SC on P. B. Jayasundara affidavit:

President free to appoint Secretary

Wasantha Ramanayake

The Supreme Court yesterday in a majority judgment declared that P.B. Jayasundara was not bound by the purported affidavit filed by him in the Supreme Court. The Court accordingly held that the appointing authority, the President in terms of the Constitution was free to consider the appointment of petitioner-respondent Jayasundara as the Secretary to the Ministry of Finance and the Secretary to the Treasury

However, Chief Justice Asoka de Silva noted that he would not permit the petitioner Jayasundara to withdraw the document as it was filed in the record.

The CJ noted that not only the petitioner had been directed to file an affidavit but the Supreme Court also had dictated its content.

The Chief Justice noted in the purported affidavit the petitioner had pledged not to assume public office in future and that the President’s Counsel has pleaded that no order had been made on the purported affidavit and therefore petitioner Jayasundara wanted to withdraw it.

The CJ noted that the records revealed that the position was correct and that no order has been made on the validity or the effect of the purported affidavit. The CJ also observed that the effect of the filing of the purported document did not extend beyond a clerical exercise and pointed out that the Court had not adverted to its content.

“I presume that the Court advisedly did not make any order with regard to the document as that would have expanded the scope of the judgment,” he noted.

Five other judges while agreeing with the CJ made their own observations in the judgment running into some 80 pages.

Justice Dr. Ms. Shirani Bandaranayake while agreeing with the Chief Justice also made her own observations in agreeing with the majority verdict.

She observed among other matters that the original petition where the petitioner was the eighth respondent was heard before Chief Justice Sarath N. Silva PC and Justices Nimal Gamini Amaratunga and Jagath Balapatabendi.

Justice Bandaranayake noted that subsequently on two occasions on October 8 , 2008 and October 20, 2008 the Benches comprised Chief Justice Sarath N. Silva PC and Justice Shirani Thilakwardane and Justice Jagath Balapatabendi.

She noted that the law clearly stated that the Bench of the Court which heard and determined the case should hear any application touching its earlier decisions and therefore noted that it was not possible to grant the relief prayed by the petitioner.

Justice Bandaranayake noted that however considering the circumstances of this application provisions contained in the Article 52(1) of the Constitution, President being the appointing authority is free to appoint the petitioner- respondent to the post of Secretary of the Ministry of Finance and Plan Implementation and Secretary to the Treasury in spite of any undertaking given to the Court by him.

She observed that either on October 8, 2008 or on October 20, 2008 the Court had not made any order either accepting or rejecting the affidavit filed by Jayasundara.

She further observed that in the absence of such a clear order, question of vacating an order or relieving an undertaking would not arise.

Justice Ms. Shirani Thilakawardane dissenting, among other things observed that the President’s Counsel Faiz Musthapha for respondent petitioner argued that the order was coercive and its tenor did not leave any option but to file an affidavit which respondent Jayasundara had no intention or desire to make.

She noted that prior to the filing of the affidavit in question through oral submissions the President’s Counsel tendered an expression of regret. The President’s Counsel declared that his client had voluntarily severed himself from holding any office as he had himself recognized that the adverse findings and content of the judgment had grave repercussions and precluded him from being fit and proper to hold the office.

Justice Thilakwardane noted that in terms of records in the contemporaneous proceedings the President’s Counsel did not raise any demur to the fact that his client should not hold office. He did not even seek any opportunity to be heard on this subject either on the facts or on the law.

She pointed out that in this context his plea for that he was not afforded an opportunity to be heard is untenable and could not be accepted.

The Bench comprised Chief Justice Asoka de Silva, Justice Dr. (Ms.) Shirani Bandaranayake, Justice (Ms.) Shiranee Thilakawardane, Justice Saleem Marsoof PC, Justice Jagath Balapatabendi, Justice K. Sripavan, Justice P.A. Rathnayake.

The former Secretary to the Treasury made the application seeking to relieve him from an affidavit tendered to the Supreme Court in the Fundamental Rights Application against the privatization of the Lanka Marine Service Ltd.(LMSL).

The former Secretary to the Treasury 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 Secretary to the Treasury stated in his motion that the President had requested him that his service as the Secretary to the Treasury and the Secretary to the Ministry of Finance and Planing was required in the national interest.

The petitioner, however, stated that the affidavit submitted to the Supreme Court in pursuant to the 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.