Supreme Court Decision Disenrolling Nagananda Kodituwakku Raises Grave Conflict of Interest Concerns
A Judicial Verdict Tainted by Alleged Bias: The Case for Public Accountability
A Verdict That Shook Sri Lanka's Legal Community
In February 2024, the Supreme Court of Sri Lanka delivered a landmark ruling in case SC/Rule/3/2017, permanently disbarring veteran human rights lawyer Nagananda Kodituwakku from practicing law. The decision effectively silenced one of the nation's most vocal anti-corruption advocates and stalled over 45 public interest lawsuits he had filed concerning electoral fraud, environmental destruction, and financial misconduct.
While the judgment itself was legally significant, what has drawn even greater scrutiny is the composition of the bench that delivered it—a bench comprised of three judges whom Kodituwakku had previously accused of judicial corruption. This article examines the constitutional and legal implications of this apparent conflict of interest and asks whether the public is entitled to answers.
The Conflict of Interest Question: A Fundamental Breach of Natural Justice?
The Bench Under Scrutiny
The panel that decided Kodituwakku's fate consisted of:
| Judge | Role in the Case |
|---|---|
| Justice Priyantha Jayawardena | Named in Kodituwakku's earlier judicial corruption complaints |
| Justice Padman Surasena | Named in Kodituwakku's earlier judicial corruption complaints |
| Justice S. Thurairaja | Named in Kodituwakku's earlier judicial corruption complaints |
The fundamental principle of natural justice—nemo judex in causa sua (no one should be a judge in their own cause)—requires that adjudicators must be impartial and free from bias. When judges preside over cases involving individuals who have previously accused them of misconduct, a reasonable apprehension of bias arises.
The Legal Standard for Recusal in Sri Lanka
Under Sri Lankan law, the duty to recuse is governed by established principles:
Article 107 of the Constitution guarantees the independence of the judiciary, but this independence also carries the responsibility to maintain impartiality.
The Supreme Court's own Rules and the Judicature Act require judges to disqualify themselves where there is a real likelihood of bias.
In Senanayake v. Senanayake [1989] , the Supreme Court held that justice must not only be done but must manifestly and undoubtedly be seen to be done.
"A judge who has a personal interest in the outcome of a case, or who has a previous connection with a party, must recuse themselves to preserve public confidence in the judiciary." – Sri Lankan Supreme Court precedent
Did the Judges Have a Duty to Recuse?
When Kodituwakku filed formal motions requesting an independent panel to hear his case, all such requests were rejected. This raises several critical questions:
Can a judge fairly adjudicate a case involving someone who has accused them of corruption?
Does the rejection of recusal motions in such circumstances constitute a denial of natural justice?
What message does this send about judicial accountability in Sri Lanka?
Constitutional and Legal Framework: The Duty of Impartiality
The Constitutional Mandate
The Sri Lankan Constitution establishes clear principles regarding judicial conduct:
| Provision | Significance |
|---|---|
| Article 107 | Guarantees judicial independence and requires judges to perform their duties without fear or favor |
| Article 12 | Guarantees equality before the law and equal protection of the law |
| Article 14(1)(e) | Guarantees freedom of expression, including the right to criticize the judiciary |
The Disciplinary Jurisdiction of the Supreme Court
Under Section 42(2) of the Judicature Act, the Supreme Court has the power to suspend or remove an Attorney-at-Law guilty of "deceit, malpractice, crime or offence." However, this jurisdiction must be exercised in accordance with the principles of natural justice.
In Dhammika Chandratileke v. Susantha Mahes Moonesinghe [1992] , the Court held that the Supreme Court is the "sole arbiter" of fitness to remain on the roll. Yet, this jurisdiction is not penal but disciplinary—and it must be exercised fairly, with full opportunity for the accused to present a defense.
The Right to a Fair Hearing
Kodituwakku's appeal to the UNHRC highlights several fundamental rights violations:
Denial of due process and legal representation
Denial of the opportunity to cross-examine witnesses
Denial of the opportunity to present a defense
Delivery of judgment without his knowledge, falsely stating he was present
These allegations, if proven, constitute serious breaches of both Sri Lankan law and international human rights standards.
The Allegations of Corruption and Political Pressure
Did the Judges Act Under Political Pressure or Receive Bribes?
While the question of political pressure or bribery is serious and requires credible evidence, the following factors have fueled public suspicion:
The Timing: The disciplinary charge first arose in 2015 but was withdrawn with the Chief Justice's approval in 2016. It "unexpectedly resurfaced" in 2018 under new judicial leadership, raising questions about political motivation.
The Connection to Election Fraud Cases: Kodituwakku had been actively pursuing legal action against electoral manipulation, including a 2017 case involving the Attorney General's controversial opinion on Provincial Council elections.
The Chilling Effect: The ruling has effectively discouraged other public interest litigators from challenging political or judicial corruption.
The Role of the Bribery and Corruption Commission
The Commission to Investigate Allegations of Bribery or Corruption (CIABOC) was established under Act No. 19 of 1994. Its mandate includes:
Investigating allegations of bribery or corruption
Directing the institution of prosecutions under the Bribery Act
However, the Commission's jurisdiction over judicial conduct is limited. Judges enjoy judicial immunity for acts performed in their judicial capacity, and the constitutional removal process requires an address by Parliament.
For CIABOC to investigate allegations of political pressure or bribery, there must be credible evidence, not mere speculation.
The Broader Impact on Justice and Civil Rights
What Has Been Lost?
Kodituwakku's disbarment has had far-reaching consequences:
| Impact Area | Details |
|---|---|
| Stalled Cases | Over 45 public interest lawsuits have been dismissed or stalled |
| Chilling Effect | Legal professionals are now reluctant to pursue cases against corruption |
| Public Trust | Confidence in the judiciary as an independent check on power has been undermined |
| International Reputation | Sri Lanka's commitment to human rights and the rule of law is now in question |
The Silence of the Bar Association
What makes this situation even more troubling is the silence from the Bar Association of Sri Lanka (BASL) , which has failed to publicly condemn or question the legality of the ruling.
What the Public Deserves to Know
Key Questions That Demand Answers
Why did the three judges not recuse themselves? Given that Kodituwakku had previously named them in corruption complaints, a reasonable person would question their impartiality.
Was the disciplinary charge legally sound? The charge of "malpractice" under the Judicature Act relates to Kodituwakku's 2015 request for a fuller bench—a procedural request that was later withdrawn with the Chief Justice's approval.
Why was Kodituwakku denied the opportunity to defend himself? The denial of cross-examination and defense rights constitutes a fundamental breach of natural justice.
What role did political pressure play? Given the timing and context, the public is entitled to know whether external influences affected the outcome.
The Principle of Judicial Accountability
While judicial independence is essential to the rule of law, independence is not the same as immunity. As the Asian Human Rights Commission has noted, the removal process for judges effectively places judicial accountability in the hands of Parliament, raising concerns about executive influence.
The International Dimension: The UNHRC Appeal
Kodituwakku's appeal to the UNHRC seeks:
Reinstatement of his right to practice law and file public interest cases
Reopening of his pending Revision Application filed on October 1, 2024
Restoration of due process and judicial integrity in Sri Lanka
Safeguards for legal professionals and civil rights advocates from political retribution
Why This Matters to the International Community
Sri Lanka's standing in the global community is closely tied to its adherence to international human rights agreements. The case presents a litmus test for the country's commitment to:
Judicial integrity
Freedom of expression
The rule of law
Conclusion: Restoring Trust in the Judiciary
The case of Nagananda Kodituwakku is not merely about one lawyer's career—it is about the integrity of Sri Lanka's judiciary and the protection of fundamental rights. When judges preside over cases involving individuals they have a history of conflict with, and when they refuse to recuse themselves despite reasonable requests, the appearance of justice is compromised.
"Justice must not only be done, but must be seen to be done."
The public deserves answers. The conduct of the Supreme Court judges who delivered this verdict should be subject to scrutiny—not necessarily through the Bribery and Corruption Commission unless credible evidence emerges, but at minimum through transparent judicial accountability mechanisms.
A Call for Reform
As Kodituwakku stated in his UNHRC appeal, this case is about:
"Restoring public trust in a judicial system that many now view as compromised."
Without accountability, the judiciary risks becoming an instrument of political power rather than a guardian of constitutional democracy. The outcome of this case will have lasting implications for Sri Lanka's democratic future and its international standing.