Legal

   Landmark judgement: P.B. back

By our Legal Correspondent

Former 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 government office.

 A bench comprising of seven Supreme Court Judges reversed the decision of the previous bench and allowed Dr. P.B.Jayasundera’s application last week.

 The 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also noted that some important facts had been suppressed and referred to a Cabinet decision which had subsequently been rescinded, though the original bench was not informed of this most important decision.

 Chief 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.

P.B. 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.

It was 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. Jayasundera.

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 application.  

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. 

The 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 functus.

Both 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 itself.

The 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 apprehensive.

The thrust of the submissions made by Mustafa on behalf of Jayasundera appeared to be as follows:

a) 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.

It is 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 due inquiry. 

The 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 president.

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.

At 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 differently.

b) 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.

c) 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.

d) 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.

e) He 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.

At the 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.

This 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. 

As his 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.

In his 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 court. 

The 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 perception.

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 office. 

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 suppressed.

Mohan 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 Commission.

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, by others.

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.

The 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.

It was 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.

The 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.   

The 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?

There 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 the Sarath Silva Court was egregiously unjust and violative of the principles of natural justice, and that its outcomes should be unravelled?

It was 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.

The Court has found that one decision of the Silva Court was unjust and has unravelled it.

When will it start on the rest?