(Text of Interim Order Issued by the Court of Appeal Regarding the Fundamental Rights Petition Filed by 122 Members of Parliament Seeking a Writ of Quo warranto Against Kurunegala District MP Mahinda Rajapaksa and 48 Others Functioning as Prime Minister, Cabinet Ministers, State Ministers and Deputy Ministers Respectively)
In the case at hand before this Court, the 122 Petitioner members of the 225 member Parliament state that a no-confidence motion was passed by a majority in the said Parliament.
The Petitioners allege that the Respondents have usurped the public office namely the respective positions in the office of Prime Minister, Cabinet of Ministers and other Ministers.
This Court has considered the submissions made by the learned President’s Counsel for the Respondents who stated that the granting of interim relief by this Court would result in a situation where the Country would have no Prime Minister, no Cabinet of Ministers as well as no other Ministers.
On the other hand, this Court has considered the submission of the learned President’s Counsel for the Petitioners who stated that a great damage would be caused if this Court after the argument of the case accepts what the 122 Petitioner members of the Parliament have asserted in this case, and concludes that the Respondents are not entitled in law to function in the respective public offices. In such an event, the Respondents would be mere usurpers of office of the Prime Minister, Cabinet of Ministers and the other Ministers.
This Court is mindful that wide powers of governance of the Country are vested with the Prime Minister, Cabinet of Ministers and the other Ministers by virtue of various provisions of the Constitution as well as other laws.
Thus, whoever holding such office is required to make important decisions which will affect the whole country at large both locally and internationally. Most of such decisions may not be reversible.
This Court is also mindful of the damage that would be caused if this Court having granted interim relief to restrain the Respondents from functioning in their public offices and then proceed to subsequently dismiss this application refusing to issue the remedies prayed for by the Petitioners.
However, the Court observes as per the prayers pertaining to the interim relief in the petition, what the Petitioners have requested this Court to restrain is not the functioning of the Prime Minister or the Cabinet of Ministers or any other Minister but to restrain the Respondents’ from functioning in those offices. Thus, the Court observes that the interim orders prayed for, are directed against the individual respondents to restrain them from functioning in the relevant public offices.
The question as to who should be appointed to function in the said offices if this Court restrains the Respondents from functioning in the relevant offices is not a matter for this Court but for those who are vested with such powers in terms of the Constitution.
Moreover, if what the 122 Petitioner Members of Parliament have asserted in this case is found to be correct, then the present prevailing situation of the country would be a situation where the Country would have no Prime Minister, no Cabinet of Ministers as well as no other Ministers.’ In such an event, the granting of interim relief would not create any fresh situation than that is prevailing.
Thus, the balance of convenience of the parties to this case is tilted in favour of the case advanced by the 122 Petitioners.
Another question one should ask at this moment is whether an irreparable or irremediable damage would be caused by not restraining the Respondents from functioning in the respective public offices. This Court is of the view that it should answer this question in the affirmative.
Further, it is the view of this Court that the damage that may be caused by temporarily restraining a lawful Cabinet of Ministers from functioning would in all probabilities be outweighed by the damage that would be caused by allowing a set of persons who are not entitled in law to function as the Prime Minister or the Cabinet of Ministers or any other Minister of the Government.
The magnitude of the latter damage would be very high. Such damage would be an irreparable or irremediable one. Such damage would also have far reaching consequences to the whole country. In such a situation a final order could be rendered nugatory even if the petitioners are successful.
For the foregoing reasons, this Court decides to grant
1) an interim order restraining the 1st Respondent from functioning as Prime Minister and / or Minister of the Cabinet of Ministers until the final hearing and determination of this application;
2) an interim order restraining the 2nd to 29th Respondents from functioning as Ministers who are Members of the Cabinet of Ministers until the final hearing and determination of this application;
3) an interim order restraining the 39th to 41st Respondents from functioning as Ministers who are not members of the Cabinet of Ministers until the final hearing and determination of this application;
4) an interim order restraining the 42nd to 49th Respondents from functioning as Deputy Ministers until the final hearing and determination of this application.
This Court would take all possible measures to dispose this application as soon as possible and thus would set appropriate time limits for the parties to take other necessary steps to enable this Court to fix this case for argument and then to pronounce the judgment.
Justice Preethi Padman Soorasena
President of the Court of Appeal
Justice Arjuna Obeysekera: I agree