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Court can’t rely on draft documents: Respondent's Counsel

2018-12-03 14:42:50
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President's Counsel Kushan de Alwis, Ali Sabri and Romesh de Silva -- appearing for the respondents in the Quo Warranto writ petition filed by 122 MPs questioning the legitimacy of Prime Minister Mahinda Rajapaksa and his government to hold office -- said the applications should be dismissed on the basis that the Hanzard produced as a supporting document was not a final thus not admissible in Court.

Kushan de Alwis PC said the petitioners had sought relief based on a document which can be corrected even tomorrow, because of a two-week time limit for the parliament proceedings as published in the Hanzard to be corrected if necessary.

He said the applications were filed in Court on November 23 based on the Hanzard prepared on the proceedings that took place in Parliament on November 14 and as such there was a question on the finality of the Hanzard, because as at that date it was an uncorrected document.

Counsel said the Hanzard on which the petitioners based their applications could not be admissible or entertained in Court because the Court could not rely on draft documents, which are yet to be finalised.

He said the burden of proof on whether the documents were final was the responsibility of the petitioners and that an application based on a draft document was sufficient enough to be dismissed.

President's Counsel Romesh de Silva said it was a misrepresentation of material facts by the petitioners because they had not informed Court that the Hanzard that they had relied upon was an uncorrected version.

President's Counsel Ali Sabri said the petitioners, in their application, despite challenging the appointment of the respondent as prime minister by the President in the first place, they are seeking relief only on the matters which took place on November 14 and onwards.

He said the manner in which the parliamentary proceedings took place on November 14 was nothing but a sham because the manner in which the motion to suspend the Standing Orders was decided and the no-confidence motion was voted on through a division of ‘Ayes and Noes' contradicted the parliamentary SOs.

Associating with the President's Counsel Gamini Marapana's earlier argument, Ali Sabri PC was of the view that the proclamation issued by the president on November 9, 2018 to dissolve parliament will stand dissolved despite the interim order given by the Supreme Court was not the final determination of the Court because when something is dissolved it cannot be suspended, and the interim order is prospectively effected, therefore the decision of dissolution stands and as such Parliament could not have even met on November 14.

Responding to the arguments by the counsel for the respondents, President's Counsel K. Kanag-Iswaran said the parliamentary proceedings were admissible as evidence under the law and not impeachable by Court.

He said the question here was about the respondent (Mahinda Rajapaksa) holding on to illegal power, as Prime Minister the concern should be on the illegality, because under the Article 48 when there is a no-confidence motion passed, the Cabinet stands dissolved.

Kanag-Iswaran PC said there could not be any dispute on the matter of the no-confidence motion because 122 parliamentarians had filed this petition.

Considering the submissions, the Bench comprising Judge Preethi Padman Surasena (President of the Court of Appeal) and Judge Arjun Obeysekara observed the possibility of delivering a preliminary order on the petitions by 3.00 p.m. if the Bench was in a position to prepare a comprehensive judgement by that time. (Shehan Chamika Silva)


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