Financial Times

Judgments of 7- judge bench in PBJ case

By Natasha Gunaratne

Reasons for the judgment in Treasury Secretary P.B. Jayasundera's petition to withdraw the affidavit he submitted in 2008 not to hold public office, were delivered by the 7- judge bench on Tuesday with Justice Shiranee Thilakawardena giving the dissenting judgment.

The Chief Justice Asoka de Silva and five other Justices J. Balapatabendi, Shirani A. Bandaranayake, Saleem Marsoof, K. Sripavan and P.A. Ratnayake held that the President is free to appoint Secretaries to Ministries under Article 52(1) of the Constitution.

Given below are excerpts of the reasons for the ruling:

Chief Justice Asoka De Silva and Justice J. Balapatabendi:

Chief Justice Asoka de Silva and Justice S. Balapatebendi found that the contents of the affidavit filed by Dr. Jayasundera in 2008 appears to have been dictated by the Court and therefore, held that the petitioner is entitled to complain about the purported affidavit.
Dr. P.B. Jayasundera

The Justices also held that the petitioner is entitled to complain about the purported affidavit and further declared that the petitioner is not bound by its contents. The judgment stated that the appointing authority is free to consider all the attendant circumstances and take any decision he deems fit. Under Article

52(1) of the Constitution the prerogative of the appointment of a Secretary to a Ministry is with His Excellency the President.

The Supreme Court or no other authority can do it. Furthermore, the Justices found that no meaningful action has been taken by the Court on the affidavit upon it being filed and that perusal of the record reveals this to be correct.

It appears that so far the filing of the document concerned has not extended beyond a clerical exercise and the Court has not adverted to its contents. Justice J. Balapatabendi agreed with the judgment of the Chief Justice.

Justice Shiranee Thilakawardena:

Justice Shiranee Thilakawardena said that in his capacity as the former PERC Chairman, the LMS judgment found Dr. Jayasundera not only acted contrary to the law but purported to arrogate to himself the authority of the Executive Government. His action is not only illegal and in excess of lawful authority but also biased. Justice Thilakwardena stated that it needs to be mentioned that the extent and magnitude of the findings against the petitioner as set out in the original judgment are so strong that even the most forgiving employer would balk at his re-employment at such a record of moral turpitude.

Justice Thilakawardena stated that as further reason to strip the petitioner's affidavit of its binding nature, the majority decision has expressed 'concern' regarding the nature of the affidavit as one being filed in compliance with and compelled by the Order. This 'concern' however, when viewed in the light of the Constitutional powers afford the Court to deal with situations like this, proves to be quite misplaced.
The Constitution unequivocally empowers the Supreme Court to be the ultimate guardian of rights of the citizenry of Sri Lanka, going so far as to confer the Court sole and exclusive jurisdiction over matters relating to fundamental rights.

Justice Thilakawardena further stated that it should be quite clear that the decision by the Court to issue an order requiring the petitioner to forego any future opportunities to hold public office in response to the extensive, long-running, abuses of power and corrupt behaviour he committed in his capacity as a public officer was not an instance of the Court being used 'as an instrument of persecution' but rather, an instance of the Court upholding its duty to zealously protect the citizenry from a state actor who is known to have extensively violated the trust they have reposed in him. 'To paint the petitioner as the victim of an overreaching court is frankly, alarming.'

The judgment further stated that undoubtedly, the appointing authority is the President, as Article 52 mandates as much. When any incumbent President exercises these powers he or she is also under the same Constitutional mandate to act in accordance with the Doctrine of Public Trust that is reposed through the Sovereignty of the People (Article 4) and under the Law. No single Article of the Constitution can be given greater prominence than or read in isolation from another. It must be read and interpreted in a manner that accords with the pith and substance and, indeed, the spirit of the entire Constitution. It is, after all, the executive power of the People that is exercised by any incumbent President.

The judgment stated that under Article 28 of the Constitution which deals with the Fundamental Duties, the President as a noble and gracious leader, must always be guided by the underlying duty to preserve and protect public property and to combat its waste and misuse. In a monarchy the ruler rules under the “pleasure principle”, and could act in a dictatorial manner. But under our Democratic Socialist Republic governed by the Constitution, which guarantees democracy to its people, even an Executive President does not have untrammeled power and all acts of governance, especially those that involve public finance, must be in tune with the spirit of the Constitution which mandates good and responsible governance.

Justice Shirani A. Bandaranayake

Justice Bandaranayake's judgment stated that she is in agreement with the judgment of the Chief Justice, stating that the petitioner had filed the affidavit dated 16 October 2008 not on the basis of his own free will but on the directions given by the Court on 8 October 2008. At the time the Court had directed the petitioner to tender the affidavit, he was holding high ranking employment in the government of Sri Lanka and was a professional of his chosen area of discipline.

Justice Bandaranayake stated that as a citizen of this democracy, the petitioner enjoyed what every citizen of this country was entitled to in terms of Article 14(1)g of the Constitution, viz., the freedom to engage by himself or in association with other in any lawful occupation, profession, trade, business or enterprise, until the decision of this Court that a firm statement be given that he would not hold any office in any governmental institution, either directly or indirectly.

Justice Bandaranayake added that the rights guaranteed in terms of Article 14(1)g, if it is to be restricted in terms of Article 15(5) of the Constitution, such restrictions would only be based on the disciplinary procedure in terms of his employment. The judgment stated that it would not be possible for this Court, which possesses the jurisdiction for the protection of fundamental rights, to insist for an affidavit from a respondent so as to deprive him from the freedom to engage in any lawful occupation or profession.

Justice Saleem Marsoof

Justice Marsoof stated in his judgment that he is of the opinion that the Supreme Court on 8 October 2008 could not have lawfully made a determination that the petitioner was not fit to hold public office, since it had not afforded the petitioner a proper opportunity of being heard on his fitness or otherwise to hold public office. Imposing a life-time bar on the petitioner holding public office would not only have violated his fundamental rights guaranteed by Article 14(1)g of the Constitution but would have also offended the rule of proportionality. Justice Marsoof stated that such a determination could also have impinged on the petitioner's franchise in so far as it would have prevented him from seeking election to Parliament, the Provincial Council or even a local authority.

Justice Marsoof further stated that the direction made by the Court on 8 October 2008, spelling out the content of an affidavit to be filed by the petitioner was an attempt to achieve indirectly what it could not have done directly, and additionally, had the sanction of contempt of court. He added that it is clear that the affidavit filed in October 2008 seriously compromised the fundamental rights of the petitioner guaranteed by Article 14(1)g of the Constitution, giving rise to the question as to whether a person may lawfully waive a fundamental right guaranteed by the Constitution in this manner.

Justice K. Sripavan

Justice Sripavan stated that the LMS judgment delivered in July 2008 expressly and unambiguously declared that the fundamental rights guaranteed by Article 12(1) of the Constitution has been violated and imposed compensation of Rs.500,000 on the petitioner. However he further stated that in the absence of clear and unambiguous language to that effect, one cannot presume that the judgment debars the petitioner from functioning as the Secretary to the Ministry of Finance and Planning.

Justice P.A. Ratnayake

Justice Ratnayake's judgment stated that the President, being the appointing authority in terms of Article 52 of the Constitution would be free to consider appointing the petitioner to the post of Secretary to the Ministry of Finance, notwithstanding the undertaking given to the court by the petitioner. He stated that the petitioner was functioning as the Secretary to the Ministry of Finance under the President shortly before making the impugned undertaking in the affidavit of 16 October 2008 presumably because his services were needed.

Therefore, the mere necessity for the petitioner's services once again for the same post as set out in the letter of the President dated 25 May 2009 does not by itself constitute a sufficient basis for the petitionner to withdraw from an undertaking.

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