016-NLR-NLR-V-80-NANDA-MATHEW-Petitioner-and-COMMISSIONER-OF-ELECTIONS-et-al-RespondentS.pdf
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1977 Present: Tennekoon, C.J., Vythialingam, J. and Tittawella, J.
NANDA MATHEW, Petitioner and COMMISSIONER OFELECTIONS et al, Respondents.
S.C. 502/77
Writ of Mandamus – Discretion of Court.
The Writ of Mandamus is not a writ of right and is not issued as a matter of course. Thegrant of a mandate in the nature of a Writ of Mandamus is, as a general rule a matter for thediscretion of the court. Petitioner must show prejudice or adverse effect in order to succeed.
Application for a mandate in the nature of a Writ of Mandamus.
V. S. A. Pullenayagam with Dr. N. Tiruchelvam, Asoka Somaratne andMrs. Shanthi Gnanakaran for the petitioner.
Ian Wickremanayake, Solicitor-General with G. P. S. de Silva DeputySolicitor-General and D. C. Jayasuriya State Counsel for the 1st and 2ndrespondents.
Cur. adv. vult.
July 11,1977. Tennekoon, CJ.
The petitioner seeks a mandate directing the Commissioner forParliamentary Elections to print his name on the ballot papers as“Caluadewagey Nanda Mathew” and not as “Mathew, CaluadewageyNanda”. After hearing arguments we refused the application. We now stateour reasons.
The President’s proclamation dissolving the first National State Assemblyof the Republic fixed the 6th of June 1977 as the day of nomination ofcandidates for the general election of members of the next National StateAssembly. On that day, the petitioner, who describes himself in the caption atthe head of his petition to this court and in the affidavit which accompanies itas Caluadewagey Nanda Mathew, duly submitted a nomination paper for theElectoral District of Kolonne. Section 28 of the Ceylon (ParliamentaryElections) Order in Council (hereinafter referred to as the Order in Council)enacts that every nomination paper “shall be substantially in the form G” inthe Schedule. It also requires the written consent of the candidate to beannexed to or endorsed on the nomination paper. Form G contains a space
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TENNEKOON, C.J. – Nanda Mathew v. Commissioner of Elections
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for entry of the name of the candidate coupled with certain instructions as tohow the name should be stated. Form G in this regard reads as follows:-
1. Name of candidate in full (give name, Christian or “ge” or other namesin full; surname or “ge” name first
In the nomination paper of the petitioner his name was given thus:
“Caluadewagey Nanda Mathew”
There were no objections taken to the nomination paper under section31(1) of the Order in Council either by the returning officer or by any otherperson. It is to be noted that under subsection (1) (a) of section 31a possibleground of objection is –
“that the description of the candidate is insufficient to identify thecandidate”.
There being more than one candidate duly nominated the returning officeradjourned the election for a poll to be taken on the 21st of July 1977. Therewere four other candidates nominated for the Kolonne Electoral District. Sofar as the petitioner was concerned he indicated to the returning officer, interms of subsection (lc) of section 35 of the Order in Council, that he did notwant omitted or specified by initial only, any of his names mentioned in hisnomination paper.
Upon the Commissioner receiving the returning officer's report undersection 35(2), he published a notice in terms of section 35(5) in theGovernment Gazette bearing date 28th June 1977 and in the newspapers of28th June 1977. Sub-paragraph (c) of section 35(3) requires the notice tocontain “the names of the candidates in the order in which they will beprinted on the ballot papers” and among other things “the symbol allottedto each candidate.”
To ascertain the order in which names of candidates are to be arranged onthe ballot paper one has to look at section 40(2) which reads:
“Every ballot paper shall contain a list of the candidates in Sinhala, Tamiland English, described, subject to the provisions of subsection (lc) ofsection 35, as in their respective nomination’papers, and arrangedalphabetically in Sinhala in the order of their surnames or “ge” names andif there are two or more candidates with the same surname or “ge” name,of their other names….”
The Commissioner's notice under section 35(3) gave the names of thecandidates for the Kolonne Electoral District as:-
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J. R. DissanayakeMathew, Caluadewagey NandaS. D. WanigatilakaW. S. Seni WijesingheR O. Wimalanaga
in that order, together with the allotted symbol against each name. Thepetitioner's name it will be noted appears as Mathew, Caluadewagey Nanda.On the 28th of June he wrote to the Commissioner and objected to his namebeing stated as “Mathew, Caluadewagey Nanda”, and requested that it bestated as “Caluadewagey Nanda Mathew” which is the description of himselfgiven in his-nomination paper. It is to be noted in passing that if thepetitioner’s name is put on the ballot paper as Caluadewagey Nanda Mathew,his name, following the order of letters in the Sinhala alphabet would comefirst and not second as happens when the name ‘Mathew’ is placed first. TheCommissioner refused to comply with this request by his letter of 29th June1977 in which he merely stated: “Reference your letter of 28th June 1977,1have to refer you to section 35(1 c) and 40(2) of the Ceylon (Parliamentary. Elections) Order in Council 1946”.
In the present application petitioner prays for a Mandate in the nature of aWrit of Mandamus directing the Commissioner to print the name of thepetitioner as Caluadewagey Nanda Mathew in the ballot papers as this iswhat section 40(2) of the Order in Council requires him to do.
It would appear from the affidavit of the Commissioner and from whatwas stated without contradiction at the bar:-
that the polling for the General Election is fixed for the 21st of July1977,
that all ballot papers including the ballot papers for the ElectoralDistrict of Kolonne have already been printed and issued to the returningofficers,
that these ballot papers for the Electoral District of Kolonnecontain the petitioner's name as “Mathew, Caluadewagey Nanda” placedsecond,
(iy) that ballot papers for Kolonne have already been issued to personsentitled to be treated as postal voters,
that some postal ballot papers would already have come back andbeen placed in the postal ballot box,
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that the petitioner in giving his written consent on the nominationpaper signed as “Nanda Mathew”,
that the petitioner was a candidate at the General Elections held inMarch 1965 and in May 1970 and that at both these General Elections thepetitioner’s name appeared on the ballot paper as “Mathew,Caluadewagey Nanda”,
that the petitioner and his father both use the name “Mathew” astheir surname, the petitioner being thus generally known as “NandaMathew” and his father as “Cyril Mathew”.
From these facts it is clear that the process of election of a member for theKolonne Electoral District which commenced on the 6th June with theacceptance of nomination papers, is still continuing; the election has beenadjourned to the 21st of July for a poll to be taken; polling has in somerespects commenced, for postal ballot papers have been placed in the handsof those entitled to vote by post and some have already voted.
In these circumstances, I take note of the fact that the petitioner does notstate in his petition or in his affidavit that the Commissioner’s alleged failureto state his name as required by section 40(2) is such a non-compliance with .the Order in Council as is likely to affect the result of the Election. Counselfor the petitioner was repeatedly asked whether the statement of his name as“Mathew, Caluadewagey Nanda” is likely to cause the least prejudice to thepetitioner in contesting the election. Counsel’s reply was that that was not hiscase and that he has come to court to see that the Commissioner observes theletter of the law and that it is. unnecessary and irrelevant to show any possibleprejudice.
Let me say at once that in some cases of failure to comply with themandatory provision of the Order in Council the prejudice to some party willbe self-evident. That would depend on the nature of the provision. Here, inthe background of the facts that are before us there is no reason to assumethat the petitioner is going to be prejudiced in any way. Thus this applicationis nothing more than what petitioner’s counsel described it, an application toorder the Commissioner to comply with the letter of the law irrespective ofall other considerations.
The Writ of Mandamus is not a Writ of right and is not issued as a matterof course. Thus the grant of a Mandate in the nature of a Writ of Mandamusis, as a general rule, a matter for the discretion of the court.
In stating the nature of a Writ of Mandamus the following passage occursin Halsburys ‘Laws of England’1:-
“The Writ of Mandamus is a high prerogative writ of a most extensiveremedial nature and is in form a command issuing from the High Court of
Bailsman Ed. Vol. 9 page 744.
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Justice directed to any person….requiring him to do some particular thingtherein specified which appertains to his office and is in the nature of apublic duty. Its purpose is to supply defects of justice; and accordingly itwill issue to the end that justice may be done, in all cases where there isa specific legal right and no specific legal remedy for enforcing suchright”, (stress added).
Assuming without deciding that the petitioner is right in his contentionthat section 40(2) requires the Commissioner to take petitioner's name as“Caluadewagey Nanda Mathew” and not as “Mathew, CaluadewageyNanda” for the purpose of printing the ballot papers, it is necessary that thecourt must be satisfied, before it will grant the application that thepetitioner’s interest is not merely in a clinical demonstration that theCommissioner is wrong and he is right, but also that justice demands, in thesituation that exists, that the Commissioner be ordered to comply with thelaw. In the absence of even the slightest hint that the Commissioner’s actionwould or may have an adverse effect on him in some way, I think thediscretion of the court must necessarily be resolved against the petitioner.
We were accordingly of the view that the application must in theexercise of the courts discretion be refused and it was accordingly refused.
Vythiai.ingam, J. -1 agree.Tittawella, J. – I agree.
Application refused.