Judges decide 6-1:

PBJ can hold public office

Ex-Treasury Secretary Dr. P. B. Jayasundera relieved of affidavit:

Wasantha RAMANAYAKE and Sandasen MARASINGHE

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.

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 reasons.

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. Rathnayake.

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.

President’s 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 client.

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 interest.

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.

President’s 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 appeared.

Nihal Sri Amaresekera appeared in person.