A tale of two stay
orders
The appeals court issued a stay order on the 3rd of
November preventing the Prime Minister Mahinda Rajapakse, the ministers, deputy
ministers and state ministers acting in
their respective positions. The stay order will stay until the Appeals court
delivers its judgment on the issue of a Quo Warranto writ. This does not mean
that the Portfolios have been abolished as claimed by some former ministers of
the UNF government. The appointment of the Prime Minister and the minsters is
legal and has not been challenged and Mahinda Rajapakse remains the Prime Minister
of the country.
A stay order is a stay order. One cannot
proceed nor go back to previous situations. Ranil Wickremasinghe cannot claim
that he is the Prime Minister of the country, even with the assistance of the
Hatarawaram Devio. Mahinda Rajapakse
has not been replaced by Ranil Wickremasinghe and it appears that the new-found
gods of the latter have not been kind to him. For all purposes Mahinda
Rajapakse is the Prime Minister of the country though he cannot function in
that capacity until the judgment is delivered by the Appeals Court.
The other standing order was issued by the
Supreme Court on the 13th of November suspending the dissolution of the Parliament by the
President. The Supreme Court only withheld the relevant gazette notification
and the order on the 9th of November by the President has not been quashed.
The status quo has to be maintained and the Parliament had been prorogued on
the 25th of October by the President. The Parliament was to be summoned
on the 14th of November but the Supreme Court issued the stay order
before that particular day. The status quo was that the Parliament had been
prorogued on the day of the issue of the stay order. The stay order did not
allow the President to proceed or go back and only part of his previous order
to prorogue and then summon the Parliament has been carried out. The Parliament
had been prorogued but not summoned. That status quo had to be maintained.
The Supreme Court issued the stay order on
the 13th of November, and by that time the reconvening of the
Parliament part of the gazette notification had not been carried out. The
Parliament had been prorogued and not reconvened on the date of the issue of
the stay order.
As Mahinda Rajapakse is still the Prime
Minister of the country the stay order by the Appeals Court has to respect the
status quo, and he cannot be replaced by anybody else or by himself until the
Courts delivers its final judgment on some day on or after the 12th of December. I am glad that the relevant authorities have respected the stay order
by maintaining the status quo. Similarly I thought that Parliament should have
been in a prorogued state until the Supreme Court decides on the 7th of December, respecting the stay order.
In this regard I quote the following
ruling on stay orders in Indian Courts, which has been circulated in the recent
past.
“ 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".
