- Supreme Court granted special leave to proceed with the appeal by staying the Court of Appeal’s ongoing proceedings
- No-faith motion not properly passed and hansard not admissible: Counsel for Mahinda and his Govt
- Court has no jurisdiction to delve into parliamentary proceedings: Counsel for parliamentarians
By Shehan Chamika Silva
The Supreme Court Bench comprising Justices Eva Wanasundara, Buwenaka Aluwihare and Vijith K. Malalgoda in a unanimous decision yesterday refused to vacate the Court of Appeal Interim Order given on Mahinda Rajapaksa and his Cabinet of ministers.
Meanwhile, in a 2 to 1 decision granted special leave to proceed with the appeal by staying the Court of Appeal’s ongoing proceedings. However, Justice Vijith K. Malalgoda gave a dissenting view on the special leave to proceed.
The case was fixed for next year on January 16, 17 and 18.
The Supreme Court also directed the Registrar to convey the petitioner-respondents’ request for a fuller Bench to hear this case to the Chief Justice to decide if it was appropriate to do so.
Prior to the beginning of the proceedings, Justice Buwaneka Aluwihare announced the retirement of the Justice Eva Wanasundara and said today was her last day as a judge of the Supreme Court and that he and the Bar appreciated her service to the judiciary and wished her well.
After hearing the motion which sought a fuller bench, the Supreme Court decided to support the matter. Counsel Romesh de Silva, Ali Sabri, Sanjeewa Jayawardena, Gamini Marapana asked that leave be granted for the appeal in the interest of the public.
Romesh de Silva PC said the Court of Appeal should not have considered the Hansard on which the petitioners based their arguments because this hansard is not a final document and thus not admissible in Court.
He said the Hansard prepared on the proceedings took place in Parliament on November 14 and there was a question on its finality, because, on the face of it, it is an uncorrected document.
“ The Court of Appeal had no jurisdiction to hear the matter earlier since there were two versions as to what happened in parliament on November 14”, the Counsel said.
He said the no-confidence motion against Mahinda Rajapaksa and his government was never passed properly in Parliament on November 14 and that the Hansard upon which the petitioners based their applications in the Court of Appeal could not be admissible or be entertained in Court because the Court could not rely on draft documents, which are not finalised.
The Counsel told the court that the no-conference motion was not carried on November 14. Even the words “motion is carried” by the Speaker are not in the video footage of that day since it was not what happened on that day.
He said that the Interim Order which restrained Mahinda Rajapaksa and his government was an illogical and an un-understandable decision by the Court of Appeal.
Meanwhile, Gamini Marapana PC said the interim order was ill-considered since the Court of Appeal had already concluded that there was no authority to the respondents to hold the government before the final order was delivered. And the Court of Appeal rendered the country without a government granting circumstances which never prevailed.
He said since both parties were agreeing that the matter was of grave importance then the Constitution mandated the SC that the appeal be leave to proceed be allowed and asked that the CA Interim Order be vacated.
Manohara de Silva PC said the Hansard does not reflect the no-confidence motions being passed in accordance with the Constitution and the Standing Orders. He said the voice votes could not be taken to suspend the SOs.
Responding to the arguments President’s Counsel Kaneg Iswaran said the question here is against the respondent-petitioner Mahinda Rajapaksa exercising illegal power, as the Prime Minister, hence, the concern should be on the illegality, because under the Article 48 when there is a no confidence motion passed, the Cabinet shall be dissolved.
He said there could not be any dispute on the matter of the no-confidence motion because 122 members of parliament have said so and confirmed it with their affidavits. “So let’s ignore the hansard for a moment and see that these affidavits of the 122 parliamentarians. Then it is prima facie evidence that this no-confidence motion was passed and hence the Cabinet stands dissolved,” Kaneg Iswaran PC said.
Counsel Suren Fernando in his response said under Section 3 of Parliamentary Powers and Privileges Act and Article 67 of the Constitution the proceedings of Parliament cannot be challenged in a court of law, hence the way in which the no-confidence motion was passed cannot be decided by the Court.
He said that under Section 18 of the same Act and the Evidence Ordinance Section 78, the copies of parliamentary proceedings that are purported to be printed are admissible in the court of appeal and was of the view that such documents should be considered as it is without putting any gloss into it.
He said there was ample was evidence in the Court of Appeal to issue notices and issue the interim order as the respondents in that case -- Mahinda Rajapaksa and his government continued to sit in the office even after Parliament passed the no-confidence motions.
Responding to the argument that there will be chaos in the country without a government, Counsel Niran Anketell in his response to the respondent-petitioners moved the Court’s attention to the Finance Chapter of the Constitution (Articles 148,149,150) and said every expense has to be sanctioned by Parliament not the Cabinet.
He said unless a Budget is passed the country cannot move into the next year and a minority government could not pass such a resolution in Parliament.
“That is why a majority is important. If the Budget is not passed who takes the responsibility. Government is subject to Parliament and without a majority in Parliament the country cannot run. This is not a situation where we should look into the political aspects, but the survival of the people otherwise this could lead to a humanitarian crisis, therefore as a solution to this matter we should allow someone with the majority to take up the government,” Counsel said.
Counsel Viran Corea said if Mahinda Rajapksa and his Cabinet be allowed to function, there will be a Cabinet that could not function, since it is clear that the so called government has no majority in the Parliament.
Counsel Rauf Hakeem citing a precedent in the Shirani Bnadaranayake case said the Supreme Court could not impeach the proceedings of Parliament.
Referring to his preliminary objection, President’s Counsel M.A. Sumanthiran was of the view that the Court was prohibited according to the law to look into the question of law that the respondent-petitioners were seeking, because they were asking specifically to determine on the no-confidence motion, as to whether it was carried properly. He said such a determination could not be done by Court as it was expressly prohibited to do so by the Constitution.
The Counsel was of the view that it was the Speaker who should decide on the matters that happen in Parliament and to decide whether the no-confidence motion was passed or not is a matter for Parliament to decide.
“Even a grade seven student will know that this so-called government has no majority in Parliament. We came to the Court of Appeal on the basis that two no-confidence motions were passed against the respondents and therefore holding office forcibly is not lawful and as such a writ be issued against such an act,” he said.
Responding to the arguments put forward on the suspension of Standing Orders, Counsel said, “We do such suspensions day in and day out,” hence it is not a new procedure in Parliament. He also said that the other institutions cannot delve into parliamentary matters.
Counsel Hijaz Hisbullah referring to the remarks made on the chaos in the country said, if the court vacated the interim order and allowed the so-called government to function, then it would be a Cabinet which was unable to pass a budget in parliament and that would be the most chaotic situation that could happen.
President’s Counsel J.C. Weliamuna said under Article 4C of the Constitution the judicial power of the people is vested with the courts through Parliament and that parliamentary privileges could not be questioned in a court of law.
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