GAMAGE vs. PERERA

045-SLLR-SLLR-2006-V-3-GAMAGE-vs.-PERERA.pdf


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GAMAGEVS.PERERASUPREME COURT.
BANDARANAYAKE J.,
DISSANAYAKE J.,
FERNANDO J.,
SC 16/2002.
OCTOBER 14. 2004,
NOVEMBER 1,2004,
AUGUST 18, 2005.
Section 12 (8) Provincial Councils Act- Section 12 (2) – Rules of Procedureof Provincial Council.- Judicial Review of proceedings of Council-Constitutional validity of any Act of Parliament- Can it be called in question?- Amenable to writ jurisdiction? – Constitution Article 80 (23) – Article 140-
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Gamage Vs Perera
(Dr. Shiranl Bandaranayake J.)
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Ouster clause- Writ jurisdiction of the Superior Courts-Announcing of resultsof an election- No review of proceedings?
The Court of Appeal issued a mandate in the nature of a writ ofcertiorari directing the 2nd respondent-appellant to announce the resultof the election of the petitioner-respondent to the post of Chairman of theCouncil. The Court also granted a mandate in the nature of a writ ofprohibition against the appellant from conducting or taking any action tohold an election in respect of the post of Chairman of the Council.
It was contended in appeal that the Court of Appeal erred in notconsidering that a Provincial Council is a legislative body and as such thewrits prayed for would not lie to review the action of the appellant whichforms a part of the proceedings of the Provincial Council.
HELD per Dr. Shiranl Bandaranayake J.
" In terms of Article 80 (3), the constitutional validity of any provisionof an Act of Parliament cannot be called in question after the certificate ofthe President or the Speaker is given. Such a law cannot be challenged onany grounds whatsoever even if it conflicts under the provisions of theConstitution even if it is not competent for Parliament to enact it by a singlemajority or two thirds majority.”
(1) In the instant case what the Court of Appeal had considered is notto question the validity of Section 12 (2) of the Provincial CouncilsAct, but to decide whether in view of the provisions of Section 12(2), the Court of Appeal is precluded from examining theperformance of the duties of the 2nd respondent in accordancewith Rule 5 (6) of the Rules of Procedure of the Provincial Council.
Per Dr. Shirani Bandaranayake J.
“The question before the Court of Appeal was not with regard toreviewing of any proceedings of the respondent Provincial Council in itslegislative process but the conduct of the appellant at the proceedings,held on 19.12.2002 of the Council where the election was held to selectits Chairman’ .
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Per Dr. Shirani Bandaranayake J.
“In terms of Rule 5 (6) it was the duty of the appellant to announcethe result of the said election. When he failed to announce the said resultsof the election declaring the 1st respondent as the Chairman of the 2ndrespondent Council and proceeded to record and announce that theelection of the Chairman was not concluded and scheduled anotherelection for 8.1.2001 the appellant had acted arbitrarily and maliciously".
HELD FURTHER:
( 2) The Court of Appeal was correct when it held that its jurisdictionunder Article 140 remains intact and unfettered on the face of the preclusiveclause contained in Section12 (2) of the Provincial Councils Act.
APPEAL from a judgment of the Court of Appeal.
Cases referred to :
Atapattu vs. People’s Bank 1997 1 Sri LR 221
Sirisena Cooray vs. Tissa Dias Bandaranayake 1999 I Sri LR 1
Wijayapala Mendis vs. P.R.P. Perera 1999 2 Sri LR 110
In re the Thirteenth Amendment to the Constitution
R vs. Secretary of State for the Environment exparteNottinghamshire County Council 1986 AC 240
Anisminic Ltd. vs. Foreign Corporative Commission 1962 2 Al 147
Pearlman vs. Keepers and Governors of Harrow School 1979 QB56
Re Racai Commodities Ltd. 1980 23 WLR 181
Dr. Jayampathy Wickremaratne PC with Cyrene Siriwardhene for appellant.Manohara de Silva for respondents.
November 30, 2005
DR. SHIRANI BANDARANAYAKE, J.
This is an appeal from the judgment of the Court of Appeal dated
By that judgment the Court of Appeal issued a mandate inthe nature of a writ of mandamus directing the 2nd respondent-appellant
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(Of- Shirani Bandaranayake J. )
(hereinafter referred to as the appellant) to announce the result of theelection of the petitioner-respondent (hereinafter referred to as the 1 strespondent) to the post of Chairman of the 1st respondent -respondentCouncil (hereinafter referred to as the respondent Provincial Council).The Court of Appeal also granted and issued a mandate in the natureof a writ of prohibition against the appellant or his successor in officefrom conducting and/or taking any action to hold an election in respectof the post of Chairman of the respondent Council. The Court of Appealalso cast the appellant in costs in a sum of Rs. 10,000/- consideringthe manner in which he had acted and directed the said sum to bepaid personally by the appellant to the 1st respondent. The appellantappealed against the said judgment of the Court of Appeal on whichthis Court granted Special Leave to Appeal.
The facts of this appeal, albeit brief are as follows:
The 1st respondent, who was a member of the respondentProvincial Council, filed an application in the Court of Appeal seekingwrits of mandamus and prohibition against the appellant. The 1strespondent in his application had stated that, on 19.12.2000 an electionwas held to fill the vacancy in the post of Chairman in the respondentProvincial Council. The names of the 1s* respondent and 3rd respondent-respondent (hereinafter referred to as the 3rd respondent) were proposedand seconded. At the election held on the same date the 1 st respondentand the 3rd respondent received 42 votes each. There being an equalityof votes, the appellant who was the Secretary of the respondent ProvincialCouncil, proceeded to conduct an election once again in terms of Rule5(a) of the Rules of Procedure and at the conclusion of the countingrecorded the votes cast in the following manner:
1 * respondent43 votes
3rd respondent40 votes
Abstained14 votes
Total97 votes
The 1st respondent further stated that the appellant having recordedthe votes obtained by the candidates failed to announce the results ofthe election declaring the 1st respondent as the Chairman of therespondent Provincial Council as required by Rule 5(6). The 1st
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respondent sought a writ of mandamus directing the appellant toannounce the results of the election of the 1st respondent to the postof Chairman of the respondent Provincial Council in accordance withthe aforesaid Rule 5(6). He also prayed for a writ of prohibition againstthe appellant from conducting and/or taking any action to hold anotherelection in respect of the post of Chairman.
As stated earlier the Court of Appeal issued the writ of mandamusand prohibition as prayed by the 1st respondent.
Both Counsel agreed that the only question that has to beexamined would be as follows:
“Did the Court of Appeal err in not considering that a ProvincialCouncil is a legislative body and as such the writs prayed would notlie to review the action of the appellant which forms a part of theproceedings of the Provincial Council”.
Learned President’s Counsel for the appellant submitted that theCourt of Appeal had relied on the decisions in Atapattu v Peoples Bank™Sirlsena Cooray v Tissa Dias Bandaranayake(Z) and Wijeyapala Mendisv P R. P Perera(3> and had made a grave error in following the saiddecisions. The contention of the learned President’s Counsel was thatthe dictum in the aforementioned decisions that the jurisdiction whichthe Supreme Court exercises under Article 140 is unfettered, cannotbe accepted. It was further contended that Section 12(2) of the Provincial.Councils Act contains a preclusive clause, which prevents the Court ofAppeal from issuing a writ against the appellant.
Section 12(2) of the Provincial Councils Act deals with the preclusiveclause and reads as follows:
“No officer or member of a Provincial Council in whom powers arevested, by or under this Act, for regulating the procedure, or the conductof business, or for maintaining order, in such Council shall be subjectto the jurisdiction of any court in respect of the exercise by him of thosepowers"
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The question at issue therefore is that in terms of theaforementioned Section 12(2) of the Provincial Councils Act, whetherthe Court of Appeal was prevented from issuing the writs of mandamusand prohibition. If the answer to the aforesaid question is in theaffirmative, the next Question that would arise would be whether a graveerror was made in the decisions referred to in the judgment of the Courtof Appeal, viz., Atapattu v People s Bank (Supra), Sirisena Cooray vTissa Dias Bandaranayake (Supra) and Wijayapala Mendis v P.R.PPerera (Supra) as well as by the Court of Appeal in its own decision,The contention of the learned President’s Counsel for the appellant isthat the validity of Section 12 of the Provincial Councils Act, as thevalidity of the proceedings of the 1st respondent Council held on19.12.2000, cannot be questioned in terms of Article 80(3) of theConstitution and on the basis of the preclusive clause embodied inSection 12(2) of the Provincial Councils Act.
Article 80(3) of the Constitution refers to a Bill becoming law andreads as follows:
“Where a Bill becomes law upon the certificate of the Presidentor the Speaker, as the case may be, being endorsed thereon, no Courtor tribunal shall inquire into, pronounce upon or in any manner call inquestion, the validity of such Act on any ground whatsoever”
The aforesaid Article thus had clearly stated that in terms of thatArticle, the constitutional validity of any provision of an Act of Parliamentcannot be called in question after the certificate of the President or theSpeaker is given. Reference'was made to the provisions in Article 80(3)of the Constitution and its applicability by Sharvananda, J. in re theThirteenth Amendment to the Constitution (4) and had expressed hisLordship’s views in the following terms:
“Such a law cannot be challenged on any ground whatsoever evenif it conflicts with the provisions of the Constitution, even if it is notcompetent for Parliament to enact it by a simple majority or two thirdmajority.”
Whilst agreeing with the views expressed by Sharvananda, CJ, inre The Thirteenth Amendment to the Constitution, regarding the scopeof Article 80(3) of the Constitution, it is to be borne in mind that the
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question which arises in this appeal is not connected to the applicabilityof the said Article. The appellant’s contention is that, the Court of Appealhad questioned the validity of Section 12 of the Provincial Councils Actand in terms" of Article 80(3) of the Constitution that the Court of Appealcould not have questioned such validity of the said provision. However,what the Court of Appeal had considered is not to question the validityof Section 12(2) of the Provincial Councils Act, but to decide whetherin view of the provisions of Section 12(2), the Court of Appeal is precludedfrom examining the performance of the duties of the 2nd respondent, inaccordance with Rule 5(6) of the Rules of Procedure of the respondentProvincial Council.
Section 12(2) of the Provincial Councils Act states that no officeror member of a Provincial Council shall be subject to the jurisdiction ofany Court in respect of his exercise of the powers which were vestedunder the Act, for regulating the procedure, or the conduct of businessor for maintaining order in such Council. This Section, prima facie, thusprecludes the intervention by any Court to examine the exercise of powersof the officers or members of a Provincial Council.
The applicability of a preclusive clause was discussed in detailby Dheeraratne, J, in Sirisena Cooray v Tissa Dias Bandaranayake(Supra). In that case Court examined several preclusive clausescontained in Special Presidential Commissions of Inquiry law, No. 7 of1978, as amended, either ousting or partially ousting writ jurisdiction.After considering those clauses as well as the decisions which hadexamined the applicability of the preclusive clauses, it was held thatthe jurisdiction conferred on this Court by Article 140 is unfettered. Ina later decision (Wijeyapala Mendis v PR.P Perera and others [supra]),Fernando, J, endorsed the views expressed by Dheeraratne, J., inSirisena Cooray case (supra). Considering the provisions in the SpecialPresidential Commission of Inquiry Law, Fernando, J, stated that, –
“I respectfully agree with Dheeraratne, J., that the jurisdictionwhich this Court exercises under Article 140 is unfettered(Cooray v Bandaranayake).”
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Learned President’s Counsel for the appellant contended that inCooray v Bandaranayake (supra) when the Court held that the preclusiveclause inserted by Section 18(A)1 must be read subject to Article 140,it did what was prohibited by the Constitution, namely judicial review oflegislation.
However, it is to be borne in mind that in Cooray v Bandaranayake(supra), the 1st and 2nd respondents inter alia had raised objectionsthat the writ jurisdiction of the Superior Court had been ousted bypreclusive clauses contained in the Special Presidential Commissionsof Inquiry law and the Interpretation Ordinance. Considering thoseobjections, this Court had held that the writ jurisdiction of the SuperiorCourts is conferred by Article 140 of the Constitution and it cannot berestricted by the provisions of ordinary legislation contained in the ousterclauses enacted in Sections 9(2) and 18A of the Special PresidentialCommission of Inquiry Law or Section 22 of the Interpretation Ordinance.The Court therefore held that its jurisdiction is unfettered.
Learned President’s Counsel for the appellant further contendedthat granting power to Courts with unlimited judicial review is althougha welcome move, the Courts must necessarily function within the limitsset down by the Constitution and the Law. Learned President’s Counselrelied on the dictum of Lord Scarman in R v Secretary of State for theEnvironment ex parte Nottinghamshire County Council<5> where it wasstated that,
“Judicial review is a great weapon in the hands of the judges, butthe judges must observe the constitutional limits set by our parliamentarysystem upon their exercise of this beneficient power.”
However, it is to be noted that referring to the aforementioned,Professor Wade has commented that it is only the criterion ofreasonableness that is restricted by this doctrine and also only in specialsituations dominated by questions of political judgment. He further clarifiesthe position and states that, (Administrative Law, 9th Edition, pg. 380)
‘The normal rule is that parliamentary approval does not affect theoperation of judicial review, whether for unreasonableness or otherwise.
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For this the decisions on delegated legislation, which is frequentlyapproved by Parliament, afford ample illustration.’
Judicial review is for the purpose of challenging the legality of theaction or inaction of a public authority. Such review is the gateway to aremedy for the grievance complained of by the aggrieved party and Actsof Parliament makes provision from time to time to restrict or at certaintimes to eliminate such judicial review such as Section 12(2) of theProvincial Councils Act, which is presently in question.
The approach of the Courts, with regard to the applicability of ousterclauses could be clearly seen in the leading case of Anisminic Ltd. vForeign Compensation Commissionwhere the words of ‘shall not becalled in question in any Court of law’ contained in the ForeignCompensation Act of 1950 came under scrutiny and the House of Lordsheld that the ouster clause did not protect a determination which wasoutside jurisdiction. This fresh approach was expanded by the decisionsin Pearlman v Keepers and Governors of Harrow School(7) and ReRacai Communications Ltd.<8>
Considering the aftermath of the decision in Anisminic (Supra),Prof. Wade has succinctly expressed wider consideration given to theapplicability of ouster clauses in the following words:
The Anisminic case and its sequels were the culmination of thejudicial insistence, so often emphasized in this work, that administrativeagencies and tribunals must at all costs be prevented from being solejudges of the validity of their own acts. If this were allowed, to quoteDenning L J. again, ‘the rule of law would be at an end’ (emphasisadded)’
In fact in Anisminic (supra) Lord Wilberforce expressed a similarview in different words. According to Lord Wilberforce,
“What would be the purpose of defining by statute the limit of atribunal’s powers if, by means of a clause inserted in the instrument ofdefinition, those limits could safely be passed?”
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It is thus clear that the Court of Appeal was correct when it heldthat, its jurisdiction under Article 140 remains intact and unfettered onthe face of the preclusive clause contained in Section 12(2) of theProvincial Councils Act.
The next question that has to be examined would be whether awrit would lie against the Provincial Council which is a legislative body.Learned President’s Counsel for the appellant contended that theProvincial Councils are legislative bodies and that-therefore the questionin issue, being an internal matter of the Provincial Council, it cannotbe subject to Administrative Law. It is to be borne in mind that the Courtof Appeal had taken the view that the Provincial Councils are legislativebodies. However, the question before the Court of Appeal was not withregard to reviewing the validity of any proceeding of the respondentProvincial Council in its legislative process, but the conduct of theappellant at the proceedings held on 19.12.2002 of the respondentProvincial Council where an election was held to select their Chairman.
The 1st respondent’s complaint was that after the election, wasconducted in which he had obtained 43 votes, the appellant failed toannounce the result of the election declaring the 1st respondent as theChairman of the Council as required by Rule 5(6). The said Rule readsas follows:
“At the conclusion of counting, the name of the member who hasobtained the highest number of votes shall be written and the numberof votes shall be indicated against the name. The name of the memberor names of members who have obtained the next highest number ofvotes shall be indicated with the respective amount of votes polledagainst their names and the result shall be marked in descending orderand the result shall be announced.”
Therefore in terms of Rule 5(6) it was the duty of the appellant toannounce the result of the said election. When he failed to announcethe said results of the election declaring the 1 st respondent as theChairman of the 2nd Respondent Council and proceeded to record and
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announce that the election of the Chairman of the 1 st respondent Councilwas not concluded and scheduled another election to be held on 08.01.2001, the appellant had acted arbitrarily and maliciously. Therefore the1st respondent had come before the Court of Appeal challenging theconduct of the appellant in proceedings held on 19.12.2000 of therespondent Provincial Council for the election of a Chairman and notthe validity of any of the proceedings of the respondent Provincial Council.In such circumstances the submissions of learned President's Counselfor the appellant that the proceedings of the Provincial Council cannotbe subjected to Administrative Law does not arise in this appeal.
For the reasons aforesaid, I answer the question in this appeal inthe negative.
This appeal is accordingly dismissed and the judgment of the Courtof Appeal dated 22.02.2002 is affirmed.
I make no order as to costs in these proceedings in this Court.
DISSANAYAKE, J. — / agree.
RAJA FERNANDO, J. — / agree.
Appeal dismissed.