P. B. Jayasundera’s motion before Supreme Court:

Seven Judge Bench hears plea

Sandasen MARASINGHE

The Supreme Court yesterday appointed a seven Judge Bench to inquire into the motion filed by former Secretary to the Treasury P.B. Jayasundera and fixed the hearing for September 24.

Filing the motion before the Supreme Court, Jayasundera pleaded to quash an affidavit filed by himself before the Supreme Court while the hearing of the Fundamental Rights petition filed by Vasudeva Nanayakkara in connection with sale of shares of Lanka Marine Services was in progress. Jayasundera submitted the affidavit on October 8, 2008.

The motion was taken up yesterday before a Supreme Court Bench comprising Chief Justice Asoka de Silva and Supreme Court Justices Dr. Shirani Bandaranayake, Saleem Marsoof, Jagath Balapatabendi and K.Sri Pavan.

When the motion was taken up, the Court decided the motion should be heard before a seven Judge Bench which also should include Supreme Court Justices Shirani Thilakewardene and P.A. Ratnayake in addition to the five Judges that comprised the Bench yesterday.

M.A. Sumanthiran appeared for Vasudeva Nanayakkara raising a preliminary objection submitted that the five Bench should be appointed by the Bench that heard the Fundamental Rights application originally. The FR application was heard before two Benches. In one instance it was heard before a Bench that comprised former Chief Justice Sarath N. Silva and Justices Shirani Thilakewardene and Nimal Gamini Amarathunga. But the affidavit was submitted before the subsequent bench that comprised former CJ Sarath N.Silva and Justices Jagath Balapatabendi and P.A. Ratnayake. Although former CJ Sarath N.Silva retired, the others remained in service. Only one Justice of the four was there in the bench to hear the motion.

M.A.Sumanthiran also submitted that such a motion should be referred to the original bench that heard the FR application by which the five judge bench decided to hear the motion. Except for an appeal against a judgment, the Chief Justice had no jurisdiction to decide the five judge bench to hear a motion.

President’s Counsel Faiz Musthapa appearing for Dr. P.B. Jayasundara submitted that his client never asked to revise the judgment made by Court. The motion only pleaded to allow him to withdraw the affidavit submitted by himself.

Justice Dr. Shirani Bandaranayake observed that according to the Lanka Marine Services judgment there were several findings against Dr. P.B. Jayasundera but there was no comment to say that he was not suitable to hold Government office.

President’s Counsel Faiz Musthapa appearing for Dr. P.B. Jayasundera further submitted that the affidavit was submitted before the Court on October 8, 2008 and the Supreme Court fixed October 20, 2008 to decide whether the affidavit should be accepted or not by the Court.

But such an order was not delivered on October 20 or thereafter.

According to that minute there was no order delivered by the Court against Jayasundera in connection with his affidavit. Therefore he pleaded just to allow him to withdraw his affidavit. M.A. Sumanthiran with Viran Corea appeared for Vasudeva Nanayakkara while President’s Counsel Faiz Musthapa appeared for Dr. P.B. Jayasundara.

Attorney General Mohan Pieris PC appeared with DSG S. Rajaratnam and SSC Nerin Pulle for the State.