Judges decide 6-1:
PBJ can hold public office
Ex-Treasury Secretary Dr. P. B. Jayasundera relieved of affidavit:
The specially constituted Bench of seven Supreme Court Judges
yesterday in a dissenting order allowed an application by former
Treasury Secretary Dr. P.B. Jayasundera relieving him of an affidavit
filed by him in the court,to resume office of the Treasury Secretary.
Dr. P.B. Jayasundera
Six members of the Bench including Chief Justice Asoka de Silva
decided in favour of the applicant, P.B. Jayasundera while Justice
Shirani Thilakawardene dissented.
The court put off the delivery of the full judgment which would give
The Bench comprised Chief Justice Asoka de Silva, Justice Dr. Shirani
Bandaranayake, Justice Shiranee Thilakawardene, Justice Saleem Marsoof
PC, Justice Jagath Balapatabendi, Justice K. Sripavan and Justice P.A.
At the outset, counsel M.A. Sumanthiran appearing for Presidential
Adviser Vasudeva Nanayakkara, the petitioner in the Lanka Marine
Services Limited (LMSL) Rights Application, objected the application
being taken up before the Bench comprising seven judges.
He submitted that the Supreme Court Rules require that the case being
taken up before the same Bench that heard the original petition and
within a limited time period.
He submitted that the other judges could not decipher what went in
the minds of the judges who heard the case.
Chief Justice Asoka de Silva over ruled the application stating that
the Chief Justice could refer the matter to a Bench of his choice if the
matter concerned was of public importance.
Presidentís Counsel Faiz Musthapa appearing for Dr. P.B. Jayasundera
submitted that his client never asked to revise the judgment made by the
Court. The motion only sought to withdraw the affidavit submitted by his
Faiz Musthapa PC submitted that his client tendered the affidavit
before the Supreme Court not voluntarily but he tendered it as he was
ordered by the former Chief Justice to do so on October 8, 2008.
Counsel M.A. Sumanthiran submitted that the applicant Jayasundera was
not fit to hold office since he had violated the oath of his high office
as well as the Constitution. He submitted that if he was raising serious
allegations in his affidavits against the former Chief Justice and two
sitting Judges, he should proceed with his case fully in the interest of
society. He submitted that if the former Chief Justice had misused his
powers against the applicant it should be fully inquired into and not be
allowed to withdraw.
Attorney General Mohan Peiris PC submitted that such an exercise
would be futile and serves no purpose but only open some undesirable
flood gates of history.
Nihal Sri Amerasekera, 22nd respondent appearing in person submitted
that he was questioned by the Bribery Commission in relation to the LMSL
judgment and investigations are being carried out by a number of
authorities. He submitted that under normal circumstances, public
officers who had violated the rights would be charge sheeted and
interdicted allowing an uninhibited inquiry.
The former Treasury Secretary made the application seeking to relieve
him from an affidavit tendered to the Supreme Court in the Fundamental
Rights Application against the privatization of Lanka Marine Service
Ltd.(LMSL). The former Treasury Secretary filed the motion seeking to
relieve him from an affidavit dated October 16, 2008 given to the court
stating that he would not in future accept any offices in the
Government. The former Treasury Secretary stated in his motion that the
President had requested him that his service as the Treasury Secretary
and Finance and Planning Ministry Secretary was required in the national
The petitioner, however, stated that the affidavit submitted to the
Supreme Court in pursuant to court order in the aftermath of the
delivery of the judgment in the LMSL Rights plea was barring him from
accepting any office in the Government. He sought the court to relieve
him from the affidavit tendered to the court pursuant to the court
order. He stated that the President was vested with the power under the
Constitution to appoint secretaries to the Ministries and they could
hold the offices until the dissolution of the Cabinet of Ministers.
M.A. Sumanthiran with Viran Corea appeared for Vasudeva Nanayakkara,
the petitioner in the LMSL rights application.
Presidentís Counsel Faiz Musthapha appeared for the applicant P.B.
Jayasundera. Attorney General Mohan Pieris PC with Deputy Solicitor
General Sanjaya Rajaratnam and Senior State Counsel Nerin Pulle
Nihal Sri Amaresekera appeared in person.