very public interest; whereas by such ‘manipulation’ such important and relevant contents of the sole dissenting Judgment had been caused to be suppressed from being published in the media. (Amazon Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’) It is by some coincidental destiny, that I came to know from a very close kinsman, resident in Kandy, of one of the 7 Justices, who was a Member of the 7 Judge Bench, that the day before the Judgments were delivered on Tuesday, October 13, 2009, the kinsman having come to Colombo had been residing at this Justice’s residence, and in the night of Monday, October 12, 2009 at about 7.00 p.m., this Justice had been summoned for an urgent nocturnal Meeting by Chief Justice Asoka de Silva, and therefore he had rushed‐off immediately to the Supreme Court, carrying the Files pertaining to the above Case, presumably after the dissenting Justice had informed of the Dissenting Judgment. Chief Justice Asoka de Silva in an interview reported under the Caption – ‘People need justice and fair play’ had, inter‐alia, stated ‐ “The judiciary must be strictly impartial and above board. There will be no room for ‘Gossip’ and ‘Telephone’ justice during my tenure. I will not allow influencing of any member of the judiciary directly or indirectly and they will be severely protected from undue influence from political or any other influence or incentives. Judges must be of ‘Good Character’ and standing before the people to be respected and believed by the public.” ‐ (Sunday Observer ‐ July 19, 2009) Addl. Solicitor General, as amicus‐curiae, for Attorney General Mohan Peiris, P.C., and D.S. Wijesinghe, President’s Counsel, appearing for Respondent Basil Rajapaksa, M.P., Minister of Economic Development on February 9, 2012 in my SC (FR) Application No. 534/2011 pertaining to the impugned Special Determination of October 24, 2011 on the aforesaid ‘Urgent Bill’, were taken aback and alarmed by the foregoing ‘disclosures’ made by me before the Supreme Court, and vehemently opposed my such further Written Submission being publicly made known, expressing apprehension of the precipitation of a public calamity and scandal, notwithstanding such disclosures having been made in the very public interest. Hence, presiding Justice N.G. Amratunga directed that the Written Submissions tendered by me be returned and taken out of the Court Record, thereby suppressing such perverse facts from public disclosure. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’)

Nevertheless, comprehensively recording the proceedings in the Supreme Court on February 9, 2012, annexing my above Written Submission and the further Written Submission, I tendered another Application on May 8, 2012 to the Supreme Court to review and reconsider the denial to me of Leave to Proceed as aforesaid, which was rejected in Chambers by Justice N.G. Amaratunga, without having heard me, and significantly, without disputing and/or refuting, what I had placed on record that he had intimated that ‘Chief Justice, Shirani Bandaranayake had directed him and the Bench only to hear me, but not to grant me Leave to Proceed’. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) Subsequently, with the concurrence of the Leaders of all Political Parties in Parliament, by the Ruling pronounced on October 9, 2012 pertaining to Supreme Court Special Determinations, Hon. Speaker of Parliament, inter‐alia, pronounced that the Supreme Court could give earnest consideration to re‐visit erroneous Special Determinations, and to rectify bona‐fide errors, ‘to make a vested right of a citizen effective, as intended in the Constitution’. In the context of such Ruling pronounced by the Hon. Speaker of Parliament, including the Supreme Court Proceedings of February 9, 2012, I promptly tendered on October 18, 2012, a further Petition in my Application SC (SD) No. 2/2011, annexing all Documents, urging the matter of the Special Determination of October 24, 2011 be re‐visited and reviewed by the same Bench, which made the said Special Determination, for the same to be rectified, as mandated by Article 123(3) of the Constitution. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) Unlike in the previous instance of my Application for review of January 18, 2012, made under Article 132 of the Constitution, which had been correctly forwarded, as required, directly to the Chief Justice, Shirani Bandaranayake, however, in this instance, the listing Justice, K. Sripavan, prevented my Application for a review from being directly forwarded to Chief Justice, Shirani Bandaranayake to be considered by her, in terms of Article 132 of the Constitution, read with Article 123(3) thereof. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) Instead, Justice K. Sripavan had taken upon himself to adjudicate upon the very matter in issue, specifically the interpretation of Article 80(3) of the Constitution. Sitting alone in Chambers on October 22, 2012, he without having heard me, and disregarding the above Ruling pronounced by the Hon. Speaker, Justice K. Sripavan had determined ex‐parte that – “This Article (Art 80 (3)) must be interpreted according to its true purpose and intent as disclosed by the phraseology in its natural signification”, whereas constitutional interpretations, as per the Constitution, ought have been made by a Bench of the Supreme Court, generally as a precedent by 5 or more Judges, on an important matter, such as this ! Justice K. Sripavan, had gone on to further state that – “If a party perceives “judicial bias & disqualification” against a member of the Bench, such party should have raised objections at the time the Bill was taken up for hearing”. Such was an absurdity given the secrecy and haste disclosed hereinbefore in making the Special Determination of October 24, 2011 sans any notice to the public, and more importantly to the effected parties named in the said ‘Urgent Bill’ ! Given the averments in my Petition, in the context of certain circumstances, I would have objected to Justice K. Sripavan adjudicating on my Petition, but I had no such opportunity to have done so, since, he had dealt with the matter, by himself, in his Chambers. The above was a matter, directly concerning the conduct of Chief Justice, Shirani Bandaranayake, which therefore ought to have been dealt with by her, herself, and not by Justice K. Sripavan, raising the lurking question, as to whether he too had been directed to so state, inasmuch as Justice N.G. Amaratunga, after he had entertained my SC (FR) Application No. 534/2011 on November 25, 2011 and had issued Notices on the Respondents, had been directed by her previously ‘only to hear me, but not to grant me Leave to Proceed’. In any case, this was not a matter to have been pointed out by any person, but warranted

to have been realized and acted upon by Chief Justice, Shirani Bandaranayake, herself, which concerned her husband holding high profile political Public Offices as aforesaid. (Google Books – ‘IMF, World Bank & ADB Agenda on Privatisation – Vol. 3: Colombo Port Bunkering Privatisation – Annulled as Illegal & Fraudulent by Supreme Court’ / ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’/ ‘Politics, Justice & the ‘Rule of Law’) Nevertheless, subsequently on the very next day, October 23, 2012, Chief Justice, Shirani Bandaranayake had minuted agreeing with the perverse opinion of Justice K. Sripavan, with Justices N.G. Amaratunga, P.A. Ratnayake and C. Ekanayake, thereafter concurring therewith. Very significantly, the assertion made by me at the very first instance on February 9, 2012 of her judicial bias and disqualification, stood un‐refuted, undisputed and therefore admitted and not denied by Chief Justice, Shirani Bandaranayake, herself. The foregoing conduct and actions by Chief Justice, Shirani Bandaranayake and the above Justices had been with sheer disregard of the Ruling which had been previously pronounced on October 9, 2012 by the Hon. Speaker of Parliament, with the unanimity of all Political Leaders in Parliament, that Supreme Court could be re‐visit to rectify bona‐fide errors in Special Determinations, ‘to make a vested right of a citizen effective, as intended in the Constitution’. (Amazon Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’ / ‘Politics, Justice & the ‘Rule of Law’) I, as one of the promoters and stakeholders of Hotel Developers (Lanka) PLC, the owning Company of Colombo Hilton, was a gravely adversely affected party, by the Special Determination of October 24, 2011 made ultra vires the Constitution, denying natural justice and flagrantly violating Article 17 of the United Nations Universal Declaration of Human Rights, since the said Company had also been surreptitiously included by certain interested parties to be so vested in the Government, under the guise of this ‘Urgent Bill’; whereas I, as rightfully and lawfully might, had invoked judicial power, to re‐structure this Company in HC (Civil) WP Case No. 52/2011/CO, under and in terms of the Companies Act No. 7 of 2007, which judicial power, as a component of sovereignty, constitutionally was inalienable, as had been determined in October 2002 by a 7 Judge Bench of the Supreme Court, which facts I had adduced in my Petition. (Google Books – ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’) I had previously instituted a litigation on grounds of fraud against the Japanese Consortium vis‐à‐vis the construction of the Colombo Hilton Hotel in D.C. Colombo Case No. 3155/Spl, and had succeeded, with the Supreme Court, inter‐alia, pronouncing in SC (Appeals) Nos. 33 & 34/1992, that I had a real prospect of success of proving the fraud, and accordingly, the Japanese Consortium was restrained from claiming and/or receiving any monies from Hotel Developers (Lanka) PLC or under State Guarantees given by the Government for such construction. I had subsequently proved irrefutable evidence of criminality before a Special Presidential Commission investigating into the said fraud, and such was not disputed by the Japanese Architects and was admitted by the UDA. (Ameresekere v Mitsui & Co. Ltd., and Others [1992] LRC (Comm) ). (Amazon Books – ‘Colombo Hilton Hotel Construction ‐ Fraud on Sri Lanka Government – Vol. 1 – Sri Lanka’s First Derivative Action in Law’ / ‘Colombo Hilton Hotel Construction ‐ Fraud on Sri Lanka Government ‐ Vol. 2 ‐ Criminality Exposed, but Perversely Covered‐up’) Had I pursued with my litigations, I would have most certainly succeeded and would have been a major stakeholder of Hotel Developers (Lanka) PLC today and not the Government of Sri Lanka. Nevertheless, due to diplomatic pressures exerted by the Japanese Government, the Sri Lankan Government urged me to settle and withdraw my litigations, based on contractual agreements entered into with me and the Sri Lanka Government, wherein on my insistence, I obtained on the fraudulent Claims made on the Japanese Loans under State Guarantees, a write‐off of Jap. Yen. 17,586 Mn., in June 1995, then SL Rs. 10,200 Mn., which as at June 2016 amounts to a value of SL Rs. 89 Billion, and the re‐scheduling of the balance Loan, which as at June 2016 amounts to SL Rs. 51.3 Billion, over a further period of 16 years, at a reduced rate of interest. (Google Books ‐ ‘Colombo Hilton Hotel Construction ‐ Fraud on Sri Lanka Government Vol. 3 ‐ Settlement of a Fraud’ / ‘Socio‐Political Realities ‐ Hilton Hotel Fiasco & Ad hominem Legislation ‐ Expropriation Law’)

In September, 2014 the Japanese Prime Minister Shinzo Abe visited Sri Lanka, with screaming media headlines – “ABE ARRIVES WITH YEN 13B LOAN” (i.e. comparatively at June 2016 values SL Rs. 15.5 Billion) The above write‐off obtained by me, comparatively as at June 2016 values amounts to over 5½ times the Loan given by the Japanese Prime Minister Shinzo Abe, and whereas what I had obtained was a complete write‐off, and not a Loan to be re‐paid.

Likewise, it ought be compared with the further Japanese Loan of SL Rs. 50 Billion granted by Japanese Prime Minister Shinzo Abe in May 2016, when Sri Lankan President Maithripala Sirisena visited Japan, as an Invitee for the G7 Summit.

A perverse highly questionable restraining order was made by Justice C.V. Vigneswaran of the Court of Ap