SC gives leave to proceed, but CA's interim order remains

A three-member Supreme Court bench has granted special leave to proceed with a petition challenging the Interim Order issued by the Court of Appeal preventing Mahinda Rajapaksa and 48 other respondents from functioning as prime minister, cabinet ministers, ministers of state and deputy ministers.

But after lengthy sittings on Friday, the Court refused to grant the interim relief sought by petitioner by revoking the interim order given earlier this month by the Court of Appeal.

Ruling that the Interim Order would stand until the case is concluded, the country’s highest court said it would take up the case on January 16, 17, and 18. The three-member bench comprised Justices Eva Wanasundera, Buwaneka Aluvihara and Vijith K. Malalgoda.

Justice Malalgoda, who made a dissenting order, rejected the petitions on the basis that those are in limine.

The Appeal petition was filed by Parliamentarians Johnston Fernando, Wijeyadasa Rajapakshe, Dinesh Gunawardena and Chamal Rajapaksa challenging the interim order issued by the Court of Appeal on December 3.

An intervening motion on behalf of five respondents was filed, raising serious concerns over the case being taken up before Justice Eva Wanasundera. The motion cited a newspaper interview where she had explained how she was appointed as Supreme Court Justice by former President Mahinda Rajapakasa, the main respondent named in the Quo Warranto petition.

At the outset, the petitioners urged Justice Wanasundera to recuse herself from the bench and refer the case to the Chief Justice for a full bench to hear the petition. However, the bench rejected the request and continued to hear the case throughout the day.

The respondents' main counsel K. Kanag- iswaran said that in terms of the Constitution's Article 48(2) if Parliament passed a vote of no- confidence against the Prime Minister, the cabinet of Ministers stood dissolved.

"Ignore the Hansard of Parliament for a moment... 122 MPs who constitute the majority of Parliament have come before the Court of Appeal to say that they do not have confidence in the purportedly appointed PM. What more evidence is needed," Mr. Kanag-iswaran asked.

The petitioners' senior counsel Romesh de Silva asked whether the Court of Appeal had jurisdiction to suspend the functioning of the prime minister and the cabinet.

He said the Appeal Court's action was not lawful and it had resulted in a situation where there was no government or cabinet.

Parliamentarian and Counsel M. A. Sumanthairan, one of the respondents who appeared in person, argued that the petitioners had asked the Supreme Court to look into Parliamentary proceedings to determine whether the vote of no-confidence was carried out according to the law or not. He claimed that the court did not have the power to do so.

"The petitioners submitted stenographers' notes and videos of parlia- mentary proceedings while questioning the official record of Parliament-- the Hansard. But Parliament jealously guards the judicial power of the people vested with it," he added.

Gamini Marapana and Navin Marapana along with Romesh de Silva and Manohara de Silva appeared on behalf of the Appellants.

K. Kanag Iswaran, (instructed by Mohan Balendara) and M. A. Sumanthiran, Ikram Mohamed, Viran Corea, J. C. Weliamuna, Niran Anketell, Suren Fernando, Rauf Hakeem and Hijaz Hisbullah, appeared for the Petitioners.