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It appears that applicant is indicting sitting judges
Vasu’s Counsel
Seven-Judge Bench to hear PBJ’s motion

A seven-Judge Bench, of the Supreme Court, will hear on September 24, 2009, the motion filed by Dr. P. B. Jayasundera.

The Bench will include, Justice Shirani Tilakawardene and Justice P. A. Ratnayake who were on the Bench, which dealt with the affidavit issue.

The Supreme Court yesterday postponed for September 24, 2009, the hearing of the motion, filed by Dr. P. B. Jayasundera, seeking to revoke an affidavit submitted by him, to Court on order, subsequent to the judgement on the Lanka Marine Services case.

The affidavit dated October 8, 2008 said that Jayasundera will not, in future, hold any public office.

Yesterday, the motion was called before the Chief Justice Asoka de Silva, Justice Dr. Shirani Bandaranayake, Justice Saleem Marsoof Justice J. Balapatabandi and Justice K. Sripavan.

Counsel M. A. Sumanthiran appeared for Vasudeva Nanayakkara, who was the original petitioner in the Lanka Marine Services Case. He took up the objection that two out of the three judges, who ordered the affidavit, were still sitting Judges of the Court, but were not hearing the application for revocation. He cited the judgement in the Fernandopulle case by retired Justice Dr. A. R. B. Amerasinghe, where it was stated that a re-examination should be heard by the same Judges who heard the matter. Other Judges should be heard only if the Judges who heard the matter were not available or retired.

Counsel Sumanthiran also said that if the applicant Jayasundera is alleging bias by the retired Chief Justice Sarath N. Silva, he should be made a respondent. He should be heard. If not at least the other Judges who dealt with the affidavit issue should be on the Bench. Sumanthiran said that this appears as if an applicant is indicting sitting Judges of that Court. This is bad precedence. This could be repeated by other persons, in a year or so, or even later. Counsel Sumanthiran said there are six findings against Jayasundera in the judgement.

Justice Saleem Marsoof: in that case he should face an inquiry.

Justice Dr. Shirani Bandaranayake: the Judgement did not disqualify him.

Sumanthiran further submitted that, under Article 132 (3), the Chief Justice could not appoint a five-Judge bench unless someone applied for it under a public interest issue. The judges who heard the matter, if available have a right to re-examine.

Faiz Mustapha PC, said that the hearing of the case and the order had been done by varied benches. The Constitution of the bench had been a comedy of errors. In regular circumstance, the Chief Justice may constitute any bench to review the issue.

The Attorney General Mohan Peiris PC, appeared with Deputy Solicitor General, Sanjay Rajaratnam and Senior State Counsel Nerin Pulle for the State.

Faiz Mustapha PC, at the conclusion of his submissions for yesterday, said that Jayasundera could not even withdraw his affidavit, since it was given on Court order. Counsel Sumanthiran replied that even that must be considered by the Judges who ordered it.

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