DHARMADASA GOMES v. COMMISSIONER OF ELECTIONS AND ANOTHER

027-SLLR-SLLR-2001-V-3-DHARMADASA-GOMES-v.-COMMISSIONER-OF-ELECTIONS-AND-ANOTHER.pdf


DHARMADASA GOMESv.
COMMISSIONER OF ELECTIONS AND ANOTHER
.COURT OF APPEALDE SILVA, J. (P/CA)
AMARATUNGA, J.
C.A. 1045/2001JULY 31™, 2000
Writ of Prohibition – Commissioner of Elections – Referendum Act 7 oj1982 -S. 2- Constitution – Articles 82, 83, 85, 86, and 140 – InterpretationOrdinance S. 24. S. 24(1), S. 24(2) ■ Holding of a Referendum – Can theCommissioner of Elections consider its validity? Applicability of S. 24on State Officers.
The petitioner sought a Writ of prohibition preventing the Commissionerof Elections from holding a Referendum directed to be held by aProclamation issued by the President in terms of Section 2.
It was contended that the President has no power to issue a Proclamationand the Commissioner of Elections has a discretion not to carry out thedirections given by the President, as such directions are illegal.
Held :
The Commissioner has no judicial power to consider the validity ofthe acts of the Hon. President in calling for Referendum or Election.
Where public officers are acting in their official capacity. Section 24of the Interpretation Ordinance, would apply and no injunction wouldlie in the circumstances.
Per J. A. N. de Silva, P/CA.
“If the relief prayed for is granted it would amount to an injunctionagainst the State, as the President under whose direction theCommissioner of Elections is to hold the Referendum, is the Head ofState.
The Commissioner of Elections being a Public Officer is covered bySection 24.
APPLICATION under Article 143 and 14( 1) of the Constitution.
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Cases referred to :
1. Samaraweera and another v. Sunpower Systems (put)Lld and an-other – 1996 – 1 SLR 246.
Petitioner in person.
Saleem MarsooJ, P.C., A. S. G.. with State Counsel Rajiv Coonetilake forAttorney – General.
Cur. adu. unit.
August 02, 2001.
J. A. N. DE SILVA, J. (P/CA)
This is an application for a writ of Prohibition preventingthe Is1 respondent the Commissioner of Elections from holdinga Referendum directed to be held by the Proclamation dated10. 07. 2001 issued by the President in terms of Section 2 ofthe Referendum Act No 7 of 1982. The petitioner PattiyagcDharmadasa Gomes, who is an Attorney-at-law has not usedthe words "Writ of Prohibition" in paragraph (C) of the prayer tohis petition. That paragraph merely prays to "prohibit" theholding of the Referendum. The caption of his petition refersto Article 140 of the Constitution. Since the said Article refersto a Writ of Prohibition we proceed on the basis that he hassought by his petition a Writ of Prohibition.
When this application came up for support on
07. 2001, this Court, without formally issuing notice asprayed for in prayer (a) of the petitioner's application, hasdirected the Hon. Attorney General to appear in this Court toassist the Court and adjourned further hearing for 25. 07. 2001.
When the hearing resumed on 25. 07. 2001, in deferenceto the request made by this Court. Mr. Saleem Marsoof,President's Counsel. Additional Solicitor General with a StateCounsel appeared in this Court to assist Court.
However before we consider the submissions of thepetitioner I would like to advert to the pleadings. For thispurpose I reproduce below verbatim paragraph 10 of thepetitioners application.
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(10) "The petitioner humbly states that Article 85 is veryClear as to what are the types of bills that be placed beforethe people. The President ordered under Article 86 to hold aReferendum on a matter of National Importance. But orderinga Referendum under Article 86 has to be ordered subject toArticle 85. Where Article 85 is very clear as to what type ofbills that can be placed before the people. According to Article85 no bill which touches the Constitution cannot be placedbefore the people.
Theframers of this Constitution has specifically mentionedin Article 85 there cannot be any change in the Constitutionor calling the people for a new Constitution as the framershave included very clear Articles namely Article 82 and 83 tochange, to amend, to add or to introduce a new Constitution,replace this Constitution with a new Constitution."
From the paragraph quoted above it is difficult to gatherthe exact proposition put forward by the petitioner in hispetition, However in his oral submissions before this Court thepetitioner submitted that in terms of Article 86 the Presidents'power to submit any matter of National Importance to the peopleby referendum is limited by the words used in Article 85 of theConstitution.
It is relevant to note that the petitioner has prayed for thefollowing reliefs in his petition.
To issue notice on the respondents.
To grant Interim relief by issuing an Injunction on the 1strespondent taking any steps to hold a Referendum untilthe determination of the petition. If the Is' respondent isallowed to carry out an illegal order will result anirremediable mischief which might cost millions of publicfunds.
To prohibit the 1st respondent holding the Referendumwhich had been ordered by the President of Sri Lankawho has no Constitutional right to order an Referendumfor a new Constitution.
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To order the 1st respondent not to carry out anyunconstitutional and illegal orders by any personincluding the President oj Sri Lanka.
Costs.
Such other and further relief as to your Lordships Courtshall seem meet.
It is also pertinent to note that the petitioner has notprayed to quash the Proclamation of the President directingthe Commissioner of Elections to have a Referendum. In thesecircumstances it is redundant to examine the power of theHon. President to issue a Proclamation and to have aReferendum. The main contention of the petitioner was thatthe President has no power to issue a Proclamation and theCommissioner of Elections has a discretion not to carry out thedirections given by the President as such directions are illegal.We are not in agreement with this proposition. We hold that theCommissioner of Elections has no judicial power to considerthe validity of the acts of the Hon. President in calling forReferendum or Elections.
We are also mindful of the fact that Section 24 of theInterpretation Ordinance has placed limitations on Court withregard to the issuing of injunctions on State Officers.
Section 24( 1) of the Interpretation Ordinance precludes anyCourt from granting injunctions against the State, a Ministeror Deputy Minister upon any ground whatsoever. Furthermore,by Section 24(2), a Court is even precluded from granting aninjunction against a public officer if the effect of so doing wouldamount to directly or indirectly restrain the State.
Section 24 mentioned above read as follows.
"(1) Nothing in any enactment, whether passed before or afterthe commencement of this Ordinance, shall be deemed toconfer upon any Court jurisdiction to grant injunctions or
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to make orders for specific performance against the State,a Minister or Deputy Minister, upon any ground whatsoever.
No Court shall upon any ground whatsoever grant anyinjunction or make any order against a public officer, if theeffect of the granting of such injunction or the making ofsuch order would be, whether directly or indirectly, torestrain the State, a Minister or a Deputy Minister fromproceeding with, or to compel the performance by the State,a Minister or a Deputy Minister of, any matter or thing.
Where before the coming into operation of the section, anyinjunction has been granted by any Court, which injunctionsuch Court would not have had the jurisdiction to grant ifthis section had then been in operation, such injunctionshall for all purpose be deemed to have been and to be nulland void and no force or effect in law.
In this section, "injunction" includes a permanent or interiminjunction, whether ex parte or otherwise, an enjoining order,or any other order having the effect of staying or restrainingany person or authority referred to in the precedingsubsections.
The preceding provisions of this section shall not be deemedto affect the power of any Court to make an order declaratoryof the rights of parties.
The provisions of this section shall have effectnotwithstanding section 6 or any other provisions of thisOrdinance or the provisions of any other law."
The decision in Samaraweera and Another v. SunpowerSystems (Pvt.) Ltd. and Another has a direct bearing on thisissue. It was held in that case, inter alia that where public officersare acting in their official capacity, section 24 of the InterpretationOrdinance would apply and no injunction would lie in thecircumstances.
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It is observed that if the relief prayed for in this applicationsis granted, it would amount to an injunction against the State,as the President under whose direction the Commissioner ofElections is to hold the Referendum, is the Head of State.
The Commissioner of Elections being a public officer iscovered by Section 24 of the Interpretation Ordinance. Thereforethis Court cannot grant any of the reliefs prayed for by thepetitioner. In the circumstances this application is dismissedhowever without costs.
Application dismissed.