judgement: P.B. back
Justice Sripavan pointed out that there had been
no order against Dr. P.B. Jayasundera in the main
judgement which had been violated, and therefore
justified him being recalled to court
By our Legal Correspondent
Secretary to the Treasury, Dr. P.B Jayasundera applied
to the Supreme Court to withdraw his affidavit wherein
he gave an undertaking to desist from holding any
bench comprising of seven Supreme Court Judges reversed
the decision of the previous bench and allowed Dr.
P.B.Jayasundera’s application last week.
Supreme Court’s attention was drawn to the affidavits
submitted by all parties to this case by Counsel for
Jayasundera, who stated that these did not contain all
the facts required to make a comprehensive judgment —
besides which, both parties’ evidence had not been
heard. He also noted that some important facts had been
suppressed and referred to a Cabinet decision which had
subsequently been rescinded, though the original bench
was not informed of this most important decision.
Justice Asoka de Silva together with five other judges
upheld Jayasundera’s application with Justice Shirani
Tillekewardene dissenting. Chief Justice Asoka De Silva
gave litigator Nihal Sri Ameresekere all of 10 minutes
to be on his feet to make representations.
Jayasundera in this case sought the leave of court to
assume public office again. In view of the Affidavit he
had given the Supreme Court previously he seems to have
felt that he could not assume public office without the
blessings of the Supreme Court. And the court granted
him relief in that respect.
indeed heartening to observe the patient hearing and
tolerance exhibited by the seven member bench of the
Supreme Court who sat to hear the latest application in
SC FR 209/2007 (the LMS Case). They sat to hear the
application made by former Secretary to the Treasury, Dr
P B Jayasundera, to withdraw part of his Affidavit given
to the Supreme Court (then presided by Sarath N. Silva)
in October 2008 in which he had undertaken not to hold
public office again. Faisz Mustafa PC appeared for Dr.
Regular observers of the Supreme Court watched the
approach taken by M. A. Sumanthiran last Thursday.
After succeeding in getting the case postponed several
times on objections on the constitution of the bench,
Sumanthiran took another one and a half hours of the
court’s time trying to object to the right of the Chief
Justice to appoint a higher bench. Finally when the
bench seemed disinclined to hear his objections (which
appeared to be on very technical grounds and contrary to
the provisions of the Constitution which clearly gave
the Chief Justice the right to appoint benches of larger
numbers), he demanded a pronouncement on his
Throughout the hearing and the unsuccessful attempts by
Sumanthiran to delay the process, the bench remained
steadfast and seemed impervious to the accusations and
demands being hurled at them.
Chief Justice himself, several times pointed out to
Sumanthiran that it was on his submissions, which were a
“gloss” on the judgement, that the court had been
misdirected to believe there was an order in the main
judgement in SC FR 209 that Dr. P. B. Jayasundera had to
vacate his post. Justice Sripavan pointed out that
there had been no order against Dr. P. B. Jayasundera in
the main judgement which had been violated, and
therefore justified him being recalled to court.
Justice Bandaranayake and Justice Marsoof both several
times, exclaimed that the Court had directed this case
to the same bench for incidental orders, that it had
been different benches which had sat and that no
counsel, including Sumanthiran, had pointed this out to
court. At several times, questions were asked as to
whether the subsequent orders made by these benches were
Sumanthiran and Justice Tillekewardene said that the
Affidavit given by Dr. P B Jayasundera to former Chief
Justice Sarath N Silva, was voluntary and so need not
have contained a statement that he would not work again.
This was met by several counter remarks from the Bench
Chief Justice pointed out that the proceedings
themselves indicated that the court had directed Dr.
Jayasundera to include a statement to that effect. He
also stated that the affidavit had been filed for the
satisfaction of the court and that court had suggested
how it be formulated.
Justice Marsoof went so far as to ask President’s
Counsel Faisz Mustafa whether his client had been
apprehensive of being sanctioned for contempt if he did
not include a statement to that effect. Mustafa replied
that in the circumstances, his client had been
thrust of the submissions made by Mustafa on behalf of
Jayasundera appeared to be as follows:
There were several findings against him which he
summarised as finding that he has acted in an arbitrary,
collusive, and biased manner, ultra vires to the
authority given to him. Mustafa PC pointed out that at
this time he was not challenging these findings but
pointed out that in view of this, the court had
addressed its mind to the consequences of such findings
and fined him Rs 500,000.
noteworthy at this stage to note Justice Marsoof’s
comments that the Rs 500,000 could not have been a fine
as there had been no inquiry, no calling of witnesses
etc, that one would expect in a criminal trial.
Therefore, the Rs 500,000 could only be compensation and
not a fine.
Justice Marsoof also pointed out that in light of the
order for the payment of compensation a further
undertaking not to hold public office appears to be
double jeopardy (being punished twice).
Several members of the bench pointed out that the
standard procedure in a breach of fundamental rights
action is to refer the matter to the appointing
authority of the officer found to be in breach. Justice
Marsoof pointed out that the Supreme Court was not
equipped to carry out disciplinary action (the function
of the Executive) which requires hearings and so on, and
that any action regarding the employment of the
individual was left to the appointing authority after
Chief Justice pointed out that all civil servants were
bound by the Establishments Code and Constitution and a
finding of the Supreme Court on employment issues of a
civil servant were a trespass on the realm of the
appointing authority of the civil servant. In the case
of Dr. Jayasundera, the appointing authority is the
Chief Justice asked Sumanthiran whether he knew of any
other instance where a person had been asked by the
Supreme Court to vacate his position on a breach of
fundamental rights. Sumanthiran admitted that he did not
know of any other occasion.
several stages, Sumanthiran tried to make a distinction
between Dr. Jayasundera and any other public servant,
stating that as the holder of the highest civil service
position in the land, different standards and conduct
was expected of him. This was promptly addressed by the
bench, which categorically stated that all civil
servants were the same and none could be regarded
Mustafa submitted that, having paid the sanction
demanded of him in court, Dr. Jayasundera had only heard
from court in October 2008. He received notice from the
Registrar demanding that he be present in court in
person, and that he give details on whether he held
public office. Mustafa claimed that the demand to be
present in person in court was so unusual that Dr.
Jayasundera was justly apprehensive.
This apprehension resulted in the unreserved
apology to court. Mustafa also commented that viewed
with the wisdom of hindsight some actions may be
regarded as foolhardy.
Mustafa PC consistently stated that at no stage did Dr.
Jayasundera accept blame or the findings in the
judgement but he respected an order of the highest
court, and therefore in deference to such order resigned
from his post and also offered an apology to court.
Mustafa also noted that the proceedings revealed that
the court had reserved the right to make an order on the
suitability / adequacy of his client’s affidavit and
that no such order was recorded in the proceedings. He
further submitted that as such an order had not been
made, he could withdraw some of his undertaking,
especially in the light of the supervening events since
he tendered that affidavit.
also pointed out that the affidavit violated several
elements of the civil procedure code and the
constitution and also violated Dr. Jayasundera’s
franchise and such an undertaking would prevent him from
holding ministerial rank.
time Mustafa completed his submissions, the bench seemed
inclined to agree that in light of the supervening
event, and the circumstances revealed by Mustafa, that
he be permitted to withdraw that part of his affidavit
regarding his future conduct. Justice Shirani
Tillekewardene requested Sumanthiran, to accede to the
request of Dr. Jayasundera in this light.
observer was rather shocked at this request as it did
appear that the majority of the bench had agreed that
the Affidavit was a matter between the court and Dr
Jayasundera and not a matter in which any consent by any
third party was required. Nevertheless, given this
opportunity, Sumanthiran rose again.
first line of attack Sumanthiran commenced by stating
that there had been an affidavit filed by Dr.
Jayasundera in this application in which there was an
accusation that Sarath N. Silva had been biased against
Dr. Jayasundera. Sumanthiran demanded that Dr.
Jayasundera be charged with contempt of court for making
such an accusation.
presentation, Sumanthiran took the high ground, accusing
the bench of being more concerned for the honour of the
Supreme Court than for the bench itself by allowing this
affidavit to go unchallenged. This stance was
accentuated by the vociferous interruption of the
Attorney General himself who appeared as a friend of
Attorney General, Mohan Peiris, pointed out that the
pursuit of such an affidavit would not assist the honour
of this court or the upholding of justice in this
country and pleaded with the bench and Sumanthiran that
this be taken no further. It was also pointed out by
several members of the bench including Justice Shirani
Tillekewardene that there had been no accusation of bias
in that affidavit, and that the affidavit had been filed
under confidential cover. The Chief Justice himself
pointed out that if such an accusation was made and
proved, it would not assist this court. Mustafa pointed
out that one cannot be held in contempt for a
Thereafter Sumanthiran’s submissions appeared to be
several repetitions of the charge that a person against
whom all these charges had been found could not, by all
accepted traditions, be allowed to hold high public
Several members of the Bench pointed out that the
findings of the Supreme Court were constrained by the
documents presented to court and by the affidavit
evidence system. They also pointed out that no one was
asked to leave office until due inquiry was made. The
Chief Justice also pointed out that he had read that
several documents had been suppressed. Faisz Mustafa
started to explain how several cabinet papers had been
suppressed. Sumanthiran said nothing had been
Peiris, Attorney General, pointed out that despite the
order there had been no proof of corruption or bribery
and matters were still being investigated by the Bribery
Sumanthiran pointed out the seriousness of the charges
and stated that Justice Amaratunga should have been on
the bench as he heard most of these charges. The Chief
Justice pointed out that Justice Amaratunga had refused
to sit as he believed his order had been tinkered with,
Justice Marsoof said that he could not be party to any
proceeding whereby a person was deprived of employment
without having followed due process. He pointed out
that affidavit evidence was very different to the
proceedings of a disciplinary inquiry.
Chief Justice pointed out that he had seen an anomaly in
the proceedings of this case in the past. He noted that
the Court appeared to have taken what Sumanthiran had
said at face value but had requested affidavits from
others. He asked why an affidavit had not been required
for submissions made by Sumanthiran.
Sumanthiran also queried as to whether the bench were
considering allowing Dr. Jayasundera to return to public
office, merely on the supervening event that the
President had requested it. He queried as to whether
this was not affecting the independence of the judiciary
and whether this sort of request was the standard by
which the Supreme Court was going to measure itself.
apparent that by his repeated circling of the same
arguments and his refusal to conclude that Sumanthiran
was attempting to postpone this case once more. Only on
the Bench indicating that they would hear him out and
also give the 22nd Respondent an opportunity to be
heard, did he finally conclude.
22nd Respondent, Nihal Ameresekere, perhaps the force
and reason behind this case made brief submissions that
the judiciary had been entrusted with the task of
keeping the organs of state within the rule of law. He
also pointed out that in two cases he had been refused a
five and seven judge bench. He repeated that he had
filed submissions on why Dr. Jayasundera was not fit to
hold public office and informed court that he had been
instrumental in establishing an Oil Bank at the
Bloemendhal Land. He also stated that the CID and
Bribery Commission investigations should be concluded
and that he had instructed the Attorney General on which
offences he believes have been violated.
bottom line is this. If a fraud is established in the
privatisation of a state asset, the appropriate remedy
would be to restore the status quo ante. If fraud
unravels all, should not the injustice of a decision
also unravel all?
was no consensus on this question, but it does seem that
respect for precedent should not extend to patently
unjust decisions. Who could determine that a decision of
Sarath Silva Court
was egregiously unjust and violative of the principles
of natural justice, and that its outcomes should be
Prof. Rohan Samarajiva who said before this judgment was
delivered that it appears the best way to restore faith
in the Supreme Court would be for a three-judge bench of
the present Court to determine whether a prima facie
case existed, and then for a five-judge bench to hear
arguments and make the final decision. Respect for stare
decisis should not extend to patently unjust decisions,
especially decisions that barely cited precedent.
Court has found that one decision of the Silva Court was
unjust and has unravelled it.
will it start on the rest?