Former Treasury Secretary Dr P.B. Jayasundera is certain to return to public office and the Treasury after a 7-Judge Supreme Court bench on Thursday by a 6-1 verdict allowed him withdraw his own undertaking not to accept an appointment in the public service.
Dr. P. B. Jayasundera
Announcing the decision, Chief Justice Asoka de Silva said that they were providing him ‘relief’ in the ‘prayer’ requested by the former top official. But he didn’t detail out the relief other than to say it was ‘as prayed’ in his affidavit and that reasons for their ruling will be announced shortly.
Dr Jayasundera had requested that he be allowed to withdraw an affidavit filed earlier that he would not serve in the public service. Only Justice Shirani Tilakawardene, part of the court bench that delivered the judgment in the LMS case, dissented. Chief Justice Asoka de Silva and five other judges, namely Justices Shirani A. Bandaranayake, Saleem Marsoof, Jagath Balapatabendi, K. Sripavan and P.A.Ratnayake, approved the ruling.
The former Treasury Secretary, a powerful personality who has survived three governments, had requested court to allow him to withdraw his affidavit as President Mahinda Rajapaksa wanted to re-appoint him to the post in the 'national interest'.
He informed the court that the president wanted him to take up the posts of the Secretary to the Treasury and Secretary to the Ministry of Finance, as his services were required in the interests of the nation.
The Supreme Court, in a landmark judgment on July 21 last year, held that the alleged fraud in the transaction of awarding 90% of the shares of LMSL to John Keells Holdings Ltd was unlawful. Accordingly, the Court had also directed P. B. Jayasundara to pay Rs 500,000 as compensation to the State. Pursuant to the order of the Court, Jayasundara had tendered an undertaking in the form of an affidavit, to Court that he would not take up any government post in the future.
In July this year Mr. Jayasundera had filed a motion in the Supreme Court requesting that he be allowed to withdraw his undertaking. Supporting the motion, Counsel Faiz Mustapha PC said that the court had imposed a penalty of Rs. 500,000 on Jayasundera, for violation of fundamental rights of petitioner Vasudeva Nanayakkara, therefore Jayasundera should not be punished for a second time.
He told the court that his client had been asked to file an affidavit stating that he would not serve in the public service after the fine was imposed and therefore a serious injustice had been caused to him by preventing him from serving the nation as a public servant for the rest of his life.
This was a restriction on the appointing authority, he said. He added that the Court on October 20, 2008 or even thereafter did not make an operative final order on that affidavit.
In a lengthy submission, Counsel for petitioner, M.A Sumanthiran said that P.B.Jayasundara should not be allowed to withdraw the affidavit just 10 months after he had unreservedly apologized and undertaken not to return to public service, as it will affect the independence of the judiciary and its dignity.
He said that the Supreme Court, in the findings in its judgment, had stated that the action of Jayasundara, who was then Treasury Secretary, had not only been arbitrary and ultra vires but also biased in favour of John Keells Holdings Ltd. Court had also observed that it had been established that Jayasundara, who functioned at that time as Chairman of the Public Enterprise Reform Commission, had worked in collusion with Susantha Ratnayake of John Keells Ltd.to secure illegal advantages for the latter that were adverse to the public interest, he said.
In a startling revelation, Counsel Sumanthiran said that P.B Jayasundara has failed to annex the letter which he sent to the President tendering his resignation from the post of Treasury Secretary.
Here Jayasundara categorically stated that he has not taken any action against the public interest, hiding facts and misleading the President as well. On the other hand, Jayasundara has filed a subsequent affidavit in a confidential cover in which he had complained that the former Chief Justice Sarath N. Silva had been biased against him in delivering the judgment.
This affidavit had challenged the integrity of the former CJ and two sitting judges of the Supreme Court. Counsel Sumanthiran stated that the Supreme Court should take action against Jayasundara for contempt of court for making such allegations against the judges.
“I am sure the Supreme Court does not want allegations made against a former CJ and two sitting judges in this court. No one should be allowed to do this and get away,” he said. “Why should we treat P.B. Jayasundara differently? Is it just because that the President has asked him to take back the appointment?” Counsel asked.
In his affidavit Jayasundara states that, “In or about the latter half of July 2009 , I became aware that his Lordship Sarath N.Silva, the then Chief Justice had in the course of a speech at the opening of the High Court of the Uva Province on 26th July 2008 had made references to the Finance Ministry officer distributing funds. I verily believe that the references in the said speech relate to me and have been occasioned by reasons of my duties as Secretary, Ministry of Finance and Planning .”
Therefore, counsel Sumanthiran said, the former CJ should be made a respondent and allowed to defend himself. Jayasundera should not be allowed to make allegations and withdraw without going through the investigation procedure.