GHANY v. DAYANANDA DISSANAYAKE ,COMMISSIONER OF ELECTION AND OTHERS

002-SLLR-SLLR-2004-V-1-GHANY-v.-DAYANANDA-DISSANAYAKE-COMMISSIONER-OF-ELECTION-AND-OTHERS.pdf


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Ven. Omare Dhammapala Thero v Rajapakshage Peiris
and others (Bandaranavake. J.)
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GHANYv
DAYANANDA DISSANAYAKE,COMMISSIONER OF ELECTIONS AND OTHERSSUPREME COURTFERNANDO, J.
ISMAIL, J.
EDUSSURIYA, J.
YAPA, J. ANDWIGNESWARAN, J.
S.C. APPEAL NO 37/2003COURT OF APPEAL APPLICATIONNO, 1115/2000217 SEPTEMBER 2003
Writs of certiorari and mandamus – Alleged irregularities in counting prefer-ence votes at Local Authorities Election – Constitution, Articles 104A and
1Q4H -17 Amendment, section 27 – whether Article 104H of the Constitution
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removed jurisdiction of Court of Appeal to inquire into alleged election irregu-larities committed by the Elections Commissioner and his subordinates.
At the local government election held on 20.05.2002 for election of membersto the Colombo Municipal Council, the Sri Lanka Muslim Congress (“SLMC”)became entitled to six seats. The appellant was the 7^ candidate of that partyaccording to preference votes and was therefore not elected. He applied to theCourt of Appeal for a writ of certiorari to quash the declaration of results. The1st respondent was the Commissioner of Elections, the 2n<* respondent wasthe Returning Officer and the 3rcl respondent was the Assistant Commissionerof Elections, Colombo city. The appellant prayed for certiorari on the ground ofirregularities at the counting of preferences and a writ of mandamus to compela recount.
On a preliminary objection, the Court of Appeal held that in view of Article 194Hof the Constitution (introduced by the 17"1 Amendment) the jurisdiction of thecourt in relation to matters arising out of the exercise of powers by theElections Commissioner/Election Commission had been removed to theSupreme Court. Hence the Court of Appeal lacked jurisdiction to hear anddetermine the matter.
The Election Commission introduced by the 17**1 Amendment in October 2001has not yet been established. In terms of section 27 of the 17th Amendmentthe Election Commissioner shall continue to exercise the powers of theElection Commission until the Commission is constituted.
Held:
A difficult and important question of constitutional interpretation arosewhich should have been referred to the Supreme Court in terms of Article125 of the Constitution.
Article 104A confers, in respect of the Election Commission finality of deci-sions and immunity from suit subject, however, to the jurisdiction of theSupreme Court under Article 126(1), Article 104H and Article 130 and ofthe Court of Appeal under Article 144.
Article 104H provides inter alia, that the jurisdiction of the Court of Appealunder Article 140 of the Constitution shall in relation to any matter thatmay arise in the exercise by the Commission of the powers conferred onit by the Constitution or by any other law be exercised by the SupremeCourt.
The interpretation of the relevant provisions must commence on the basisthat “Election Commission” means the yet to be established ElectionCommission and not its officers, and not the Commissioner of Electionsand the “Commissioner of Elections” means the Commissioner and nothis officers.
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Article 104H must be read with Article 104 A(a). Read together, those twoprovisions manifest a clear intention to transfer to the Supreme Court apart of the writ jurisdiction of the Court of Appeal namely, in relation to anymatter arising by reason of the exercise by the Election Commission of itspowers, and also to make decisions, directions and acts of the ElectionCommission final and immune from judicial review except under Articles104H, 126(1) and 130. Ex facie neither Article applies to the acts andomissions of the Commissioner of Elections or of his officers.
The subject matter of the appellant's writ application to the Court ofAppeal was mainly, if not entirely, in respect of the alleged acts (andomissions) of officers of the Commissioner of Elections. He did not allegeany exercise of the powers of the Election Commission. Those acts couldnot have been regarded ex facie as an exercise of the powers of theCommissioner of Elections and/or the Election Commission. Accordingly,upon the material available as set out in the application Articles 104 A and104 H read with Article 27 of the 17lh Amendment did oust the writ juris-diction of the Court of Appeal, and the preliminary objection should havebeen rejected.
Case referred to:
S.C. Special Determination No 1/92
APPEAL from the judgment of the Court of Appeal.
A.S.M. Perera, P.C. with Prasanna de Zoysa, Neville Ananda and Anuruddhika
Bulegoda for appellant.
A. Gnanathasan, Deputy Solicitor-General with N. de Silva. State Counsel and
A. Jayaweera, State Counsel for 1st, 2nd and 3rd respondents.
Cur.adv.vult
October 31st 2003
FERNANDO, J.The petitioner-appellant (“the appellant”) contested thelocal government election held on 20.5.2002 (under the LocalAuthorities Elections Ordinance, No 53 of of 1946 as amendedfrom time to time) for the election of members to the ColomboMunicipal Council, as a candidate of the Sri Lanka MuslimCongress ('SLMC'). That party secured six seats. The sixth suc-cessful SLMC candidate obtained 2723 preference votes whilethe appellant, the seventh SLMC candidate, obtained only 2686
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preference votes, and was unsuccessful. Alleging that there hadbeen serious irregularities in regard to the counting of the SLMCpreference votes, that a request for a recount had been refused,and that consequently there had not been a lawful count and dec-laration of results, the appellant applied to the Court of Appeal forcertiorari to quash “the decision of the 1s' and/or 2nd and/or 3,drespondent announcing the final preferential results”, and formandamus to direct those three respondents “to recount thepreferential votes of all candidates of the SLMC”, and “to publishthe results…. specifying the names of the SLMC candidates whoare elected on the basis of such recount”. The 1S1 respondent isthe Commissioner of Elections, the 2nd respondent is theReturning Officer, and the 3,d respondent is an AssistantCommissioner of Elections who is said to have read out theresults of the preferential voting.t
In his petition the appellant complained that the 2nd respon-dent had refused a recount, and that the announcement of thefinal results by the 3,d respondent was not lawful; and all his otherallegations were in respect of acts and omissions of other officersat the counting centres. Although he prayed for certiorari andmandamus against the 1st respondent, he did not allege anywrongful act or omission by the 1st respondent in the exercise ofhis powers conferred by the Constitution or by any other law.
At the outset, the learned Deputy Solicitor-General, onbehalf of the 1sl , 2nd and 3,d respondents, took three preliminaryobjections. The Court of Appeal by its judgment dated 17.10.2002(which dealt with several similar writ applications) overruled twoobjections, and upheld the third objection, which was quoted in itsjudgment as follows:
“The Court of Appeal lacked jurisdiction to hear and deter-mine this matter as in terms of Article 104H of theConstitution (introduced by the 17th Amendment to theConstitution) the jurisdiction had been transferred orremoved to the Supreme Court in relation to matters arisingout of the exercise of powers by the ElectionCommissioner/Election Commission.”
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The Court of Appeal observed that a decision on that objec-tion “does not require an interpretation of the Constitution, whichsole jurisdiction admittedly lies with the Supreme Court, but mere-ly an application of the Constitution”, and went on to consider anduphold that objection.
I must refer to the relevant Constitutional provisions. Theexisting Articles 103 and 104 were repealed by the 17lhAmendment. The new Article 103 introduced by the 17,hAmendment provides for the establishment of the “ElectionCommission”. That Commission has not yet been establisheddespite the lapse of two years after the enactment of the 17thAmendment.
Article 104A confers, in respect of the Election Commission,“finality of decisions and immunity from suit”, in the followingterms:
“Subject to the jurisdiction conferred on the Supreme Courtunder paragraph (1) of Article 126, Article 104H and Article130, and on the Court of Appeal by Article 144, and thejurisdiction conferred on any court by any law to hear anddetermine election petitions or Referendum petitions.
no court shall have the power or jurisdiction to entertainor hear or decide or call in question on any ground and inany manner whatsoever, any decision, direction or act ofthe Commission, made or done or purported to have beenmade or done under the Constitution or under any law relat-ing to the holding of an election or the conduct of aReferendum as the case may be, which decisions, direc-tions or acts shall be final and conclusive; and
no suit or other proceeding shall lie against any memberor officer of the Commission for any act or thing which ingood faith is done or purported to be done by him in the per-formance of his duties or the discharge of his functionsunder the Constitution or under any law relating to the hold-ing of an election or the conduct of a Referendum as thecase may be.” [emphasis added throughout]
This provision draws a sharp distinction between the acts of
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the Commission and the acts of its officers. In particular, the lat-ter receive protection only in respect of acts done in good faith.
That distinction militates against any general assumption that theacts of officers can be equated to, or deemed to be, acts of theCommission.
Article 104B(3) makes the Commission “responsible andanswerable to Parliament in accordance with the provisions of theStanding Orders of Parliament".
Article 104H of the Constitution provides:
“(1) The jurisdiction conferred on the Court of Appeal under 90Article 140 of the Constitution shall, in relation to any mat-ter that may arise in the exercise by the Commission of thepowers conferred on it by the Constitution or by any otherlaw, be exercised by the Supreme Court.
every application invoking the jurisdiction referred to inparagraph (1), shall be made within one month of the dateof the commission of the act to which the applicationrelates. The Supreme Court shall hear and finally disposeof the application within two months of the filing of thesame.”100
One significant disadvantage of that ouster of jurisdiction,from the point of view of a petitioner, is that the short time limitsmake it difficult for a petitioner to obtain all the necessary affi-davits and documents which are generally required to support apetition based on electoral misconduct.
It is Article 140 which confers the writ jurisdication on theCourt of Appeal, subject to the proviso (introduced by the 1stAmendment) that Parliament may by law provide that in such cat-egory of cases as may be specified in such law the writ jurisdic-tion shall be exercised by the Supreme Court.110
Section 27 of the ly"1 Amendment provides:
“(1) Unless the context otherwise provides, there shall besubstituted for the expressions “Commissioner of Elections”and “Department of the Commissioner of Elections” wher-ever such expressions occur in the Constitution and in any
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written law or in any contract, agreement or other docu-ment, of [sic] the expression “Election Commission”.
The person holding office as the Commissioner ofElections on the day immediately preceding the date ofcommencement of this Act, shall continue to exercise andperform the powers and functions of the office ofCommissioner of Elections as were vested in him immedi-ately prior to the commencement of this Act, and of theElection Commission, until an Election Commission is con-stituted in terms of Article 103, and shall, from and after thedate on which the Election Commission is so constituted,cease to hold office as the Commissioner of Elections.
All suits, actions and other legal proceedings institutedby or against the Commissioner of Elections appointedunder Article 103 of Constitution prior to the amendment ofsuch Article by this Act, and pending on the day immediate-ly prior to the date of commencement of this Act, shall bedeemed to be suits, actions and other legal proceedingsinstituted by or against the Election Commission, and shallbe continued and completed in the name of the ElectionCommission.
Any decision or order made, or ruling given by theCommissioner of Elections appointed under Article 103 ofthe Constitution prior to the amendment of that Article bythis Act, and [sic] under any written law on or before thedate of the commencement of this Act, shall be deemed tobe a decision or order made or ruling given, by the ElectionCommission.”
The Court of Appeal held (in relation to all the writ applica-tions) that “the writ jurisdiction conferred on the Court of Appealunder Article 140 of the Constitution in relation to matters thatarise in the exercise [by] the Commission/Election Commissionerof the powers conferred… either by the Constitution or any otherlaw, including the Local Authorities Elections Act as amended,was removed by the 17lh Amendment to be exercisable only bythe Supreme Court." The reasons given may be summarized asfollows. Since section 27(1) substitutes for “Commissioner of
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Elections” the expression “ Election Commission”, the acts of theCommissioner of Elections in relation to the Local AuthoritiesElections of 2002 are considered to have been done by theElection Commission. In terms of section 27(2), theCommissioner of Elections functions in a dual capacity – first, hefunctions under the powers legally vested in him, asCommissioner of Elections, up to 2.10.2001, and second, from3.10.2001, he also functions as the Election Commissioner, until 160an Election Commission is constituted. Under section 27(3), allsuits, actions and legal proceedings pending on 2.10.2001, aredeemed to be suits, etc, against the Election Commission, andshall be continued and completed only in the name of theElection Commission. Finally, all decisions and orders made andrulings given by the Commissioner of Elections prior to 3.10.2001,are deemed by section 27(4) to be decisions, etc, of the ElectionCommission. Thus, despite the failure to constitute the ElectionCommission a legal fiction was created to the effect that all suchdecisions, orders, and rulings of the Commissioner of Elections 170would be deemed to be those of the Election Commission, andsuits, actions, and proceedings against the Commissioner ofElections would be completed in the name of the ElectionCommission.
The Court of Appeal failed to consider whether the allega-tions made by the appellant related to matters arising from theexercise of the powers of the Commissioner of Elections: or to theexercise and performance of his powers and functions: or to hisdecisions, orders and rulings. Furthermore, although the respon-dents had not been called upon to file their objections, and the iso,hearing was only in respect of preliminary objections, the Court ofAppeal went on to make the following observations in regard tothe merits, including the duty of the 1s' respondent to hold arecount:
“Procedures which ensure just and fair conduct of elections(are) set out and regulated by law and such law should beadhered to. This must be buttressed by the transparent actionsof the public officers/officers appointed by the ElectionCommissioner who have [a] sacred duty to carry out the pro-cedure and processes established by law, which makes it quite 190
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essential that the results reflect the true and correct decision ofthe preference votes cast by the franchised people and onlythen will the elected candidates be ensured of their rights andjustice will prevail. Unfortunately, as far as these applicationsare concerned, clearly in terms of [the] 17th Amendment thewrit jurisdiction is no longer vested in this Court, but lies in theSupreme Court, and this Court cannot in law arrogate suchpowers to itself in conflict with law that takes away the juris-diction of this Court to hear and determine such matters.
But this must not deter the Commissioner of Elections to mere- 200ly have a recount [of] the votes of these areas of the candidateswho have preferred these applications challenging theirappointments [sic], based on allegations against his own offi-cers which must indirectly affect the legitimacy of his own office.
In the name of justice, it is but due and right that he shouldrecount the votes, which are in any event in his custody, andtake appropriate action to rectify the declarations and determi-nations that have been made bv officers appointed bv theElection Commissioner where either due to error or deliberatemanipulation and/or undue influence…”210
Since the Court of Appeal held that it had no jurisdiction anddid not call for objections on the merits from the respondents, itought not to have cast an obligation on the Commissioner ofElections to recount the votes and take remedial action. Besides,without hearing them it could not be said that a prima facie casehad been established of “electoral misconduct” by his officers.
The Court of Appeal also failed to consider the implications of itsfindings that the appellant’s allegations were not against theCommissioner of Elections but only against his officers.
Undoubtedly, a difficult and important question of 220Constitutional interpretation (and not merely application) arose,affecting several writ applications, and that should have beenreferred to this Court under and in terms of Article 125 of theConstitution.
Special leave to appeal was granted on the questionwhether the Court of Appeal had erred in holding that it had nojurisdiction.
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The interpretation of the relevant provisions must com-mence on the basis that “Election Commission” means the yet-to-be-established Election Commission, and not its officers, and not 230the Commissioner of Elections, and that the “Commissioner ofElections” means the Commissioner and not his officers -unless,of course, the language or the context expressly or by necessaryimplication requires a contrary interpretation.
Learned President’s Counsel for the petitioner contendedthat Article 104H would apply only in relation to any matter thatmay arise in the exercise by the Commission of the powers con-ferred on it, and that it did not apply to any exercise of power bythe Commissioner of Elections. Any attempt to treat Article 104Has applicable to this case required that the words “by the 240Commission” be replaced by the phrase “by the Commissioner ofElections”. He pointed out that any such substitution was notauthorised by any provision of the 17,h Amendment, and that whatsection 27(1) required and permitted was the exact opposite,namely, the substitution of “Election Commission” for“Commissioner of Elections.”
Article 104H must be read with Article 104A(a). Readtogether, those two provisions manifest a clear intention to trans-fer to this Court a part of the writ jurisdiction of the Court ofAppeal, namely, in relation to any matter arising in the exercise by 250the Election Commission of its powers, and also to make deci-sions, directions and acts of the Election Commission final andimmune from judicial review except under Articles 104H, 126(1)and 130. Ex facie, neither Article applies to acts and omissions ofthe Commissioner of Elections, or of his officers.
To put it another way, Article 104H effects an ouster of thejurisdiction of the Court of Appeal only upon an exercise of thepowers of the Election Commission, by the Commission itself.Article 104H does not apply to an exercise of the powers of theElection Commission by any other person. The words “by the 260Commission” are words of limitation. If Parliament had intendedthat Article 104H should also apply to an exercise of those pow-ers by the Commissioner of Elections, it would have removedthose words of limitation, so that Article 104H would have read:…
“ in relation to any matter that may arise in the exercise of the
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powers conferred on the Commission by the Constitution or byany other law”, omitting the words “by the Commission” and “onit.”
Likewise, Article 104A(a) refers to “any decision, directionor act of the Commission” and not to “any decision, direction oract in the exercise of the powers of the Commission”. The plainmeaning of those provisions is that there is an ouster of the juris-diction of the Court of Appeal only' in respect of an exercise ofpower by the Election Commission itself.
It is necessary, however, to asertain whether there is anyother contrary provision, express or implied, to the effect that theacts, decisions, etc, of the Commissioner of Elections shall bedeemed to be those of the Election Commission. As learnedPresident’s Counsel for the appellant submitted, section 27(1) ofthe 17th Amendment only authorises the substitution, in legisla-tion, of “Election Commission” for “Commissioner of Elections”,and not vice versa. From that it cannot be inferred that Parliamentintended the opposite, namely, the substitution of “Commissionerof Elections” for “Election Commission” in Article 104H, becauseexpressio unius exclusio alteris. Indeed, section 27(1) was notintended to be a transitional provision: it was a substantive provi-sion, applicable to the period after the constitution of the ElectionCommission, transferring to the Election Commission the powersvested in the Commissioner of Elections under various existinglaws. It does not follow that when the Commissioner of Electionsexercises those powers during the transitional period his actsbecome the acts of the Election Commission. Ex hypothesi, actsof officers of the Commissioner of Elections are not acts of theElection Commission.
There are many functions performed under the LocalAuthorities Elections Ordinance (and other election laws) by vari-ous officers of the Commissioner of Elections or appointed byhim. Thus the annual distribution and collection of enumerationforms, and the preparation, publication, correction and certifica-tion of electoral lists, are basic functions. To accept the respon-dents’ submission would mean that the mala fide failure of suchan officer to issue or collect an enumeration form, or to publish,correct or certify an electoral list, would be deemed to be an act
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or omission of the Commissioner of Elections, and therefore ofthe Election Commission; and that the writ jurisdiction in respectof such matters would be exercisable only by the Supreme Courtwithin the short time limits prescribed by Article 104H(2). In suchinstances, during the transitional period, the Court of Appeal hasjurisdiction.
Section 27(2) is a transtitional provision which enables the 310Commissioner of Elections during that period to exercise and per-form the powers and functions (a) of the office of Commissionerof Elections (under pre-existing laws), and (b) of the ElectionCommission. While section 27 (2) empowers the Commissionerof Elections to exercise the powers of the Election Commission, itdoes not make such exercise, or deem such exercise to be, anexercise of power by the Election Commission. Article 1041-1(1)itself is a good example: it empowers the Supreme Court to exer-cise the writ jurisdiction of the Court of Appeal; but when it doesso, it is nevertheless an exercise of that jurisdiction by the 320Supreme Court, qua Supreme Court, and it can hardly be arguedthat when the Supreme Court does exercise that jurisdiction, thatwould be, or would be deemed to be, an exercise by the Court ofAppeal. Likewise in this case even if the Commissioner ofElections did exercise the powers of the Election Commission, itwas neverthless an exercise by the Commissioner of Elections.
What is more, in this case the appellant did not impugn anyexercise of power by the Commissioner of Elections. As the Courtof Appeal itself recognised, the impugned acts were the acts ofofficers of the Commissioner of Elections. Section 27(2) clearly 330has no application to such acts. But even if I were to assume thatthe acts of those officers may be regarded as an exercise of thepowers of the Commissioner of Elections, neverthless they werepowers under pre-existing law – the Local Authorities ElectionsOrdinance – and hence there was no exercise of the powers ofthe Election Commission.
Section 27(3) is a transitional provision applicable to pend-ing actions. The fact that pending actions by or against theCommissioner of Elections were to continue in the name of theElection Commission has no bearing on the distinct question as 340to the court in which new actions should be instituted. Perhaps it
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might be legitimate to infer that in a new action the proper partyshould be the Election Commission, but neverthleless that doesnot mean that the proper court is the Supreme Court. Indeed,section 27(3) requires that pending actions should continue in thesame court, so that the ouster clauses are inapplicable to pend-ing actions, and should be equally inapplicable to new actionsinstituted before the Election Commission is constituted, as sec-tion 27(3) is quite consistent with the ouster clauses being applic-able only to the acts of the Election Commission itself.
Section 27(4) applies to “decisions, orders and rulings”made or given by the Commissioner of Elections. The appellant’spetition did not involve any decision, order or ruling of theCommissioner of Elections, but only acts and omissions of vari-ous officers. That provision has no relevance to this appeal.
To sum up, the subject-matter of the appellant’s writ appli-cation to the Court of Appeal was mainly, if not entirely, in respectof the alleged acts (and omissions) of officers of theCommissioner of Elections, and not in relation to decisions, direc-tions, acts, orders or rulings of the Commissioner of Elections, Hedid not allege any exercise (by those officers or by theCommissioner of Elections) of the powers of the ElectionCommission. Those acts could not have been regarded ex facieas an exercise Qf the powers of the Commissioner of Elections,and/or of the Election Commission. Accordingly, upon the materi-al available, namely as set out in that application, Articles 104Aand 104H read with section 27 of the 17th Amendment did notoust the writ jurisdiction of the Court of Appeal, and the prelimi-nary objection should have been rejected. I therefore allow theappeal and set aside the order of the Court of Appeal, and directthe Court of Appeal to entertain, hear and determine the appel-lant’s application after giving all the respondents the opportunityof filing their objections. The appellant will be entitled to costs inboth Courts in a sum of Rs 30,000/- payable by the State.
Before concluding this judgment, I must refer to the provi-sions of Article 154G(2), in Chapter XVIIA of the Constitution:
“No Bill for the amendment or repeal of the provisions ofthis Chapter or the Ninth Schedule shall become law unless such
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Bill has been referred by the President, after its publication in theGazette and before it is placed on the Order Paper of Parliament, 380to every Provincial Council for the expression of its views there-on, within such period as may be specified in the reference…”
The 171” Amendment amends one provision (Article 154R)of Chapter XVIIA as well as one provision (see section 23) of theNinth Schedule, but no reference appears to have been made forthe purpose of enabling every Provincial Council, as part of thelegislative process for the amendment of that Chapter, to expressits views thereon – An Act to amend the Greater ColomboEconomic Commission Law, No. 4 of 1978,W. In holding thatthere has been no ouster of the writ jurisdiction of the Court of 390Appeal, I express no opinion as to whether or not Articles 104Aand 104H have “become law” in terms of Article 154G(2).
ISMAIL, J.-Iagree
EDUSSURIYA, J.-Iagree
YAPA, J.-Iagree
WIGNESWARAN, J.-Iagree
Appeal allowed.