In
the
matter
of
a
Rule
in
terms
of
Section
42(2)
of
the
Judicature
Act
No
2
of
1978,
against
Nagananda
Kodituwakku,
Attorney-‐at-‐Law
Justice
Wijith
Malalgoda
Hon’
Judge
in
the
Supreme
Court
SC/Rule/1/2016
Complainant
Nagananda
Kodituwakku
Attorney-‐at-‐Law
99,
Subadrarama
Road
Nugegoda
Respondent
To:
THE
HON’
CHIEF
JUSTICE
AND
THE
OTHER
HON’
JUDGES
OF
THE
SUPREME
COURT
OF
THE
DEMOCRATIC
SOCIALIST
REPUBLIC
OF
SRI
LANKA
I,
NAGANANDA
KODITUWAKKU,
of
99,
Subadrarama
Road,
Nugegoda,
being
a
Buddhist
do
hereby
solemnly
and
truly
declare
and
affirm
as
follows:-‐
I
am
the
affirmant
above-‐named
and
I
affirm
to
the
facts
herein
contained
from
my
personal
knowledge
and
by
reference
to
the
records
available
to
me
and
I
do
so
on
behalf
of
myself.
Parties
to
the
Application
1. I
state
that
I
am
the
Respondent
in
the
above
matter
and
a
Public
Interest
Litigation
Activist,
a
lawyer
by
profession
in
Sri
Lanka
and
in
the
UK
and
the
Complainant
is
a
Judge
in
the
Supreme
Court
and
formally
the
President
of
the
Court
of
Appeal.
2. I
state
that
I
made
this
sworn
statement
in
reply
to
the
Show
Cause
Notice
(SC/Rule/1/2016)
dated
11th
Aug
2017
served
on
me
on
the
premise
of
a
complaint
made
by
the
Complainant
above
named.
3.
I
state
that
this
charge
sheet
apparently
has
the
objective
of
imposing
sanctions
on
the
only
lawyer
who
has
done
his
utmost
best
to
protect
the
independence
of
the
judiciary
and
to
stop
intimidation
of
judges
by
the
Executive
and
the
Legislature
that
keep
strict
control
over
the
appointments
to
the
Superior
Court
System.
4. I
state
that
this
case
refers
to
an
incident
occurred
more
than
2
½
years
ago
which
had
already
been
dealt
with
by
the
former
Chief
Justice
K
Sripavan
in
2015.
5. I
state
that
the
crux
of
the
matter
in
this
case
is
a
submission
made
by
me
before
a
Bench
presided
over
by
the
Complainant,
on
21st
of
May
2015
requesting
to
appoint
a
different
Bench,
which
would
not
comprise
the
Complainant
to
hear
the
Writ
Application
No
83/2014.
6. I
state
that
before
the
said
oral
submission
was
made
in
the
open
Court
there
was
a
Motion
filed
in
Court
by
me
on
20th
May
2015,
requesting
the
Court
to
refer
the
matter
(CA/Writs/83/2014)
before
a
different
Bench,
and
it
was
intentionally
made
to
avoid
the
relevant
submission
being
mentioned
in
the
open
Court.
(True
copy
of
the
said
seeking
the
appointment
of
a
different
bench
is
attached
hereto
marked
X1)
7. I
state
that
I
was
compelled
to
make
the
said
request
since
I
had
lost
the
trust
and
confidence
in
the
Complainant
after
the
bitter
experience
I
had
with
him
concerning
the
Writ
Application
No.
434/2014.
8. I
state
that
the
Complainant
declined
the
said
request
(referred
to
in
the
paragraph
6
above)
and
called
the
matter
before
him
and
informed
me
that
as
the
President
of
the
Court
of
Appeal
he
would
hear
the
matter
by
himself.
At
that
stage
I
was
compelled
to
inform
that
I
had
lost
trust
and
confidence
in
him
and
therefore
to
appoint
a
different
bench
to
hear
the
case.
Then,
the
Complainant
informed
me
that
he
would
report
the
matter
to
the
then
Chief
Justice
K
Sripavan
with
the
following
remark
made
on
the
case
record.
“…
Matter
be
referred
to
the
Chief
Justice
for
making
a
serious
allegation
of
contempt.
Registrar
is
directed
to
send
the
record
before
the
Hon’
Chief
Justice…
”
9. I
state
that
it
is
pertinent
to
mention
that
it
was
not
the
first
time
a
similar
application
was
made
to
the
Complainant.
On
09th
Feb
2015
a
motion
was
submitted
to
him,
concerning
the
case
CA/Writs/65/2015,
with
a
similar
request
made
to
appoint
a
different
bench
to
hear
the
case,
which
was
allowed
by
the
Complainant.
10. I
state
that
the
said
Motion
dated
09th
Feb
2015
was
supported
with
the
copies
of
letters
dispatched
to
the
Bar
Association
on
22nd
Oct
2014,
Commonwealth
Secretariat
on
31st
Oct
2014
and
a
copy
of
a
press
release
by
the
Bar
Association
dated
14th
Sep
2014,
criticizing
the
improper
appointment
of
the
Complainant,
then
a
Addl
Solicitor
General
as
the
President
of
the
Court
of
Appeal
by
the
then
President
Mahinda
Rajapakse.
(True
copy
of
the
said
Motion
dated
09th
Feb
2015,
letters
addressed
to
the
Bar
Association
(22nd
Oct
2014),
the
Commonwealth
Secretariat
(31st
Oct
2014)
and
the
reply
received
from
Commonwealth
Secretariat
(23rd
Feb
2015)
and
the
press
release
by
the
President
of
the
Bar
Association
published
in
the
Sunday
Times
of
14th
Sep
2014
marked
X2,
X3,
X4,
X5
and
X6
are
attached
hereto)
Writ
Application
challenging
the
nomination
of
the
former
President
Rajapakse
11. I
state
that
at
the
time
of
the
initiation
of
the
case
CA/Writs/434/2014,
referred
to
in
paragraph
7,
the
Complainant
was
the
President
of
the
Court
of
Appeal.
This
Writ
Application
challenging
the
nomination
of
the
former
President
Mahinda
Rajapakse
who
was
a
candidate
for
Presidential
Election
–
2015.
It
was
initiated
with
a
request
made
to
the
Court
to
support
the
matter
before
the
commencement
of
the
Court
vacation
(which
was
due
on
20th
of
Dec
2014)
considering
the
urgency
of
the
matter.
However,
it
went
missing
immediately
after
it
was
duly
filed
at
the
Registry
of
the
Court
of
Appeal
on
15th
Dec
2014.
12. I
state
that
when
President
Rajapakse
was
facing
a
formidable
challenge
from
the
opposition
Presidential
Candidate
Maithreepala
Sirisena
the
case
record,
which
disappeared
after
filing,
was
suddenly
listed
for
support
on
2nd
Jan
2015
during
the
Court
Vacation.
Strangely
Attorney
General
hand-‐delivered
a
letter
to
my
residential
address
on
01st
Jan
2015,
notifying
the
matter,
a
practice
never
adopted
by
the
Attorney
General
under
normal
circumstances.
I
state
that
by
that
time
there
were
numerous
requests
from
many
concerned
citizens
to
withdraw
the
case
claiming
that
the
Presidential
Election
would
be
postponed
with
the
granting
of
the
interim
relief
prayed
for
throwing
a
life-‐line
to
Mahinda
Rajapakse
to
remain
in
power.
Therefore,
respecting
the
popular
demand
a
motion
dated
02nd
Jan
2015
was
filed
in
Court
withdrawing
the
Petition
with
the
reasons
fully
explained.
(A
true
copy
of
the
Motion
dated
02nd
Jan
2015
marked
X7
is
attached
hereto)
Complaint
to
Corruption
Commission
against
the
Complainant
13. Thereafter
on
15th
Feb
2016,
a
formal
complaint
on
Judicial
Corruption
was
made
to
the
Commission
to
Investigate
Allegations
of
bribery
or
Corruption
(hereinafter
referred
o
as
CIABOC)
against
the
Complainant
for
abuse
of
the
judicial
office
to
confer
a
favor
to
the
former
President
Rajapakse.
(The
affidavit
dated
15th
Feb
2016
furnished
to
the
CIABOC
and
the
covering
letter
accompanied
it
marked
X8
and
X9
are
attached
hereto)
14.
Thereafter
to
protect
my
interests
against
the
unfounded
allegations
made
by
the
Complainant,
I
kept
the
Chief
Justice
informed
of
the
abuse
of
office
by
the
Complainant
with
a
request
accompanied
by
an
affidavit
dated
25th
May
2015
to
transfer
the
matter
(CA/Writ/83/2014)
to
be
heard
before
a
different
bench.
(A
true
copy
of
the
communication
delivered
to
the
then
Chief
Justice,
K
Sripavan
dated
25th
May
2015
together
with
an
affidavit
dated
25th
May
2015
explaining
the
circumstances
fully
that
compelled
me
to
request
for
an
appointment
of
a
different
bench
marked
X10
and
X11
is
attached
hereto)
15. I
state
that
further
to
my
submission
dated
25th
May
2015
and
the
reference
made
by
the
Complainant
to
the
Chief
Justice,
an
action
was
taken
by
the
then
Chief
Justice
to
refer
the
matter
(CA/Writs/83/2014)
to
a
different
Bench.
Accordingly,
the
Registrar
of
the
Supreme
Court
returned
the
case
record
to
the
Court
of
Appeal
Registry
on
28th
June
2016
with
the
following
minute
made
by
the
Registrar
of
the
Supreme
Court
addressed
to
the
Registrar
of
the
Court
of
Appeal.
“…
I
have
been
directed
by
the
His
Lordship,
the
Hon’
Chief
Justice
to
return
the
above
case
record
(CA/83/2014).
Please
acknowledge
the
same…”
Right
violation
Case
made
against
the
Complainant
16. I
state
further
that
on
03rd
Aug
2015
I
initiated
a
fundamental
right
Petition
(SC/FR/319/2015)
against
the
Complainant
for
deliberately
delaying
the
justice
for
the
Petitioner
in
the
CA/Writs/83/2014
without
fixing
a
date
for
argument
since
21st
May
2015,
(a
period
of
well
over
a
year),
with
no
order
whatsoever
made
on
the
matter,
which
amounted
to
clear
obstruction
of
justice.
17. I
state
that
on
15th
Feb
2016
the
then
Chief
Justice
ruled
that
the
delay
caused
by
the
Complainant
was
a
judicial
act
which
did
not
amount
to
Administrative
or
Executive
Act
with
a
Cost
Order
of
Fifty
Thousand
Rupees
(Rs
50,000.00)
imposed
on
me
against
the
Attorney
General
for
no
reason
at
all.
(A
true
copy
of
the
proof
of
payment
of
Rs
50,000.00
made
to
the
Attorney
General
on
29th
Feb
2016
by
a
Cheque
no
088980
dated
29th
Feb
2016
marked
X12
and
X13
are
attached
hereto)
18. I
state
that
therefore
on
23rd
of
Feb
2016,
I
made
an
application
for
a
revision
of
the
order
made
on
15th
Feb
2016
and
it
was
never
listed
for
support.
And
I
state
even
a
further
request
dated
08th
March
2016
to
list
the
matter
for
support
was
also
completely
ignored
(A
true
copy
of
the
Motion
filed
in
Court
dated
08th
March
2016
requesting
the
Court
to
list
the
said
revision
application
marked
X14
is
attached
hereto)
Issuance
of
the
Charge
Sheet
19. I
state
that
after
the
appointment
of
the
Complainant
as
a
Judge
in
the
Supreme
Court
and
after
a
lapse
of
more
than
a
year
from
the
date
of
the
incident
reported
by
the
Complainant
(referred
to
in
paragraph
above)
and
I
have
now
been
served
with
this
Charge
Sheet
dated
11th
Aug
2017
on
the
same
matter.
Charge
Sheet
violates
the
Principles
of
Natural
Justice
20. I
state
with
due
respect
that
the
process
adopted
to
issue
a
charge
sheet
on
a
matter
already
dealt
with
(refer
to
paragraph
15
above)
violates
the
fundamental
norms
of
Administrative
Law
and
the
Rule
of
Law.
These
are
governed
by
entrenched
principles
of
administrative
law,
which
prohibits,
inter
alia,
decisions
that
violate
the
principles
of
Wednesbury
Reasonableness
Doctrine,
fairness,
proportionality,
due
process,
the
legitimate
expectations,
and
right
to
freedom
from
arbitrary
and
capricious
decision
making.
21. I
state
that
the
process
adopted
in
framing
the
charge
sheet
sans
any
form
of
investigation/inquiry
whatsoever
without
adhering
to
the
due
process
established
by
law
is
ultra
vires
and
an
illegality,
as
there
has
been
an
excess
of
jurisdiction
which
also
amounts
to
violation
of
the
multiple
principles
of
the
Administrative
Law.
Charge
sheet
violates
UN
and
Commonwealth
Basic
Principles
on
the
Role
of
Lawyers
22. Drawing
Your
Lordship’s
attention
with
due
respect
to
the
Commonwealth
Latimer
House
Principles
which
have
been
ratified
by
the
Government
of
Sri
Lanka
which
is
a
member
in
the
Commonwealth,
I
state
further
that
the
unfounded
allegations
and
initiation
of
contemptuous
proceedings
for
legitimate
criticism
of
the
performance
of
the
judicial
function
is
not
permitted
and
such
proceedings
shall
not
be
used
under
the
Clause
B
of
paragraph
VII
of
the
Commonwealth
Latimer
House
Principles.
(True
copy
of
the
Commonwealth
Latimer
House
Principles,
November
–
2003
marked
X15
is
attached
hereto)