Injustice by Sri Lankan Supreme Court: A Tale of Double Standards
The Supreme Court of Sri Lanka, the apex judicial body of the nation, is constitutionally mandated to be the ultimate guardian of justice and the rule of law. However, the case of SC/Rule/3/2017, which resulted in the permanent disbarment of public interest litigator Nagananda Kodituwakku on February 29, 2024, raises grave concerns about the erosion of these very principles. The proceedings and verdict in this case compel a critical examination of whether the highest court has itself become an instrument of injustice, suppressing dissent and protecting the powerful.
A Question of Jurisdiction and the Expansion of Power
At the heart of the legal challenge is the question of whether the Supreme Court acted within its statutory authority. The action against Kodituwakku was taken under Section 42(2) of the Judicature Act, which permits the removal of an attorney-at-law found guilty of "deceit, malpractice, crime or offence."
The legal analysis provided by the Asian Human Rights Commission (AHRC) identifies a fundamental flaw in the court's reasoning. The judgement allegedly fails to establish how Kodituwakku's conduct fell within the specific, limited scope of the Act. It is argued that the court has no power to expand the definition of "malpractice" to include the actions that were the subject of this case.
"There is no statutory basis for this judgement as the matters dealt with in the judgment are not within scope of the Section 42 (2) of the Judicature Act."
By effectively expanding the scope of the law without legislative authority, the Supreme Court appears to have acted beyond its jurisdiction, an act that in itself constitutes a violation of the rule of law. This action is considered by many legal observers to be a prime example of judicial overreach.
A Violation of Natural Justice and Due Process
The concept of justice is inextricably linked to the fairness of the process. The case against Nagananda Kodituwakku is marred by allegations that the proceedings were fundamentally unfair, violating the most basic tenets of natural justice.
Kodituwakku, representing himself, was reportedly denied the opportunity to cross-examine witnesses or present a comprehensive defense. Furthermore, the final judgment was allegedly delivered without his knowledge, yet the court falsely stated that he was present. A punishment was imposed without a clear determination that a specific charge under Section 42(2) had been proven. The AHRC notes that the court "fails to come into any finding on any matter relating to in what way the 42(2) could be applied to this case."
The penalty itself—permanent removal and a prohibition on filing public interest litigation—was described as "completely disproportionate" and a violation of the principles of a fair hearing guaranteed under the International Covenant on Civil and Political Rights (ICCPR). This denial of basic procedural rights paints a picture of a court more concerned with silencing a critic than with upholding justice.
The Chilling Effect on Public Interest Litigation
The ruling in SC/Rule/3/2017 has consequences that extend far beyond Mr. Kodituwakku. The decision to prevent him from filing public interest litigation, even as a citizen, strikes at the heart of access to justice and anti-corruption activism in Sri Lanka.
Kodituwakku was a prominent figure who had filed over 45 cases on matters of national importance, including challenging the illegal import of carcinogenic palm oil, exposing corruption in the BMW car registration tax evasion scandal (CA/Writ/108/2018), and seeking justice for victims of the Litro gas explosions (CA/Writ/609/2022). Many of these cases were stalled or dismissed following his disbarment. By punishing a lawyer who used his legal skills to hold power to account, the Supreme Court has created a "chilling effect" that will likely discourage other lawyers from taking on similarly controversial cases. This effectively shields government and judicial corruption from legal scrutiny and undermines the judiciary's role as a check on power.
Double Standards: A Question of Judicial Accountability
The case of SC/Rule/3/2017 becomes even more troubling when examined in the context of the Supreme Court's and Bar Association's treatment of other prominent legal figures. If the standard of "unbecoming conduct" used to disbar Kodituwakku was a legitimate basis for disciplinary action, one must question why similar standards have not been applied to high-profile lawyers whose actions appear far more egregious.
The Judge's Conflict of Interest
The bench that disbarred Kodituwakku consisted of Justices Priyantha Jayawardena, Padman Surasena, and S. Thurairaja . Critically, Kodituwakku had previously named all three judges in judicial corruption complaints filed before the Supreme Court . Despite Kodituwakku's formal motions requesting a new, independent panel, all were rejected—an act described as demonstrating "abuse of power" . This is not merely a procedural irregularity; it is a fundamental violation of natural justice. When a judge sits in judgment over a person who has filed a complaint against them, the appearance of bias is irrefutable.
A Comparison of Conduct
The standard of conduct applied to Kodituwakku contrasts starkly with the treatment of other influential lawyers. Dr. Wijeyadasa Rajapakshe, a former President of the Bar Association of Sri Lanka and current Member of Parliament, has a history of challenging the authority of the Supreme Court .
In 2012, Rajapakshe led the Bar Association in publicly supporting former Chief Justice Shirani Bandaranayake during her impeachment . More significantly, as President of the Bar Association, he "legally challenged the parliamentary process to impeach Chief Justice Shirani Bandaranayake" . This was a direct and public challenge to both the Supreme Court's authority and parliamentary procedure. His action is, on its face, a far more serious "contempt" of the judicial and legislative branches than Kodituwakku's procedural request to the court.
Despite this, Rajapakshe was not disbarred. Instead, he was appointed Minister of Justice—twice—in 2015 and again in 2022 . Similarly, Ali Sabry PC, another prominent lawyer who has held the portfolio of Minister of Justice multiple times, faced no professional consequences for his role in politically contentious legal matters .
The Bar Association's Selective Silence
The Bar Association of Sri Lanka was instrumental in the proceedings against Kodituwakku . Yet, the same Bar Association that moved against Kodituwakku has been conspicuously silent on the actions of its own past presidents and prominent members. The Bar Association has voiced concern over "draconian" contempt laws that threaten lawyers and has promised to "robustly defend" the professional rights of lawyers . It has not, however, shown the same concern for Kodituwakku, a fellow lawyer who was disbarred without a fair hearing.
This selective application of professional standards creates the perception that the Bar Association and the Supreme Court are not impartial guardians of professional conduct but enforcers of a double standard—one that protects the powerful while ruthlessly punishing critics.
The case of SC/Rule/3/2017 represents a profound crisis of legitimacy for the Supreme Court of Sri Lanka. By acting beyond its legal jurisdiction, violating due process, penalizing a lawyer for his public interest work, and applying a double standard to powerful figures, the Court has eroded public trust in the very institution meant to be the ultimate guardian of justice. The silence of the Bar Association and the Attorney General in the face of this injustice further compounds the problem, suggesting a systemic failure to protect the rule of law. In its pursuit of punishing a single individual, the Supreme Court has potentially dealt a severe blow to the principles of justice, transparency, and accountability that are the cornerstones of a democratic society, creating a dangerous precedent for all future litigants.