Financial Times

Debate intensifies over who should judge issue

PBJ courtroom drama

By Natasha Gunaratne

In yet another turn of events in the courtroom drama over former Treasury Secretary P.B. Jayasundera’s application to once again hold public office, submissions have been made to the Court by a respondent in the Lanka Marine Services (LMS) privatization case that Dr. Jayasundera’s application should be heard before the three Supreme Court justices who were involved in making the consequent order to the LMS judgment as opposed to the 5 or 7 judge bench that will be constituted.

Dr. Jayasundera filed an application in July 2009, asking that he be allowed to return as Treasury Secretary. Following the July 2007 judgment in the LMS privatization which was annulled after the Court found it to be unlawful and that Dr. Jayasundera played a critical role in the transaction, subsequent Court orders resulted in his resignation as Treasury Secretary and the submission of an affidavit stating he would never hold public office again.

However, Dr. Jayasundera’s application was taken up in the Supreme Court on September 3, 2009 before a 5 judge bench on which day a subsequent order was made to hear his case before a 7 judge bench later this month. According to documents filed by Dr. Jayasundera’s legal counsel in Court a few weeks ago, he is citing bias against him on the part of the former Chief Justice Sarath N. Silva who delivered the judgment.

The petitioner in the LMS case, Vasudeva Nanayakkara filed a motion this week asking that the Supreme Court take into consideration the submissions of the 22nd respondent in the LMS case, former PERC Chairman Nihal Sri Ameresekere against reconsidering, revising, reviewing or varying the order of the Court made as far back as August 8, 2008, consequent to the July 2008 judgment.

In written submissions, Mr. Ameresekere cited subsequent orders by the Supreme Court directing law enforcement authorities to conduct investigations and to take warranted action which would also involve Dr. Jayasundera, in the face of several grave and serious adverse findings made against him in the judgment. He described Dr. Jayasundera as having played a ‘pivotal role’ in the LMS transaction.
Mr. Ameresekere stated that the LMS case was annulled as wrongful, unlawful and illegal by the Supreme Court and was found to have been perpetrated without any lawful authority whatsoever by Dr. Jayasundera.

Therefore, any revision of any order made against Dr. Jayasundera would have an impact in undermining the judgment. He further submitted that given established precedent and law, the applications of Dr. Jayasundera should have been rejected or given for consideration to the three Supreme Court judges - Shirani Tilakawardene, N. Amaratunga and P.A. Ratnayake as Justice Amaratunga was involved in delivering the July 2007 judgment while all three justices were involved in making the consequential orders and direction in relation to Dr. Jayasundera.

Mr. Ameresekere cited established precedent, law and practice of the Supreme Court to submit that the order made to hear Dr. Jayasundera’s case before a 5 judge bench is per-incuriam (through lack of care) and could not have been proceeded with. He further added that the order to hear Dr. Jayasundera’s case before the 7 judge bench on September 24, 2009 is also per-incuriam.

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