JEGAN AND ANOTHER vs. INSPECTOR GENERAL OF POLICE AND OTHERS

035-SLLR-SLLR-2009-V-1-JEGAN-AND-ANOTHER-vs.-INSPECTOR-GENERAL-OF-POLICE-AND-OTHERS.pdf


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Jegan and another vs. Inspector General of Police and others
417
JEGAN AND ANOTHERVS
INSPECTOR GENERAL OF POLICE AND OTHERS
SUPREME COURT
SHIRANEE TILAKAWARDENE. J.
MARSOOF. PC. J
SRIPAVAN, J
SC FR 21/2008
OCTOBER 28, 2009
Fundamental Rights – Provincial Councils Elections Act No. 2 of 1988- Section 92 – Complaint against Provincial elections – Two separateremedies available? – Constitutional right guaranteed under the Con-stitution and Election Petition.
The petitioner sought a declaration based on alleged acts of rampantviolation, acts of intimidation and acts leading to fear psychosis in theProvincial Councils elections held in the Batticaloa district. Therespondents objected to the application on the basis that the onlynecessary remedy which could be invoked by the petitioners was interms of Section 92 of the Provincial Councils Elections Act.
On The Preliminary objection taken,
Held:
Every citizen whether he or she is a candidate or a voter isempowered in terms of the Fundamental Rights Chapter of theConstitution to seek relief for his or her own personal benefit, inrespect of an executive or administrative act or omission whichresulted in a violation of constitutionally guaranteed rights.
The range of remedies available would extend to declarations ofsuch violations in terms of the Constitution, directions on thePolice and Election Authorities with regard to their specific action orinaction and or commensurate award of compensation.
In terms of the Provincial Councils Elections Act a specificcandidate whose election results have been materially affected, is
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[2009] 1 SR1L.R.
enabled to seek remedy under the specific provisions of Section 92within the limitations prescribed.
Undoubted safeguard contained in Section 92 and the other relatedsections in the Provincial Councils Elections Act which protect thefairness of elections do not detract or preclude the constitutionaljurisdiction of the Supreme Court. This is a right that must berecognized, cherished, safeguarded and upheld.
APPLICATION under Article 126 on a preliminaiy objection taken.
J. C. Weliamuna with Pulasthi Hewamanne for petitioner
Ms. Indika Demuni de Silva DSG for respondents
Cur.adv.vult.
March 30, 2009
SHIRANEE TILAKAWARDANE. J.
A preliminary objection was taken by Mrs. De Silva,D. S. G., that the application of the petitioners should bedismissed in limine on the following grounds:-
That in its pith and substance, the petitioners had soughta declaration based on alleged acts of rampant violence,acts of intimidation and acts leading to fear psychosisin the Provincial Council elections held in the Batticaloadistrict. If credence is to be given to this application, thenthe only remedy available to the petitioners, would be toseek recourse under Section 92 of the Provincial CouncilsElection Act No. 2 of 1988 to seek a declaration that theelection of the aforesaid district be declared null andvoid, in other words, to seek an avoidance of the saidelection. This objection she stated was substantiatedon the several pleadings contained in paragraphs 8 and18 of the petition. Her argument was therefore that theonly necessary remedy which could be invoked by thepetitioners was in terms of Section 92 of the said Act. Evenif the avoidance was to be limited to a single member,
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Jegan and another vs. Inspector General of Police and others
(Shimnee. TUakawardane, J.)
419
this was the only and limited remedy that was availableto the petitioner.
(2) That in any event, under the Provincial Councils Elec-tion Act No. 2 of 1988 the Court could not grant reliefto the petitioners and make findings against the respon-dents without setting aside the entire election. This wouldundoubtedly affect those who were duly elected asmembers as any such findings made would be adverseto their interest. They are not parties to this application,but would be necessary parties who would be directlyaffected by the avoidance of the said election. Under thecircumstances the application cannot be entertained bythis Court.
Having considered the submissions made by both DeputySolicitor General and the counter submissions made bylearned Counsel Mr. Weliamuna appearing for the petitioners,this Court finds that two separate remedies are available to aparty who complains about the Provincial elections. The firstis under the Provincial Councils Election Act No. 2 of 1988 andthe second is by invoking the Fundamental Rights Chapterof the Constitution. These remedies which are available aredistinctive and different. The reliefs prayed for and claimedare also separate, different and distinct.
A citizen, indeed every citizen of Sri Lanka, whether heor she is a candidate, or a voter, is empowered in terms ofthe Fundamental Rights chapter of the Constitution to seekredress for his or her own personal benefit, in respect of anexecutive or administrative act or omission which resulted ina violation of constitutionally guaranteed rights. The rangeof remedies available would extend to declarations of suchviolations in terms of the Constitution, directions on the Policeand Election Authorities with regard to their specific action orinaction and/or commensurate award of compensation.
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[2009] 1 SRI UR.
It is to be understood that in terms of the Provincial Coun-cils Election Act No. 2 of 1988 as amended, a specific can-didate whose election results have been materially affectedis enabled to seek remedy under the specific provisions ofsection 92, of the Provincial Councils Election Act No. 2 of1988 as amended, within the limitations prescribed underthe scope and ambit of this Section. Indeed, this Court isappreciative of the fact that the fundamental rights applicationof the petitioners invokes a specific constitutional rightleading to a constitutional remedy which is guaranteed by theconstitutional jurisdiction vested in the Supreme Court.
We, therefore hold that undoubted safeguard containedin Section 92 and the other related Sections of theProvincial Councils Election Act which protects thefairness of elections do not detract or preclude theconstitutional jurisdiction of this Court.
Indeed, every citizen who is prevented in any mannerwhatsoever from exercising his or her right to vote, which isafter all an integral part of his or her freedom of expressionand choice is entitled to claim an unimpeded passage, free ofviolence and/or other unlawful incursion to cast his or herballet in a free and unobstructed manner. This is a right thatmust be recognized, cherished, safeguarded and upheld bythis Court.
We accordingly overrule and dismiss the preliminaryobjections of the respondents.
The main argument is fixed for 15.02.2010.
MARSOOF -1 agree.
SRIPAVAN. J. -1 agree.
Preliminary objection over ruled Main Matter set down forargument