GAMINI ATUKORALE V DAYANANDA DISSANAYAKE, COMMISSIONER OF ELECTIONS AND O

031-SLLR-SLLR-1998-V-3-GAMINI-ATUKORALE-V-DAYANANDA-DISSANAYAKE-COMMISSIONER-OF-ELECTIONS-AND-O.pdf


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GAMINI ATUKORALE
v.DAYANANDA DISSANAYAKE,
COMMISSIONER OF ELECTIONS AND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJ.,
WIJETUNGA, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 175/97C.A. APPLICATION NO. 259/97SEPTEMBER 17, 18, 21, 1998
Writs of Certiorari and Mandamus – Grounds for invalidating the result of electionto a Municipal Council – Local Authorities Elections Ordinance – Section 69 -Failure to comply with the provisions of the Ordinance.
At the election of members to the Negombo Municipal Council held on 02.03.1997People's Alliance obtained a majority of 534 votes over the United National Party.It was common ground that at least at 10 of the 45 polling stations, during thepoll, gangs of person broke in, drove the UNP polling agents out, seized ballotpaper books from the officers, perforated and marked ballot papers and insertedthem into the ballot boxes. However, at the counting, the ballot papers so introducedwere identified with reference to the serial numbers and excluded from the counting.The appellant sought writs of certiorari and mandamus, relying on section 69 ofthe Local Authorities Elections Ordinance, for invalidation of the result of the saidelection and for an order to hold a fresh election, on the ground that by reasonof the alleged incidents the ejection was not conducted in accordance with theprovisions of the Ordinance and with the principles laid down in such provisionsand the result of the election was thereby affected.
Held:
That the acts complained of by the petitioner form no part of the conduct of theelection. They were the acts of third parties who had no legitimate role to playin the conduct of the impugned election. The petitioner, therefore, cannot succeedon the ground that there had been a failure to comply with the relevant provisionsof the Ordinance; and the evidence adduced was insufficient to determine thatthe incidents complained of did affect the result of the election.
Held further, that the declaration of the result by the Returning Officer in termsof s. 65 of the Ordinance is not a ‘decision" which attracts the jurisdictionexercisable by way of a writ of certiorari.
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Gamini Atukorale v. Dayananda Dissanayake,
Commissioner of Elections and Others (Wijetunga, J.)
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Per Wijetunga J.
“As mentioned above, provision has been made in statutes such as theParliamentary Elections Act, No. 1 of 1981, Presidential Elections Act,No. 15 of 1981, and the Provincial Councils Elections Act, No. 2 of 1988 foran election to be challenged appropriately, but not so in the case of the LocalAuthorities Elections Ordinance.
"… If that be the case, the time is ripe for this court to draw the attentionof the legislature to the crying need for appropriate provisions to be madefor the invalidation of impugned elections under this Ordinance on groundssimilar to those contained in the other statutes aforementioned. Otherwise, theconcept of a free and fair election and the citizen's right to elect representativesof his choice to the local authority of his area would not merely be a mythbut a farce."
Cases referred to:
Martin Perera v. Madadombe 73 NLR 25.
Perera v. Wickramatunga 69 NLR 176.
Piyadasa v. Gunasingha 42 NLR 339.
Silva and Others v. Sadique and Others (1978.79.80) 1 Sri LR 166.
Morgan v. Simpson (1974) 3 All ER 722.
APPEAL from the judgment of the Court of Appeal.
K. N. Choksy, P.C with Ronald Perera and Ms. K. Wijetunga for appellant.
K. C. Kamalasabeyson, P.C A.S.G, with A. Gnanadasan SSC and N. Pulle, SC
for 1st, 2nd and 28th respondents.
R. K. W. Goonesekera with Asoka Gunasekera%and Gaston Jayakody for 6th
respondent.
Cur. adv. vult.
October 28, 1998.
WIJETUNGA, J.
The petitioner, as General Secretary of the United National Party(UNP), filed an application in the Court of Appeal seeking a mandatein the nature of a Writ of Certiorari quashing the declaration of thefinal result of the election held on 21.3.97 for the purpose of electingmembers to the Negombo Municipal Council and for a Writ of Mandamusdirecting the 1st and 2nd respondents to hold an election to the said
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Municipal Council in due compliance with the provisions of the LocalAuthorities Elections Ordinance, as amended.
Candidates from the United National Party (UNP), the People’sAlliance (PA), the Nava Sama Samaja Party (NSSP) aind the JanathaVimukthi Peramuna (JVP) contested the said election. The particularsregarding the poll and the votes received by the four political partiesaforesaid are as follows:
People's Alliance23,456
United National Party22,922
Nava Sama Samaja Party1,201
Janatha Vimukthi Peramuna638
Total polled51,230
Total valid votes48,217
Rejected votes3,013
Registered number of electors67,622
The PA thus obtained a majority of 534 votes over the UNP.
Accordingly, the PA .was declared entitled to 12 seats (including2 additional 'bonus' seats) and the UNP to 10 seats. The NSSP andthe JVP were not entitled to any seats. The Negombo MunicipalCouncil has a total of 22 members.
It was alleged that, out of the 45 polling stations, there wereincidents of intimidation, thuggery and violence in 13 polling stations.The 1 st respondent, the Cemmissioner of Elections has conceded thathis officers have reported such incidents in 10 polling stations.
The appellant alleges that by reason of the incidents referred toin paragraph 17 of the petition filed in the Court of Appeal, the electionwas not conducted in accordance with the provisions of the LocalAuthorities Elections Ordinance and the principles laid down in suchprovisions and the result of the said election was thereby affected.He further pleaded that accordingly "the conduct of the said electionby the 1 st and 2nd respondents is illegal and a nullity and of no legaleffect, and the purported result thereof liable to be quashed in pursuanceof the provisions of section 69 of the Local Authorities ElectionsOrdinance". It is on this basis that the appellant sought mandates inthe nature of Writs of Certiorari and Mandamus from the Court ofAppeal.
SC' Gamini Atukorale v. Dayananda Dissanayake,
Commissioner of Elections and Others (Wijetunga, J.)209
The Court of Appeal, in a well considered judgment, held inter aliathat the court was "constrained to hold that the petitioner has failedto establish that the 1st respondent or his officers failed to complywith the provisions of the Ordinance. It follows therefrom that therewasfno breach of the principles underlying those provisions" andreferring to the submission of counsel that "the incidents referred tomay have prevented the supporters of the UNP from casting theirvotes" observed that "apart from the speculative nature of the sub-mission, there is absolutely no evidence to establish that the majorityof 534 votes in favour of the PA over the UNP would have beenthe other way round, even if the elections officers were able to preventthe incidents that took place at the polling stations". The applicationwas accordingly dismissed without costs. It is from this order that thepetitioner has appealed to this court.
As correctly submitted by learned President's Counsel for thepetitioner at the hearing before us, the focal point of the case is section69 of the Local Authorities Elections Ordinance, as amended, whichstates that:
"No election shall be invalid by reason of any failure to complywith the provisions of this Ordinance relating to elections, if it appearsthat the election was conducted in accordance with the principles laiddown in such provisions, and that such failure did not affect the resultof the election".
There is no provision in the Ordinance for the invalidation of anelection on grounds such as general intimidation, undue influence, andbribery. However, they are made punishable offences under section79 and 81.
Learned counsel for the appellant stated that what was sought fromthe Court of Appeal was an order in the nature of a Writ of Certiorarito quash the declaration made by the Returning Officer in terms ofsection 65 of the Ordinance. He submitted that Certiorari would lieto quash a decision or declaration made under a statute if the statutoryprocess or procedure by which the decision or declaration is madeis not in compliance with the prescribed procedure; and that thedeclaration made under section 65 is the culmination of such astatutory process. Such a determination cannot stand if there has beennon-compliance.
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The procedure relating to such elections is contained in Part IVof the Ordinance. Counsel submitted that the provisions relevant tothe grounds of complaint are contained in sections 24, 27, 37 (3) (a)and 44 (e) of the Ordinance. Sections 49 (1) and (4) (polling agents),50 (3) (maintenance of law and order), and 59 (1) (procedure onclosure of poll), it was further submitted, should also be effectuallycomplied with.
Learned President's Counsel for the appellant stated that althoughthe petition contained allegations in respect of incidents at 13 pollingstations, he was content to accept the version of the 1st respondentthat such incidents had been reported only in respect of 10 pollingstations. The allegations were to the effect that gangs of persons brokeinto these polling stations, drove the UNP polling agents out, forciblytook ballot paper books from the hands of the officers, marked suchballot papers, perforated them and inserted them into the ballot boxes.
It was also alleged that the 6th respondent, who is the present Mayorof the Negombo Municipal Council, led the gangs and his presencewas specifically mentioned by at least one Presiding Officer, viz thatof Polling Station No. 42, where a UNP candidate was able to pickup one such ballot paper marked for the PA, with the preferencesmarked for the 6th respondent. These incidents are alleged to havetaken place between 1 p.m. and 4 p.m. resulting in the polling stationsbeing abandoned and the voters having dispersed. The PresidingOfficers' reports confirmed the alleged incidents but the personsresponsible for such incidents were not identified by the officersconcerned.
It is the position of the 1st respondent that where it was reportedthat gangs of persons had forcibly entered the polling stations and'had forcibly taken ballot papers from the officers, had marked andperforated them and had ’stuffed’ them into the ballot boxes, he gavespecific instructions to the Counting Centre and removed suchballot papers by identifying ballot papers which had not been castby the registered electors, with reference to the serial numbers, givenby the Senior Presiding Officers and thus invalidated and excludedthose ballot papers from the count, thereby ensuring that only thoseballot papers which were validly issued by the elections officers tothe registered electors were taken into account at the stage of thecount. These averments are supported by the affidavits of the CountingOfficers who state that having correctly identified such ballot papers
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with reference to the serial numbers, they were invalidated andexcluded from the count, in the presence of the Counting Agents whowere at the counting centres.
While the court unreservedly condemns the actions of those whoattempted to disrupt the poll, thus interfering with the voter's right toa free and fair election, their identity has unfortunately not beensufficiently established in these proceedings. It must, however, beemphasized that the officers on duty at these polling stations werenot to blame for such incidents.
Learned counsel for the appellant pointed out that the Court ofAppeal had taken the view that the transgressions of or non-compliancewith the provisions of the law should be brought home to the culpabilityof the officers conducting the election and that the result cannot bevitiated by reason of wrongful acts done by outsiders. Further, it hadbeen held that the onus was on the petitioner to prove that the resultwas in fact affected, which the Court of Appeal itself recognizes iswell nigh impossible. It was his submission that the affectation of thepoll cannot be established with mathematical precision. But, there wasa serious doubt as to whether the result would have been the sameif there were no such incidents. He pointed out that about 1/4th ofthe polling stations had been invaded by these gangs. It was alsorelevant that the majority obtained by the PA was only about 1% ofthe valid votes cast and the voters who had by then not cast theirvotes had been unable to do so, due to the acts complained of. He,therefore, submitted that the election had not been conducted inaccordance with the principles laid down in the provisions of theOrdinance and that such failure did affect the result of the election.He further submitted that in the absence of specific provisions in theOrdinance to invalidate such an election, a Writ of Certiorari was theappropriate remedy to have the result of such an election quashed.
Learned counsel for the 6th respondent, on the other hand, sub-mitted that in other enactments dealing with elections such as theParliamentary Elections Act and the Presidential Elections Act, specificprovision has been made in regard to the procedure to be adoptedfor the invalidation of such elections. But, in regard to Local Authorities,the Legislature has refrained from making similar provisions, thoughthis Ordinance has been amended as recently as in 1990. Althoughthe petitioner sought to base his case on non-compliance with the
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provisions of the statute, he was in fact relying on acts of generalintimidation, which though punishable insofar as the perpetrators ofsuch acts were concerned, was not a ground on which such an electioncould be avoided under the Ordinance.
Out of 45 polling stations, alleged non-compliance was only inrespect of 10. Even in regard to those 10 polling stations, the com-plaints come under the rubric of general intmidation.There had thusbeen compliance with the law in regard to the other 35 polling stations.There is no provision other than section 69 of the Ordinance tochallenge an election in respect of a local authority and that sectiondeals with non-compliance with the provisions of the Ordinance, inconsequence of which the result must be affected. He pointed outthat under section 83 of the Ordinance, any person convicted of anoffence under sections 77 to 82 shall, in addition to any other penaltyto which he may be liable for such offence, be disqualified for a periodof five years reckoned from the date of such conviction from beingelected or from sitting or voting as a member of any local authority.It is significant, he said, that section 79 deals with acts of bribery,and section 81 with intimidation and related acts. Transgressions ofthose sections may result in penal sanctions insofar as the personsculpable are concerned; but their individual or collective actions havenot been made the basis for the avoidance of such elections. Thus,section 69 is the only section available to the petitioner. What thelaw contemplates is that the election be conducted in accordance withthe principles laid down in the several provisions of the Ordinance,so as not to affect its result. It was counsel’s submission that theelection had indeed been-conducted in accordance with thoseprovisions and section 69 therefore has no application to the factsand circumstances of this case.
He further submitted that these proceedings could not have beenproperly brought by way of an application for a Writ. Having regardto the grounds alleged to quash the result, he submitted that a Writof Certiorari is wholly inappropriate and the petitioner cannot convertwhat he referred to as a 'Writ Court' into an 'Election Court'. Is itconceivable, he asked, that these allegations can be substantiatedmerely by affidavit and not by oral evidence? Complaints of this natureare triable before a properly constituted 'Election Court' where oralevidence could be led and the witnesses subjected to cross-exami-nation. The elaborate procedure laid down for challenging a
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Parliamentary election, etc., is a clear indication that once an electionis held, it is not easily set aside.
Counsel further submitted that what the petitioner sought to quashwas the final result of the said election which was merely a declaratipnof the result of such election by the Returning Officer, in terms ofsection 65 of the Ordinance. He had no discretion in regard to thedeclaration of the result, in that he had merely to add up and determinethe number of votes cast for each recognized political partyor independent group, from the statements of votes cast at each pollingstation. That is not a 'decision' but merely the proclamationof the result and as such it cannot be the subject of an applicationfor a Writ of Certiorari.
The learned Additional Solicitor-General for the 1st and 2ndrespondents submitted that he defends the declaration made underthe relevant section of the Ordinance. He pointed out that while certainsections of the Ordinance relate to purely ministerial acts, othersinvolve a discretion and a decision, such as in section 31. Undersection 65 (1) (a), he submitted, that upon the receipt of the necessarydocuments, the Returning Officer has no choice but to declare theresult. As non-compliance naturally implies a duty to perform a statutoryfunction, it is necessary to ascertain whether the 1st and 2ndrespondents have not complied with the provisions contemplated bysection 69. Clearly the answer is 'none'.
An election contemplated by section 69 can be conducted only by-the 1st respondent and his officers, arJ non-compliance with theprovisions of the Ordinance referred to therein necessarily envisagesthe acts of the officers concerned with the conduct of such election.Adverting to the incidents alleged by the petitioner, he stated thatthe 1st respondent has admitted all the incidents except three; but,significantly he has made reference to 'persons unknown', sincethe identity of the persons responsible for such incidents was notwithin the knowledge of the 1st respondent or his officers.
He submitted that the issue before the court being a contestedone, it could not have been adequately dealt with in proceedings byway of Writ. He referred to the several provisions in the PresidentialElections Act, the Parliamentary Elections Act, and the ProvincialCouncils Elections Act, which provide for an election to be annulled
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according to the procedure laid down in those enactments. Suchprovisions are not available under the Local Authorities ElectionsOrdinance.
Learned President's Counsel for the petitioner submitted in replythat the decision in Martin Perera v. Madadombd'* has no applicationto the facts and circumstances of this case and the ratio decidendiof that case therefore does not apply. (Fernando, CJ. had referredthere to the decision in Perera v. WickramatungaP, with acceptance,while Piyadasa v. GunasinhaP> had been overruled.) He laid emphasison the fact that the acts complained of in Martin Perera's case werecommitted during the whole campaign, (not on polling day), beforethe commencement of the poll and outside the precincts of the pollingstation. There was no complaint of general intimidation on polling day.
In Perera v. Wickramatunge (Supra) also, the general intimidationcomplained of was during the polls campaign.
As regards Piyadasa v. Gunasinghe (Supra) he pointed out thatthe present section 69 of the Ordinance was then not in existence.
He observed that in the instant case, the court is dealing with actsof intimidation on polling day, at the polling stations, when sections24 to 68 were in operation. The control of the election at that timewas in the hands of the Officers of the Commissioner of Elections.He submitted that the fact that there was general intimidation on pollingday makes a fundamental difference in regard to the operation ofsection 69.c
As the will of the majority must prevail at the close of the polland by the declaration of the results the Returning Officer decideswho has been elected, such acts of general intimidation affect therights of the subject. The declaration by the Returning Officer mustevidence the will of the majority, as expressed through the procedurelaid down in sections 54 to 68, which is within the field of public law.The Commissioner and the Returning Officers are statutory function-aries and if the final determination is flawed by a failure to observeany relevant step in the procedure, then the declaration of the resulttoo is flawed and cannot stand in law. The purpose is to enable thevoter to exercise his right effectively and without hindrance. It washis submission that this election was not conducted in accordance
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with the principles laid down in the relevant provisions of the Ordinanceand section 69 mandates that such an election shall be invalid.
As regards the submission of the respondents that Certiorari isin any event not the appropriate remedy, it was his contention thatthese being statutory provisions and the officers being statutoryfunctionaries, the public law element necessary for the issuance ofsuch a Writ is satisfied. In the past, when the courts had recourseto the Writ of Quo Warranto, the system of election to local authoritieswas entirely different. The election of a member at that time was toa particular ward of a local authority and such an election couldappropriately be challenged through a Writ of Quo Warranto, but underthe Proportional Representation system, the entire local authority areais taken together and only one declaration is made by the ReturningOfficer in respect of such local authority. Certiorari, he submitted, istherefore the appropriate remedy, as one has to attack the finaldeclaration made in respect of the entire Municipal Council.
Section 69, he said, admittedly does not provide a remedy. Hetherefore contended that the petitioner must necessarily have recourseto the Writ of Certiorari, that being the only available remedy in thecircumstances. He referred us to Silva & Others v. Sadique & Othersin that connection.
Learned counsel for the 6th respondent, on the other hand, submittedthat what is sought is the cancellation of the entire election whichaffects the rights of persons against whom there are no allegationswhatsoever. He pointed out that as Ma; Jin Perera's case does notrefer to the facts but discusses only the law relating to the subject,there is no material to indicate whether the general intimidationcomplained of in that case was on polling day or otherwise. The broadissue there, he said, was whether Quo Warranto could be used inthose circumstances, which under the Proportional Representationsystem has no relevance.
In any event, it was for the petitioner to establish that the failure,if any, to comply with the provisions of the Ordinance did affect theresult of the election and in the instant case he submitted that thepetitioner has failed to do so.
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The learned Additional Solicitor-General drew our attention to thelegislative pattern between non-compliance and general intimidation,etc. He referred us to the provisions of the Ordinance which deal withoffences relating to elections (section 77 et seq.) and the penalconsequences resulting from the contravention of such provisions. Hesubmitted that the attempt on the part of the petitioner to introducegeneral intimidation as an ingredient of non-compliance under section69 is not permissible. The fact that it is alleged that there was generalintimidation within the polling station, he said, would not convert suchan act to non-compliance within the meaning of section 69. The allegedacts are those of third parties who had no hand in the, conduct ofthe election, which was essentially within the province of the officersconcerned. As section 69 speaks of the election being conducted inaccordance with the principles laid down in the relevant provisions,it necessarily refers to the role of the officers who conduct suchelection and not to that of third parties. The Legislature, he submitted,does not contemplate the setting aside of an election to a localauthority on the grounds urged by the petitioner, as is evidenced bythe fact that no provision has been made therefor in the LocalAuthorities Elections Ordinance unlike in other statutes such as thePresidential Elections Act, the Parliamentary Elections Act and theProvincial Councils Elections Act where specific provision has beenmade and the necessary legislative machinery installed for theannulment of such elections, where appropriate.
The main question with which the court is concerned in theseproceedings is whether a cWrit of Certiorari is available in thesecircumstances or is the appropriate remedy to invalidate such anelection, where admittedly there is no specific legal provision therefor.But, before one gets to that question, it is necessary in the instantcase to consider whether there has been non-compliance with theprovisions of the Ordinance relating to Local Authorities Elections.
Lord Denning, MR in Morgan v. Simpson, dealing with the questionof the validity of a local government election which was challengedon the ground that it had not been conducted 'substantially inaccordance with the law as to elections' and alternatively that theomissions of the polling clerks had affected the result, declared theelection invalid on the alternative ground aforementioned. In that
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connection, he considered a number of decisions of the English courtsrelevant thereto. But those cases too dealt with non-compliance withthe law by elections officers and not with matters concerning thirdparties whose acts may affect the ultimate result of the election. Thus,those decisions would not be of assistance in regard to the matterbefore us.
Fernando, CJ., in Martin Perera's case (supra) has subjectedsection 69 to very careful scrutiny. He states (at page 29) that: "havingregard to the sense in which the expression failure to comply' hasbeen used by the Legislature of this country for a hundred years,
I greatly doubt whether in s. 69 of Cap. 262 that expression was usedto connote anything other than breaches of statutory duties”.
He goes on to state (at page 30) that: “it is perfectly clear thatsections 24 to 68 of Cap. 262 deal with the conduct of an election,and entrust various officers at different stages with the duty of conductingelections. If therefore any such officer does not comply with someprovisions of those sections, it may properly be said that the electionwas not conducted in accordance with the principles which underliethose provisions. It is thus manifest that s. 69 was intended to apply 'in such a case. But can it properly be said that the giving and takingof bribes to and by voters forms part of the conduct of an election?"
Again (at page 31) His Lordship observes that: "the language ofthe section leads clearly to the inference that the contemplated reasonfor invalidity is that the election was n^t conducted by the properofficials in accordance with the principles of ss. 24 to 67. Once thatinference is reached, a court must hesitate to institute a search forsome further hidden intention".
Applying these dicta, with which I am in respectful agreement, tothe facts of this case, it is crystal clear that the acts complained ofby the petitioner form no part of the conduct of the election, howeverreprehensible they may be. They were undoubtedly the acts of thirdparties who had no legitimate role to play in the conduct of theimpugned election. Though they may have committed penal offences,they surely could not have been in breach of statutory duties, as theyhad none to perform.
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To my mind, the fact that the alleged acts were committed onelection day or at the polling booths makes no difference in law asfar as the applicability of section 69 is concerned. The election processproper commences at least from the stage when steps are taken byelections officers under part IV of the Ordinance (section 26 et seq.).From then onwards, the officers of the Commissioner of Elections arein sole charge of the conduct of the election. Specific provision hasbeen made in the Ordinance prohibiting certain acts not only on thedate of the poll, but during the period commencing on the first dayof the nomination period and ending on the day following the dayon which the poll is taken (sections 81 A, 81B, etc.). But the actsso specified do not even include incidents of the nature referred toin paragraph 17 of the petition. The distinction sought to be drawnby learned counsel for the petitioner in that regard is thus not tenable.
The petitioner, therefore, cannot succeed on the ground that therehad been a failure to comply with the relevant provisions of theOrdinance.
In the instant case, even though the PA gained control of theCouncil by a slim majority over the UNP, the evidence adduced isinsufficient to determine that the incidents complained of did affectthe result of the election, in the sense that had it not been for thoseincidents, the decision would have been in favour of the UNP. TheCourt of Appeal, in my view, rightly observed that the petitioner"will be faced with the well nigh impossible task of proving beyondreasonable doubt … or ^ a high degree of probability … theallegations in the petition, solely on supporting affidavits anddocuments".
Unlike the proceedings in an election petition case where oralevidence is led and the witnesses are subjected to cross-examination,thereby providing an opportunity to the parties as well as the courtto come to grips with the true nature of the acts complained of andthe consequences thereof, the procedure in an application for a Writof Certiorari where the matters are decided on affidavits and docu-ments, to say the least, is a very poor substitute for the procedurefollowed at the hearing of an election petition. Evidence tenderedthrough affidavits, etc., cannot, in these proceedings, be adequate,
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even if tested by cross-examination of the deponents of such affidavits.Nor is such a court equipped to effectively deal with the validity ofan impugned election through the usual procedure applicable to thegrant of a Writ of Certiorari. Such a Writ is therefore not merely notthe ideal remedy, but, in my view, is quite an inappropriate remedy.
As regards the question whether in any event a Writ of Certiorariwould lie to quash the declaration of the result of an election by theReturning Officer in terms of section 65 of the.Ordinance, one mustnecessarily examine the nature of the Returning Officer's functionsin respect thereof. The Returning Officer does not have to exercisea discretion or make a 'decision' at that stage, in that he has merelyto declare the result on the basis of the total number of valid votescast for each political party or independent group, as reflected in thereturns sent by the relevant officers of each polling station. This isno more than a ministerial act and by its very nature does not attractthe jurisdiction exercisable by way of a Writ of Certiorari.
Jain & Jain, Principles of Administrative Law, 4th Ed., states atpage 325 that: "functions dischargeable by the administration mayeither be ministerial or discretionary. A ministerial function is one wherethe relevant law prescribes the duty to be performed by the concernedauthority in certain and specific terms leaving nothing to the discretionor judgment of the authority. It does not involve investigation intodisputed facts or making of choices. The authority concerned acts instrict obedience to the law which imposes on it a simple and definiteduty in respect of which it has no choice''.
The case of Silva & Others (supra) cited by learned counsel forthe appellant has no application to the facts and circumstances ofthis case, as the court was there considering an objection in limineon the ground, inter alia, that Certiorari did not lie to quash Reportsmade to the President of the Republic pursuant on inquiries held uponWarrants issued under the Commissions of Inquiry Act and the bindingeffect of such orders or decisions.
Undoubtedly there is a serious lacuna in the law as regardsimpugned elections under the Local Authorities Elections Ordinance,as amended. If the legislative intent is to be gathered by reference
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to the several amendments to that Ordinance, which has been inexistence since 1946, and the last such amendment being as recentlyas in 1990, it does not appear that the failure to provide the necessarymachinery to annul such an election was a mere omission or oversighton the part of the Legislature. As mentioned above, provision hasbeen made in statutes such as the Parliamentary Elections Act, No.
1 of 1981, Presidential Elections Act, No. 15 of 1981, and the ProvincialCouncils Elections Act, No. 2 of 1988 for an election to be challengedappropriately, but not so in the case of the Local Authorities ElectionsOrdinance.
Therefore, one cannot but conclude that the failure to make suchprovision in respect of elections to local authorities was deliberate onthe part of the Legislature. If that be the case, the time is ripe forthis court to draw the attention of the Legislature to the crying needfor appropriate provisions to be made for the invalidation of impugnedelections under this Ordinance on grounds similar to those containedin the other statutes aforementioned. Otherwise, the concept of a freeand fair election and the citizen's right to elect representatives of hischoice -to the local authority of his area would not merely be a myth,but a farce.
The acts of general intimidation complained of in these proceedingsshould be an eye-opener to those vested with the responsibility ofgood governance to take appropriate steps to prevent such occur-rences in the future, lest it be thought that even after fifty years ofIndependence, the oft lameVited but hitherto uneradicated scourge ofelection violence has become part of our 'election culture'.
For the reasons aforesaid, the court, though reluctantly, is obligatedto hold that the appellant cannot succeed in this appeal.
The appeal is accordingly dismissed, but without costs.
G. P. S. DE SILVA, CJ. – I agree!
BANDARANAYAKE, J. – I agree.
Appeal dismissed.