CENTRE FOR POLICY ALTERNATIVES (GUARANTEE) LIMITED AND ANOTHER

033-SLLR-SLLR-2003-1-CENTRE-FOR-POLICY-ALTERNATIVES-GUARANTEE-LIMITED-AND-ANOTHER.pdf


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CENTRE FOR POLICY ALTERNATIVES (GUARANTEE)LIMITED AND ANOTHER
v
DAYANANDA DISSANAYAKE, COMMISSIONER OFELECTIONS AND OTHERS
SUPREME COURTFERNANDO, J.
GUNASEKERA, J. ANDWIGNESWARAN, J.
SC APPEAL No. 26/2002CA APPLICATION No. 487/99WITH SC APPEAL No. 27/2002CA APPLICATION No. 488/9917th MARCH, 2003
Writs of Ceriorari and Mandamus – Validity of the nomination of a person to filla vacancy of a Provincial Council member – Provincial Councils Elections Act,section 65( 1)- The right of secretary of recognized political party or leader of
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independent group to nominate a person whose name was not in the originalnomination paper – Sections 65(2) and 65(3)of the Provincial CouncilsElection Act
The 1st respondent was the Commissioner of Elections, the 2nd respondentwas a Member of Parliament and the 3rd respondent was the Secretary of thePeoples’ Alliance (“the PA”) during the 1999 Provincial Councils Election.
Being a Member of Parliament, the 2nd respondent was not qualified for elec-tion as a member of the Provincial Council. Hence his name was not includedin the PA nomination paper in either of the Districts of the Uva ProvincialCouncil. His wife was a candidate who was elected and thereafter she wasappointed Chief Minister of the Uva Provincial Council. Shortly thereafter, oneof the Provincial Councillors elected to that Provincial Council resigned and the1st respondent called upon the 3rd respondent to nominate an eligible personto fill that vacancy in terms of section 65(2) of the Provincial Councils ElectionsAct ('The Act”).
The 3rd respondent nominated the 2nd respondent who had earlier resignedhis seat in Parliament. On the same day the 2nd respondent’s wife resignedfrom the office of Chief Minister, Uva Provincial Council and the 2nd respon-dent was appointed Chief Minister.
The petitioner challenged the appointment of the 2nd respondent as a Memberof the Uva Provincial Council on the ground that he had no right to be declaredelected by the 1 st respondent as he was not a person whose name appearedin the PA nomination paper at the election.
Held:
The provisions of the Act relating to the result of the election (sections58(1), 58(1 )(e), (f) and 61A(2)) including bonus seats establish thatonly persons who can be declared elected to a Provincial Councilimmediately after an election are persons who were candidateswhose names appear on the nomination paper, on the basis of whichthe voters cast their votes and expressed their preferences.
Filling of vacancies in the membership of a Provincial Council is pro-vided for in sections 65(1 )(2) and (3) of the Act. The 1st limb of sec-tion 65(2) permits the secretary of the recognized political party or theleader of the independent group to nominate a person eligible underthe Act for election to fill the vacancy. The 2nd limb provides thatwhere such secretary or leader fails to make such nomination., theCommissioner shall appoint the candidate from the nomination listwho had secured the highest number of preferences next to the lastmember elected to that Provincial Council from that party or group.
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-o
Accordingly section 65(2) must be interpreted on the basis that ex-facie it authorizes the secretary to nominate a person qualified undersection 9 at the time of such nomination.
. 4. Section 65(3), however, creates a doubt as to whether the right of thesecretary of the political party or the group leader under section 65(2)to nominate a person qualified under section 9 at the time of suchnomination is unrestricted, because in terms of section 65(3) where aperson in the nomination list is not available e.g. when all the candi-dates have been elected or no candidate has received any prefer-ences the Commissioner is required to forthwith inform the Presidentwho may by order direct the Commissioner to hold an election to fillsuch vacancy. The doubt in respect of section 65(2) which is a gener-al provision should be resolved without rendering the special provisionof section 65(3) nugatory, viz., preserving the power of the Presidentto order an election; and consistently with democratic principlesenshrined in elections where according to the general scheme of theAct the electorate votes for a party indicating voter preferences forcandidates.
In the circumstances, despite the general words used in section 65(2),the power to nominate is confined to candidates whose namesappeared in the original nomination paper and who secured somepreferences at the election.
In view of the great public importance of the matter involved and thefact that no objection of futility was initially taken and that it is the lawsdelays that has given rise to the objection and as the principles applic-able to futility are not applicable, the objection by the respondent onthe ground of futility (based on the cessation of office of the 2ndrespondent) fails.
Cases referred to:
Karunathilake v. Dissanayake (1999)1 SRI LR 157
Karunathileka v. Dissanayake (No.2) (1999) 1 SRI LR 183
Punchi Singho v. Perera (1950) 53 NLR 143
Ramasamy v. Moregoda (1961) 63 NLR 115
Suudakaran v. Bharathi (1989) 1 SRI LR46
APPEALS from the judgments of the Court of Appeal.
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Dr. Jayantha de Almeida Gunaratne with K. Pinto Jayawardena for appellants– in SC 26/2002
Viran Corea for appellant in SC 27/2002
Saleem Marsoof. P.C. Additional Solicitor General with A. Gnanthasan, DeputySolicitor General for 1 st and 4th respondents.
Dr. Jayampathy Wickremaratne, P.C. with P. Wickremaratne for 3rd respon-dent.
Cur.adv.vult
May 27, 2003FERNANDO, J.
These two appeals were taken up together as the samequestion of law arose, relating to the nature and extent of the rightof the secretary of a recognized political party (or leader of an inde-pendent group), under section 65 of the Provincial CouncilsElections Act, No. 2 of 1988 (“the Act”), to nominate a person to filla vacancy caused by the resignation of a member of a ProvincialCouncil: to be precise, whether he was entitled to nominate a per-son whose name was not on the original nomination paper.
FACTS
The five-year term of office of five Provincial Councils (includ-ing the Uva Provincial Council to which these appeals relate) cameto an end in June 1998. The respective returning officers, bynotices under section 22 of the Act, duly fixed the date of poll forthe election to the new Councils for 28.8.1998. Nominations wereduly submitted.
The 2nd Respondent had been a Member of Parliament ofthe People’s Alliance during the nomination period, and it is com-mon ground that because he was a Member of Parliament he wasnot then qualified for election as a member of a Provincial Council.His name was not included in the People’s Alliance nominationpaper for either of the districts of the Uva Province. His wife’s namewas included.
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On 4.8.1998, the President by a Proclamation under section2 of the Public Security Ordinance brought the provisions of Part IIof that Ordinance into operation throughout Sri Lanka, and madean emergency regulation under section 5 deeming all the noticesunder section 22 of the Act to be, for all purposes, of no effect. Nofresh date of poll was fixed. The poll was thereby effectively post-poned, and postponed sine die. The Commissioner of Elections,the 1 st Respondent, took no steps to fix a new date of poll in theexercise of his powers under section 22(6) of the Act. The post-ponement of the poll and the failure to fix a new date were suc-cessfully challenged in an application to this Court under Article 126(Karunathilaka v Dissanayake). On 27.1.99 this Court directed theCommissioner to fix a new date of poll.
While that application was pending, the Provincial CouncilsElections (Special Provisions) Bill was placed on the Order Paperof Parliament in . November 1998. The provisions of that Bill pur-ported to empower the Commissioner to appoint a date of poll forthose five Councils and to empower the secretary of a recognizedpolitical party (or leader of an independent group) to substitute inthe place of any candidate whose name appeared in any nomina-tion paper any other person, even without the consent of, or noticeto, the original candidate. In its Determination in respect of that Bill(SC SD Nos. 9-14/98, 30.11.98), this Court held that those provi-sions were unconstitutional. That Bill was not enacted into law.
Immediately after the decision in Karunathilaka vDissanayake, the Commissioner fixed a new date of poll. That datewas objected to on several grounds, the validity of which theCommissioner accepted. Upon his application to this Court madeon 3.3.99, this Court directed him to fix a new date (Karunathilakav Dissanayake (No 2). The Commissioner thereupon fixed the pollfor 6.4.99.
At the electjon for the Uva Provincial Council held on 6.4.99,the 2nd Responder’s wife was elected. She was later appointedChief Minister of the Province. On 19.5.99 the 2nd Respondentresigned his seat in Parliament. On 21.5.99 one of the People’sAlliance members'elected to the Uva Provincial Council resigned;the Commissioner, called upon the 3rd Respondent, the secretaryof the People’s Alliance, to nominate an eligible person to fill that
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vacancy; and the 3rd Respondent nominated the 2nd Respondent.On 24.5.99 the Commissioner declared the 2nd Respondent to beelected, and on the same day his wife resigned from the office ofChief Minister. On 27.5.99 the 2nd Respondent was appointedChief Minister.
On 1.6.99 the Petitioners-Appellants (“the Petitioners”) inthese two appeals filed two applications in the Court of Appeal,praying inter alia for certiorari to quash the Commissioner’s decla-ration that the 2nd Respondent was elected as a member of theUva Provincial Council, and for quo warranto to declare that hewas not entitled to hold the office of Chief Minister. Among theRespondents to those applications were another three Members ofParliament, who resigned and became Chief Ministers (of theSabaragamuwa, North-central and Central Provincial Councils) insimilar circumstances. However, the Petitioners informed the Courtof Appeal that they did not wish to proceed against them, and theywere discharged from the proceedings.
On 6.11.2001 the Court of Appeal held that whenever avacancy arises in the membership of a Provincial Council, section65(2) of the Act empowers the secretary of the recognized politicalparty (hereinafter referred to as “the secretary”), which had nomi-nated the member vacating office, to nominate any eligible personto fill that vacancy even though his name had not appeared in theoriginal nomination paper submitted by that party and even thoughhe had not been eligible for election at the time that nominationpaper was submitted.
The Petitioners applied to this Court for special leave toappeal, which was granted on 28.5.2002, upon the following ques-tions:
“(1) Did the Court of Appeal err in holding that a person, whosename did not appear on the nomination list submitted by therelevant political party at the Provincial Council election,could thereafter be nominated by the secretary of the rele-vant political party to fill a vacancy which arises in the saidCouncil?
(2) Did the Court fail to consider the implications of section65(3) of the Act for the interpretation of section 65(2)?”
The 2nd Respondent was represented by President’s
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Counsel in the Court of Appeal. According to the journal entries,although notice of the Petitioners’ applications for special leave toappeal had been given by registered post to the 2nd Respondent,he was absent and unrepresented on 28.5.2002. On that day thisCourt directed that notice of the appeals be given to him, and noticewas given by registered post. Nevertheless, he was absent andunrepresented at the hearing of the appeals on 17.3.2003.
STATUTORY PROVISIONS
Each Provincial Council consists of two or more administra-tive districts, and elections are held in respect of each district on thebasis of proportional representation. Such elections can be con-tested by recognised political parties and independent groups. Anysuch party or group may contest one or more districts, by submit-ting a nomination paper in respect of such district (section 13 (1) ofthe Act). Section 9 of the Act provides that no person is qualified tobe elected as a member of a Provincial Council if he is subject toany of the disqualifications specified in section 3 of the ProvincialCouncils Act, No. 42 of 1987. A nomination paper must contain thenames of as many candidates as there are members to be electedfor that district, increased by three (section 13(1)), and the writtenconsent of every candidate must be endorsed on it – if not, it mustbe rejected (section 17(1 )(b) and (d)). The Act makes no provisionfor the substitution of candidates, even upon death or withdrawal(sections 23 and 116). The ballot paper for a district is designed toenable a voter to vote for a particular party or group, and to indicatealso his preference for up to three candidates nominated from thatdistrict by that party or group (section 30). A voter must indicate theparty or group of his choice, and if he does not his vote would beinvalid (section 51). However, he is not obliged to indicate any pref-erence for individual candidates.
The number of candidates elected from each party or groupfrom a district is directly proportional to the number of valid votespolled by the party or group (section 58(1)). The particular candi-dates elected from each party or group are determined accordingto the preferences received by the candidates of that party or group(section 58(1 )(e) and (f)). Thus in a district entitled to ten members,a party receiving 20% of the valid votes polled would be entitled tohave two of its candidates declared elected, and those two would
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be the candidates receiving the highest and second highest num-ber of preferences.
There is one departure from proportionality which has a bear-ing on the decision in these appeals. Section 61 A(2) of the Act pro-vides that the votes cast for each, party or group in the several dis-tricts of the Province shall be aggregated; that the party or groupwhich polled the highest number of votes in the Province shall beentitled to have two more of its candidates declared elected asmembers of the Provincial Council (“bonus seats”); and that theCommissioner shall call upon the secretary or group leader to nom-inate two persons from among the unsuccessful candidates nomi-nated by that party or group for that election – i.e. from among thecandidates nominated for any district in that Province.
The provisions relating to the result of the election, includingthe bonus seats, establish that the only persons who can bedeclared elected immediately after the poll are persons who werecandidates whose names appeared on a nomination paper, on thebasis of which the voters cast their votes and expressed their pref-erences.
The Petitioners relied heavily on section 65(3), to which theCourt of Appeal made no reference. Section 65 provides:
“(1) Where the office of a member of a Provincial Council
becomes vacantthe secretary of the Provincial Council
shall inform the Commissioner of the fact of the occurrenceof such vacancy. The Commissioner shall fill such vacancyin the manner hereinafter provided.
(2) If the office of a member falls vacant due to death, resigna-tion or for any other cause, the Commissioner shall callupon the secretary of the recognized political party or thegroup leader of the independent group to which the membervacating office belonged, to nominate within a period to bespecified by the Commissioner, a person eligible under thisAct for election as a member of that Provincial Council, to fillsuch vacancy. If such secretary or group leader nominateswithin the specified period an eligible person to fill suchvacancy and such nomination is accompanied by an oath oraffirmation [by him in the prescribed form] the
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Commissioner shall declare such person elected. If on theother hand such secretary or group leader fails to make anomination within the specified period, the Commissionershall declare elected as member, from the nomination papersubmitted by that party or group for the administrative dis-trict in respect of which the vacancy occurred, the candidatewho has secured the highest number of preferences at theelection of members to that Provincial Council, next to thelast of the members declared elected to that ProvincialCouncil from that party or group…
Where all the candidates whose names were on such nom-ination paper have been declared elected or where none ofthe candidates whose names remain on such nominationpaper have secured any preferences, or where the membervacating office was not elected from an administrative dis-trict, the Commissioner shall forthwith inform the Presidentwho may, on receipt by him of such information and at anystage when he considers it expedient to do so, by Order….direct the Commissioner to hold an election to fill suchvacancy…”
JUDGMENT OF THE COURT OF APPEAL
The Court of Appeal noted that section 65(2) has two limbs -the first authorizing nomination by the secretary when called uponto do so by the Commissioner, and the second requiring nomina-tion by the Commissioner upon default by the secretary. The firstlimb empowers the nomination of “a person eligible under the Actfor election” (whom the Commissioner must then declare elected),while the second limb requires the Commissioner, upon default, todeclare elected “from the nomination paper submitted by that party”the candidate who had secured the highest number of preferencesnext to the last of the members already declared elected. The Courtobserved that if it had been the intention of Parliament that the sec-retary’s choice should be confined to candidates whose nameswere on the nomination paper, the first limb would have made ref-erence to the nomination paper in the same way as the second limbdid. Parliament had deliberately used different and wider language,manifesting an intention not to restrict the secretary’s choice in that
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way. Likewise, Parliament did not restrict the secretary’s choice topersons who had been eligible at the time of nomination, and it wasnot open to add such a restriction by way of interpretation.
Further the requirement – in the first limb, but not in the sec-ond – of an oath or affirmation by the nominee was significant. TheAct required that the original nomination paper be accompanied byan oath or affirmation by every candidate; accordingly, since theCommissioner’s choice under the second limb was confined to can-didates on the nomination paper, it was unnecessary to insist upona further oath or affirmation; but as the secretary’s choice under thefirst limb extended to persons outside the nomination paper, anoath or affirmation was required.
The Court of Appeal also dealt with the Petitioner’s con-tention that there were two possible interpretations of section 65(2),and that therefore that interpretation should be preferred which wasin harmony with Article 12(1), with the franchise guaranteed byArticle 4(e), with the freedom of expression under Article 14(1)(a),and with the ideals of a democratic system of government by theelected representatives of the people. The Court concluded thatsection 65(2) was clear, plain and unambiguous, and that the Courtcould not “put its own gloss on the plain words of the section tosqueeze out a meaning not borne out by the language of the sec-tion”.
Reference was also made to two other matters. “According toArticle 99(13)(b) of the Constitution when the seat of a Member ofParliament becomes vacant, the candidate from the relevant politi-cal partywho had secured the next highest number of prefer-
ences shall be declared elected", and section 65(2) of the Act wasa deliberate departure from that procedure.“Section 64(5) of the
Parliamentary Elections Act, No. 1 of 1981[as amended by Act,
No. 35 of 1988] provides that when there is a vacancy of a
Member of Parliament, the secretary of the political party to whichthe Member vacating his seat belonged can nominate a person tofill the vacancy…. [there being],…no requirement to nominate suchperson from the list submitted to the Commissioner or from thenomination paper”, and that provisions, like section 65(2), recog-nize “the supremacy given to the party above the individual candi-dates”.
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Unfortunately, the carefully reasoned judgment of the Courtof Appeal made no reference to section 65(3) of the Act and thesubmissions which the Petitioners made in relation to that provi-sion.
INTERPRETATION OF SECTION 65
Section 65(1) directs the Commissioner to fill any vacancy “inthe manner hereinafter provided”, and that confirms that sub-sec-tion (3) cannot be ignored. Mr Marsoof, PC, ASG, on behalf of the1st and 4th Respondents submitted that sub-sections (2) and (3)provide for three alternative methods by which a vacancy could befilled – the first is set out in the first limb of section 65(2), the sec-ond is set out in the second limb, and the third is set out in section65(3); and that these three alternative methods “are set out in asequential and a logical order”. Dr Wickramaratne, PC, on behalf ofthe 3rd Respondent (the secretary of the People’s Alliance), sub-mitted that section 65(3) is applicable only when the secretary hasnot made a nomination under section 65(2). Under section 65(2)the secretary can nominate a person who did not obtain a singlepreference. If the secretary can nominate a person who had beenso decisively rejected by the people, it is futile to argue that a per-son who did not contest cannot be nominated – “such a person has,at least, not been expressly rejected by the people”. He further con-tended that the words “a person eligible under this Act for election”in section 65(2) are wider than, and are not limited to, an unsuc-cessful candidate: “eligibility” refers to section 3 of the ProvincialCouncils Act.
The essence of those submissions is that a vacancy shouldbe filled initially by nomination by the secretary; that the secretarycould nominate any person qualified under the Act; that failing suchnomination, by the Commissioner; and that if the Commissionerwas unable to nominate, then only recourse may be had to section65(3), resulting in a by-election. That interpretation reduces sub-section (3) to a proviso to the second limb of section 65(2) -although it is certainly not drafted as a proviso.
The Act does not make any express provision regarding the“eligibility” of persons for election. Section 9 of the Act provides thata person shall be qualified to be elected, if he is not subject to any
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of the disqualifications specified in section 3 of the ProvincialCouncils Act. If section 65(2) was intended to empower the secre-tary to nominate any person qualified under the Act, or not disqual-ified under the Act, it should have authorized the secretary to nom-inate “any person qualified under the Act”.The Petitioners’ con-tention is that different language was used because a differentresult was intended, and that a person qualified for electionbecomes a person eligible for election only if and when he is dulynominated. However, bn examining the Sinhala text of the Act afterjudgment was reserved, I found that the same Sinhala word is usedin both sections. Accordingly, section 65(2) must be interpreted onthe basis that,'ex facie, it authorizes the secretary to nominate aperson qualified under section 9 at the time of such nomination.
Why, then, did the first limb refer to the nomination of a “per-son eligible” while the second limb referred to a candidate “from thenomination paper”? I think there is good reason for the difference inlanguage. It is obviously desirable that a vacancy be filled by a thenqualified – and not a disqualified – person, for otherwise litigationwould inevitably result. However, the Commissioner has no meansof knowing (and cannot reasonably be expected to launch aninquiry into the question) whether a candidate on the nominationpaper had subsequently become subject to a disqualification.Accordingly, the second limb requires the Commissioner to go bythe nomination paper alone. It is not reasonable, however, to allowthe same leeway to the secretary who would know, or could quiteeasily ascertain, whether his candidates are no longer qualified.The burden of verifying eligibility is therefore cast on him alone. Itis probably for that reason that section 65(2) permits the secretaryto nominate only a “person eligible.
Furthermore, if a “person eligible” is held to include a candi-date whose name was not on the original nomination paper, thatwould allow the secretary to nominate even a person who had notgiven his consent to such nomination, and the Commissioner wouldnevertheless be obliged to declare him elected. As a matter of prin-ciple, a statutory provision should not generally be interpreted asrequiring a person to be declared elected to an office without hisprior consent. However, if the first limb is restrictively interpreted toinclude only candidates, their written consent and signatures will be
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found on the original nomination paper. There is thus some basisfor the contention that the secretary’s power of nomination isrestricted to qualified candidates from the original nomination paperwhose consent had been expressed therein.
On the other hand, the first limb requires the secretary tosubmit an oath or affirmation from his nominee. That is superfluousif his choice is restricted to persons on the original nominationpaper. That is a circumstance which supports the Respondents’contention that the secretary can nominate any qualified person.Undoubtedly, section 65(2) is not without ambiguity.
It is therefore necessary to examine section 65 as a whole inthe context of the entire Act. The Respondents contended that sec-tion 65(3) applies only if the secretary fails to nominate. However,scrutiny of section 65(3) reveals that it imposes an imperative dutyon the Commissioner “ forthwith to inform the President in three sit-uations –
Where all the candidates whose names were on the (origi-nal) nomination paper have been declared elected, or
Where none of the candidates whose names remain onsuch nomination paper have secured any preferences, or
Where the member vacating office was not elected from adistrict.
The third situation needs some clarification: the only mem-bers “not elected from a district” would be the two candidatesdeclared elected to bonus seats.
The correctness of the Respondents’ interpretation can bestbe tested by reference to those three situation. In any of those sit-uations, what is the Commissioner’s duty? Should he follow the“sequential and logical order”, and first call upon the secretary tonominate a person? Or should he forthwith inform the President?Although sub-section (2) and sub-section (3) appear to create irrec-oncilable contemporaneous obligations – to call upon the secretaryto nominate a successor, and also to forthwith inform the President,who may or may not decide to order a by-election – that conflict canbe resolved without much difficulty.
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The first limb is a general provision seemingly applicable toall vacancies, while section 65(3) is a special provision applicableto vacancies in three specific situations. First, as a rule, a specialprovision prevails over a general provision (which will, to thatextent, be reduced in scope). Second, the Commissioner is facedwith a choice between calling upon the secretary and forthwithinforming the President. “Forthwith” generally means “at once”,“without delay”, or “immediately”, and in the present context it can-not possibly mean, “if the secretary, upon being called upon to doso, fails to make a nomination”. The word “forthwith” is thus astrong indication that sub-section (3) takes precedence over sub-section (2). Third, section 65 must be given an interpretation, if rea-sonably possible, which gives meaning and effect to every part,rather an interpretation which renders one sub-section nugatory. Tohold that the Commissioner must first act under sub-section (2)would mean that even in any of the three given situations the sec-retary could nominate a successor before the President isinformed; and that would make sub-section (3) wholly inoperative -because it would be futile thereafter to inform the President, as bythen he would be unable to exercise the discretionary power toorder a by-election.
I therefore hold that sub-section (3) takes precedence oversub-section (2), and that the three methods of filling vacancies arenot sequential. Where any of the three situations referred to in sub-section (3) arise, the Commissioner must inform the President,“whomay …at any stage when he considers it expedient to do so” orderthe holding of a by-election. There is no provision that the Presidentmust act within a specified time, or that if the President does notorder a by-election, the Commissioner shall call upon the secretaryto nominate a successor. Thus the President may decide to waituntil several vacancies have occurred before ordering a by-elec-tion.This provision ensures that vacancies will be filled, if at all, bypersons elected by the people.
I have now to consider the case of a vacancy arising at a timewhen there is on the relevant nomination paper the name of at leastone candidate who has secured some preferences (whom I willrefer to hereafter as a “qualified candidate”). It is clear that sub-sec-tion (3) would not apply, and that the Commissioner must call upon
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the secretary to nominate. In the light of the provisions of sub-sec-tion (3), does the first limb of sub-section (2) empower the secre-tary to nominate a person from outside the nomination paper (“anoutsider”)?
If he can nominate an outsider, an anomaly immediately aris-es. Where there is no qualified candidate remaining on the nomi-nation paper, sub-section (3) applies, and there is no possibility ofan outsider being nominated; and the vacancy will be filled, if at all,by a person elected by the people. If so, where there is a qualifiedcandidate it would be illogical and inconsistent for an outsider to benominated. Can such an anomaly be justified on the basis of “thesupremacy of the party” (or its secretary) over members and can-didates? In my view it cannot, for this is not a domestic questionpertaining to the party, party discipline, and/or party officials, mem-bers and candidates. What is involved is the right of the electorateto be represented by persons who have faced the voters andobtained their support, and that in my view is the general schemeof the Act. That is wholly consistent with Article 25 of theInternational Covenant on Economic, Social and Cultural Rights,which recognizes that every citizen shall have the right and theopportunity to take part in the conduct of public affairs, directly orthrough freely chosen representatives.
In reply to the submissions of both learned Counsel for thePetitioners that section 65 should be interpreted in consonancewith democratic ideals, constitutional norms and the overriding prin-ciples of representative democracy, Dr Wickramaratne submittedthat some of the constitutional norms, prevalent at the time the Actwas enacted, were undemocratic and unprincipled: thus Article 99(prior to its amendment in 1988) provided for the nomination paperof a political party, contesting a Parliamentary election, to have thenames of candidates arranged in order of priority as determined bythe secretary, thus denying the voter any choice as between candi-dates; even after its amendment, Article 99 continues to treat theparty as supreme, and a voter cannot vote for one party and markpreferences for candidates of another; Article 99A provides for 29seats to be filled from the “National List”, but a candidate rejectedby the people at that election may nevertheless be nominated atthe very outset although his name was not on that list; and to fill a
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subsequent vacancy, the secretary could nominate a person whohad not even contested that election. He contended that “in view ofthe constitutional provisions relating to elections to Parliamentthere is nothing unusual about the P.C. Elections Act”.
When constitutional or statutory provisions have to be inter-preted, and it is found that there are two possible interpretations, aCourt is not justified in adopting that interpretation which has unde-mocratic consequences in preference to an alternative more con-sistent with democratic principles, simply because there are otherprovisions, whether in the Constitution or in another statute, whichappear to be undemocratic. Indeed, in the three previous decisionsrelating to the Uva Provincial Council election, this Court upheld theeffective exercise of the right to vote at a fair election. In the firstdecision, this Court held in favour of the contention that the electionshould be held, rather than postponed; in the secpnd, that thereshould be no statutory interference with the Commissioner’s powerto fix the date of election and with the contents of nominationpapers already accepted; and finally, that the date of the electionshould be fixed so as to facilitate, rather than hinder, the exerciseof the right to vote. Now that that election has been held, I do notthink that this Court should – in the absence of plain and compellinglanguage – stray into a different path, by preferring an interpreta-tion which allows the expressed wishes of the electorate at thatelection to be superseded. The Judiciary is part of the “State”, andas such is pledged to play its part in establishing a democraticsocialist society, the objectives of which include the full realizationof the fundamental rights and freedoms of all people; and it is man-dated to strengthen and broaden the democratic structure of gov-ernment [see Articles 27(2)(a) and 27(4) read with Article 4(d).]
To sum up, section 65(2) is not plain and unambiguous; sec-tion 65(3) takes precedence over section 65(2); section 63(3) man-ifests a legislative intention that vacancies should be filled either byqualified candidates or by election; if section 65(2) is interpreted tomean that the secretary may nominate any person who is qualifiedat the time of such nomination, that gives rise to an anomaly orinconsistency; the general scheme of the Act, from nomination upto the declaration of the result of the poll is that the electorateshould be represented by persons who have contested the elec-tion; the fact that the nomination paper is required to have three
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candidates more than the number of members to be elected andcannot be altered indicates that the nomination paper is the poolfrom which subsequent vacancies should be filled. Accordingly, thewide language of the first limb of section 65(2) must be restrictive-ly interpreted, in the context of section 65(3) as well as the gener-al scheme of the Act and basic democratic principles. I hold that,despite the general words used, the secretary’s power to nominateis confined to candidates whose names appeared in the originalnomination paper and who secured some preferences at the elec-tion.
FUTILITY
At the commencement of the hearing both learnedPresident’s Counsel for the Respondents submitted that the 2ndRespondent had ceased to hold office as Chief Minister and that itwould be futile to hear and determine the appeals. Both learnedCounsel for the Petitioners contended that the 2nd Respondenthad ceased to hold office even prior to the grant of special leave toappeal, but that no objection was taken at that stage; and that spe-cial leave to appeal had been granted on a matter of great publicimportance. If the objection of futility is now upheld, the Court ofAppeal judgement will be regarded as authoritative and binding, inrespect of all future vacancies in any Provincial Council, and theCommissioner would be bound to act on the basis of that judgment,thereby giving rise to fresh litigation.
In this case we are not faced with a situation in which theimpugned decision or declaration had ceased to be operativebefore the litigation commenced (as in Punchi Singho v Perera,) orwhere an order for relief might be futile because the official to whomit was directed had lawful authority to revoke it (as in Ramaswamyv Moregoda). On the contrary, it is the law’s delays which havegiven rise to the objection of futility. In Sundarkaran v Bharathi, thepetitioner prayed for certiorari to quash the refusal to issue him aliquor licence for 1987 and for mandamus to grant him that licence.In September 1987 the Court of Appeal dismissed the application.In November 1988 – long after the end of the relevant year – thisCourt set aside the judgment of the Court of Appeal, quashed thedecisions of the respondents, and ordered that the Respondents
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should make due inquiry upon its merits in regard to any futureapplication which the Petitioner might make for a liqour licence.Amerasinghe, J, observed that the Court would not be acting invain, and that quashing the decision not to issue him a licence for1987 and requiring that he be fully and fairly heard before a deci-sion is arrived at with regard to any future application would not bea useless formality.
I hold that the Court of Appeal erred in law in its interpreta-tion of section 65, and that this Court would not be acting in vain insetting aside the judgment of the Court of Appeal, as it is in the pub-lic interest that the Commissioner, political parties, independentgroups, candidates and voters should know with certainty the pro-cedure for the filling of vacancies in Provincial Councils.
ORDER
I allow the appeals, set aside the judgments of the Court ofAppeal, and grant certiorari to quash the Commissioners’ declara-tion dated 24.5.99 that the 2nd Respondent was elected a memberof the Uva Provincial Council. The parties will bear their own costs.
GUNASEKERA, J. -I agree
WIGNESWARAN, J. -I agree
Appeal allowed.