The “Stay Order” by the Supreme Court
Posted on November 18th, 2018

NEVILLE LADDUWAHETTY Courtesy The Island


The actual words used by the Supreme Court in the Stay Order re Dissolving Parliament were: “… interim order staying the operation of ….”

This SC ruling relates to the Proclamation by the President dated November

9, 2018, Dissolving Parliament by Gazette notification 2096/70, which states:

“KNOW YE that by virtue of the powers vested in me by paragraph (5) of

Article 70 of the Constitution of the Democratic Socialist Republic of Sri Lanka to be read with paragraph (2) (c) of Article 33 of the Constitution of the Democratic Socialist Republic of Sri Lanka and paragraph (2) of Article 62 of the Constitution…and in pursuance of the provisions of Section 10 of the Parliamentary Elections Act. No. 01 of 1981…”

(a) “Dissolve Parliament with effect from midnight today and summon the new Parliament to meet on the Seventeenth day of January Two Thousand and

Nineteen”

The Supreme Court then issued “an interim order staying the operation of Gazette Extraordinary No. 2096/70 of 9th Nov. 2018, on November 13, 2018. Thus,

Parliament was dissolved on November 9th and the SC ruling was issued on

November 13th 2018.

Quoted below is the interpretation given by Indian Courts in regard to an “order staying the operation of” as appeared in the citation:

“B.P.L. Ltd. And Ors vs R. Sudhakar And Ors on 6 May, 2004

Showing the contexts in which ‘operation of order a stay order’ appears in the document:

“This Court held that the said ‘stay’ ‘order’ could not have the effect of reviving the proceedings, which had been disposed of by the appellate authority by its ‘order’ dated 7.1.1991 observing that “While considering the effect of an interim ‘order’ staying’ the ‘operation of the order’ under challenge, a distinction has to be made between quashing of an ‘order’ and ‘stay’ of ‘operation’ of an ‘order’. Quashing of an ‘order’ results in restoration of the position as it stood on the date of passing of the ‘order’ which has been quashed. The ‘stay’ of ‘operation’ of an ‘order’ does not, however, lead to such a result. It only means that the ‘order’ which has been ‘stayed’ would not be ‘operative’ from the date of passing of the ‘stay’ ‘order’ and it does not mean that the said ‘order’ has been wiped out from existence”.

Clearly, if the interpretation given by the Indian Courts serves as a guide, it must follow that the reconvening of Parliament by the Speaker amounted to a continuation of operations. This amounts to a violation of the Order Dissolving Parliament. Furthermore, for the Elections Commissioner to proceed with preparations to conduct a General Election also amounts to continuing operations. This too amounts to a violation of the Order Dissolving Parliament. Therefore, Parliament cannot be reconvened, and any and all actions taken such as the establishment of majorities, suspension of Standing Orders as well as the No Confidence motions by Parliament since the Stay Order was issued on November 13th, 2018, amounts to a violation of the Order Dissolving Parliament.

In view of the material presented above, it is imperative that a determination from the SC of Sri Lanka be sought as to whether Parliament could reconvene and deliberate on issues following their Interim Order “Staying Operations”.

NEVILLE LADDUWAHETTY

One Response to “The “Stay Order” by the Supreme Court”

  1. Hiranthe Says:

    I totally agree with Neville,

    That is how I interpreted it at the beginning and I was wondering why Yahaps were so exited and happy.

    Later, as both parties attended the parliament, I thought I may be wrong as there are law professors in the Pohottuwa Team.

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