CA overrules preliminary objection; rejects plea to cancel Interim Order

Writ of Quo Warranto against Mahinda and Cabinet 

By S.S.Selvanayagam

The Court of Appeal yesterday overruled the Preliminary Objection raised by the Respondent on the non-compliance of Rule of the Court involving a technical issue.

The Court fixed the Petition for Argument on 16, 17 and 18 January 2019, and directed the Respondents to file their Objections on or before 28December, and the Petitioner to file Counter Objection of or before 4January. Counsels for the Respondents, including Mahinda Rajapaksa, raised Preliminary Objection on the purported non-compliance of Court Rule, claiming that the Petitioner has issued the Notices but without Petition, Affidavit, and documents.

They hence sought the Court to cancel the Interim Order which restrains Mahinda Rajapaksa and 48 other respondents from functioning in the offices of Prime Minister, Cabinet Ministers, non-Cabinet Ministers and Deputy Ministers,respectively, until the final hearing and determination.

The Bench, comprising Justices P. Pathman Surasena (President/CA) and Arjuna Obeysekara, overruled the Preliminary Objection and rejected the Respondents’ plea.

Counsel K. Kanag-Iswaran countered that the Petitioners had given the Briefs twice to the Respondents in Court and by courier service. Justice Arjuna Obeysekara also read the part of the minutes of the Court, that the same had been given in Court to the Respondents.

On 4December, the Court in its Order stated that it is mindful of the fact that the Order it is required to make at this stage in the instant case is only an Interim Order, and not the Final Order, and therefore it should avoid arriving at any conclusion, which may be prejudicial to its final adjudication of the issues raised by parties.

The Court, having considered all material placed before it at the first instance, decided to direct the Respondents to show by what authority they claim to function in the respective public offices, referred in the Writ application.

The Court took cognizance that the Petitioners alleged that the Respondents had usurped the public office, namely, the respective positions in the offices.

The Court also considered the submissions made by the Counsels for the Respondents, who stated that the granting of Interim Relief by the Court would result in a situation where the country would have no Prime Minister and no Ministers.

The Court also considered the submission made by Counsel for the Petitioners, who stated that a great damage would be caused if the Court, after argument of the case, accepts what the 122 petitioner MPs have asserted in this case, and concludes that the Respondents are entitled in law to function in their respective public offices and that in such an event, the Respondents would be mere usurpers of the respective offices.

The Court was of the view that the balance of convenience of the Parties is tilted in favour of this case advanced by the Petitioners.

Having cognizance of above and other things, Court issued Interim Order until the final hearing and determination, restraining the Respondents from functioning in the respective offices.

K. Kanag Iswaran PC with Ikram Mohammad PC, A.M. Faiz, Viran Corea and Suren Fernando, Niran Anketell and Shiloma David instructed by Vidanapathirana Associates appeared for the Petitioners. 

Gamini Marapana PC with Navin Marapana as well as Romesh de Silva PC, Manohara de Silva PC, Sanjeeva Jayawardena PC, M.U.M.Ali Sabry PC, Kushan de Alwis Pc and Shaveendra Fernando PC appeared for the respondents.

The Petition for Writ of Quo Warranto (a writ or legal action requiring a person to show by what warrant an office or franchise is held, claimed, or exercised) was filed by purported Prime Minister Ranil Wickremesinghe and his purported Ministers, as well as Parliamentarians of diverse parties,totalling 122 petitioners.

Petitioners sought mandate from the Court requiring the Respondents to show by what authority they claim to function as Prime Minister and/or Ministers and/or Deputy Ministers.

They also sought the Court for a declaration that the Respondents are not entitled to hold the office of Prime Ministers and Ministers or Deputy Ministers.

They asked the Court to restrict the Respondents from functioning as Prime Minister, Ministers and Deputy Ministers until the final determination and hearing of their application.