020-SLLR-SLLR-1999-V-1-KARUNATHILAKA-AND-ANOTHER-v.-DAYANANDA-DISSANAYAKE-COMMISSIONER-OF-ELECTI.pdf
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Karunathilaka and Another v. Dayananda Dissanayake,
Commissioner of Elections and Others
157
KARUNATHILAKA AND ANOTHERv.
DAYANANDA DISSANAYAKE,COMMISSIONER OF ELECTIONS AND OTHERS(Case No. 1)
SUPREME COURTG. P. S. DE SILVA, CJ.,
FERNANDO, J. ANDGUNASEKERA, J.
S.C. APPLICATION NO. 509/98DECEMBER 04 AND 07, 1998
Fundamental rights – Provincial Councils Election – Date of the poll – S. 22 (1)of the Provincial Councils Elections Act – Cancellation of the date by EmergencyRegulation – Articles 12 (1) and 14 (1) (a) of the Constitution.
The period of office of the Central, Uva, North-Central, Western and SabaragamuwaProvincial Councils came to an end in June, 1998. The Commissioner of Elections(the 1st respondent) fixed the nomination period in terms of section 10 of theProvincial Councils Elections Act, No. 2 of 1988. After the receipt of nominationswhich concluded on 15.07.1998 each returning officer fixed 28.8.98 as the dateof the poll by a notice under section 22 (1) of the Act. The issue of postal ballotpapers in terms of section 24 of the Act read with Regulation 10 of the secondschedule to the Act was fixed for 4.8.98. But by telegram dated 3.8.98, therespective returning officers suspended the postal voting without adducing anyreason therefore. The very next day on 4.8.98 the President issued a Proclamationunder section 2 of the Public Security Ordinance (PSO) bringing the provisionsof Part II of the Ordinance into operation throughout Sri Lanka and made anEmergency Regulation under section 5 which had the legal effect of cancellingthe date of the poll. Thereafter, the 1st respondent took no steps to fix a freshdate for the poll in terms of section 22 (6) of the Act, even after 28.8.98. In themeantime the term of office of the North-Western Provincial Council came to anend and the date of the poll for that Council was fixed for 25.1.99.
Held:
The making of the Proclamation and the Regulation as well as the conductof the respondents in relation to the five elections, clearly constitute"executive action" and the court would ordinarily have jurisdiction under
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Article 126 of the Constitution. That jurisdiction is not ousted by Article35. Article 35 only prohibits the institution of legal proceedings against thePresident while in office. It does not exclude judicial review of an impugnedact or omission against some other person who does not enjoy immunityfrom suit but relies on an act done by the President in order to justifyhis conduct.
In the exercise of its jurisdiction under Article 126 the court has the power,notwithstanding the ouster clause in section 8 of the PSO, to review thevalidity of the impugned regulation.
The impugned regulation is not a valid exercise of the power under section5 of the PSO. It is not an Emergency Regulation. It has, rather, thecharacter of an order purporting to suspend notices lawfully issued underthe Act. Such an order is not authorized by law. In any event, the impugnedregulation cannot be sustained as being for a purpose set out in section5 of the PSO as the petitioner had established that prima facie upto theend of July, 1998, there was no known threat to national security, publicorder, etc., and the respondents failed to show that even in August, 1998,there was any such threat.
The suspension of the issue of postal ballot papers in which the 1strespondent acquiesced was unlawful, arbitrary and not bona fide; it wasdone with knowledge that the impugned proclamation and regulation wouldbe made the next day and for a collateral purpose; whether the impugnedregulation was valid or not the 1st respondent had the power to appointa fresh date for the poll in terms of section 22 (6) of the Provincial CouncilsElections Act. He failed to exercise that power. In the meantime the dateof the poll for the North-Western Provincial Council was fixed for 25.1.1999whereby the voters of the other five provinces were treated less favourably.In the circumstances Article 12 (1) was infringed.
The respondents also infringed the petitioner's rights under Article 14 (1)(a) of the Constitution. The freedom of "speech and expression" guaranteedby that Article should be broadly construed to include the exercise of theright of an elector to vote at the election.
Per Fernando, J.
“The silent and secret expression of a citizen's preference between onecandidate and another by casting his vote is no less an exercise of the freedomof speech and expression than the most eloquent speech from a publicplatform."
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Cases referred to:
Joseph Perera v. AG (1992) 1 Sri LR 199, 230.
Wickremabandu v. Herath (1990) 2 Sri LR 348, 361, 374.
Silva v. Bandaranayake (1997) 1 Sri LR 92.
Weerasinghe v. Samarasinghe (1966) 68 NLR 361.
APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonesekera with Suranjith Hewamanne, J. C. Weliamuna andMs. Krishanthi Pinto-Jayawardena for the petitioners.
K. C. Kamalasabayson, PC, SG with U. Egalahewa, S. C. Viran Corea, SC andM. Gopallawa, SC for the respondents.
Cur. adv. vult.
January 27, 1999.
FERNANDO, J.
This application is a sequel to the failure to hold elections for theProvincial Councils of the Central, Uva, North-Central, Western andSabaragamuwa provinces.
The five-year terms of office of those Provincial Councils came toan end in June, 1998, although not on the same day. Each provinceconsists of two or more administrative districts, and each such districtconstitutes an electoral area for the purpose of elections to theProvincial Council of that province. Section 7 of the Provincial CouncilsElections Act, No. 2 of 1988, (the Act), requires the Commissionerof Elections to appoint a returning officer for each such district.Section 10 provides: 1
(1)Within one week of the dissolution of a Provincial Councilby reason of the operation of Article 154E of the Constitution… the Commissioner shall publish a notice of his intentionto hold an election to such Council. The notice shall specify[the "nomination period"] during which such nomination papers
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shall be received by the returning officer of each adminis-trative district in the province. . .
The nomination period shall commence on the fourteenth dayafter the publication of the notice . . . and expire … on thetwenty-first day after the day of publication of such notice."
Notices under section 10 of the Act were duly published in June,1998. The nomination periods for two elections expired on 3.7.98, forthe third on 11.7.98, and for the other two on 15.7.98, and thenomination processes had been completed by those dates. All fiveelections being contested, section 22 (1) required every returningofficer, "as soon as may be after the conclusion of the [nomination]proceedings", to publish a notice specifying the date of poll – "beinga date not less than five weeks or more than eight weeks from thedate of publication of the notice" – as well as other particulars relatingto the duly nominated candidates and the situation of the pollingstations. Notices in respect of all the districts – twelve innumber – were published on 15.7.98, fixing 28.8.98 as the date ofpoll.
It appears from the above statutory provisions that the Act wasintended to ensure a speedy election, within about three months ofdissolution. That object would have been achieved had the poll beentaken on 28.8.98. But that did not happen.
In this application the two petitioners complain that the failureof the 1st respondent, the Commissioner of Elections (theCommissioner), and the 2nd to 13th respondents (the returning officersof the twelve districts) to hold elections to the five Provincial Councils,on and after 28.8.98, was an infringement of their fundamental rightsunder Articles 12 (1) and 14 (1) (a).
Before that date of poll was fixed, the 1st respondent hadsummoned a meeting of all recognized political parties. According tothe minutes of that meeting, held on 25.6.98, the 1st respondent stated
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that “elections to Provincial Councils will be held on a single day asmentioned at the previous meeting", and the Inspector-General ofPolice stated that "necessary security will be provided for the electionand that he is working out a scheme to fulfil these requirements".He made no reference to any difficulty in providing security, whetherthe five elections were simultaneous or staggered.
The 1st respondent, in his affidavit filed in these proceedings, didnot allege any change in the security situation, or any difficulty inobtaining or providing security for the poll. On the other hand, insupport of their contention that security was not a problem during therelevant period, the petitioners pointed out that the Summit of theSouth Asian Association for Regional Co-operation was held in Colombo,with the participation of the Heads of Member States, during the lastweek of July.
I must refer at this stage to another important matter. The Actprovides for postal voting. Regulation 10 of the Postal Voters'(Provincial Councils Elections) Regulations, 1988, contained in thesecond schedule to the Act, requires every returning officer “not laterthan ten days after the last day of the nomination period" to givenotice of the time and place at which he would issue postal ballotpapers.
Regulation 17 provides that every returning officer "shall,immediately on receipt of a [postal ballot] before the close of the poll,place it unopened in the postal voters' ballot box"; and Regulation19 provides for the counting of postal votes "as soon as possible afterthe close of the poll". There is thus no provision – and, indeed, noneed for provision – for a separate date of poll in respect of postalvoting. The postal voting process is ancillary to the poll itself, andwould end with the poll, whether taken on the date originally fixedor on some subsequent date. The Regulations do not expresslyauthorize the postponement or cancellation of the postal votingprocess. That is unnecessary: if the original date of poll is postponed,Regulation 17 ensures that the postal voting process would continue
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until the close of the poll on the new date; and if the poll itself isvalidly cancelled, that would automatically abort that process.
It is not disputed that all the returning officers had given noticethat postal ballot papers would be issued on 4.8.98. The petitionersproduced one such notice dated 23.7.98. If all the notices had beenissued on that date, it would mean that in respect of three ProvincialCouncils notices had been issued more than ten days after the lastday of the nomination period. Nevertheless, that would have left 24days for the completion of the postal voting process. The petitionersaverred that "by telegram dated 3.8.98, the respective returning officerssuspended the postal voting that was fixed for 4.8.98 . . . and noreasons were given for such suspension”, and this the respondentsadmitted. A copy of one such telegram sent by the AssistantCommissioner of Elections, Kalutatra, was produced. Our attention wasnot drawn to any provision of the Act or of the Regulations whichempowered the Commissioner, an Assistant Commissioner, orreturning officers to suspend the issue of postal ballot papers; or torestart that process after suspension. But even if such provisions canbe implied, that suspension, at that point of time, made it extremelydifficult to restart the postal voting process in time to complete it by28.8.98. It is most unsatisfactory that neither the 1st respondent, northe 2nd to 13th respondents, have explained to the public and to thisCourt, why the issue of postal ballot papers was suspended. Article103 of the Constitution guarantees to the Commissioner of Electionsa high degree of independence in order to ensure that he may dulyexercise – efficiently, impartially and without interference – theimportant functions entrusted to him by Article 104 in regard to theconduct of elections, including Provincial Council elections. But theconstitutional guarantee of independence does not authorizearbitrariness. That guarantee is essential for the Rule of Law, andone corollary of independence is accountability. Accordingly, theCommissioner could not withhold the reasons for his conduct – justas the constitutional guarantee of independence of the Judiciarydoes not dispense with the need to give reasons for judgments.
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The very next day, on 4.8.98, HE the President issued aProclamation under section 2 bringing the provisions of Part II of thePublic Security Ordinance (PSO) into operation throughout Sri Lanka,and made the following Regulation (the "impugned Regulation") undersection 5 :
"For so long, and so long only, as Part II of the Public SecurityOrdinance is in operation in a province for which a ProvincialCouncil specified in Column I of the Schedule hereto has beenestablished, such part of the Notice under section 22 of theProvincial Councils Elections Act, No. 2 of 1988, published in theGazette specified in the corresponding entry in Column II of theSchedule hereto, as relates to the date of poll for the holding ofelections to such Provincial Council shall be deemed, for allpurposes, to be of no effect."
The previous Proclamation under section 2, made one monthbefore, had brought the provisions of Part II of the PSO into operationin the Northern and Eastern provinces and in some parts only of theother seven Provinces : namely, in specified parts of seven (out ofthe seventeen) districts in those seven provinces. Indeed, it was thePetitioners' contention – which was not disputed – that for aconsiderable period before August, 1998, the Proclamations made,from time to time, under section 2 applied mainly to those twoprovinces, and not to the whole of Sri Lanka. The petitioners alsoaverred that the 1994 Presidential Election had been held while asimilar Proclamation had been in force.
The learned Solicitor-General stated during the oral argument thatthe impugned Emergency Regulation was the only one made pursuantto the extension of the emergency to the whole of Sri Lanka.
The poll was not taken on 28.8.98. It must be noted that theimpugned Regulation did not purport to cancel the five electionsaltogether, but only to "deem to be of no effect" – in effect, to cancel- the particular date of poll (namely, 28.8.98) already fixed by notices
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under section 22. It invalidated or suspended those notices, but didnot purport to override, amend or suspend any provision of theAct or of the Regulations, and it left untouched the provisions ofsection 22 (6) :
"(6) Where at an election of members of a Provincial Councilfrom the administrative districts within the Province for which thatProvincial Council is established, due to any emergency or unfore-seen circumstances the poll in any such administrative districtcannot be taken on the day specified in the notice published undersubsection (1), the Commissioner [of Elections] may, by noticepublished in the Gazette, appoint another day for the taking ofthe poll in such administrative district and in every otheradministrative district within that province, such other day beinga day not earlier than the fourteenth day after the publication ofthe notice in [the] Gazette." [emphasis added]
Although speedy elections were, undeniably, a matter of paramountpublic importance, the 1st respondent did nothing, on and after 4.8.98,to fix another date of poll.
The petitioners filed this application on 3.9.98, alleging that:
the Proclamation was an unwarranted and unlawful exercise ofdiscretion contrary to the Constitution, not made bona fide orin consideration of the security situation in the country or thefive provinces, but solely in order to postpone the five elections;
the Proclamation and the impugned Regulation constituted anunlawful interference with and usurpation of functions vestedin the Commissioner of Elections, under the Constitution andthe Act, and compromised his constitutionally guaranteedindependent status;
the impugned Regulation was contrary to Article 155 (2) of theConstitution, because it had the legal effect of overriding andsuspending the provisions of the Constitution relating to –
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the continued existence of the five Provincial Councils,
the franchise, and
Articles 12 (1) and 14 (1) (a); and
the conduct of the 1st to 13th respondents in not holding thesaid five elections was "unreasonable, arbitrary, contrary tolaw, for a collateral purpose, discriminatory, and in violation ofArticle 12 (1) and Article 14 (1) (a) of the Constitution".
They prayed for a declaration that their fundamental rights underArticles 12 (1) and 14 (1) (a) had been violated, and for an orderdirecting the 1st to 13th respondents to nominate a fresh date forthe five elections and to take steps to hold those elections in termsof section 22 of the Act forthwith. Although they prayed for costs theydid not ask for compensation.
At this stage I must mention two important events which occurredthereafter, in or about November, 1998: the Provincial CouncilsElections (Special Provisions) Bill (the Bill) was placed on the OrderPaper of Parliament, and the Provincial Council of the North-Westernprovince was dissolved upon the expiration of its five-year term ofoffice.
The Bill sought to achieve two objectives. Clause 2 purported tovest in the Commissioner the duty, within four weeks of the date ofcommencement of the Bill when enacted into law, to appoint a dateof poll for the said five elections "having regard to the periods specifiedin section 22 (1) (c)" of the Act, "in lieu of the date of poll specifiedin the Notice published under section 22". Clause 3 purported toempower the Secretary of a recognized political party or the groupleader of an independent group to substitute, in place of the nameof any candidate appearing in an already completed and acceptednomination paper, the name of another person with his consent – butwithout the consent of, and even without notice to, the formercandidate.
The Bill contained no provision which would have enabled theCommissioner or the returning officers, notwithstanding the lapse of
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more than ten days after the last day of the nomination periods, togive notice afresh of the time and place of issue of postal ballot papers.It is true that Regulation 10 (2) does provide for a “subsequent issue"of postal ballot papers, but that cannot be done unless an initial issue(ie of the identical ballot papers) had already taken place underRegulation 10 (1). And even if an initial issue had taken place, the“subsequent issue" contemplated by Regulation 10 (2) is an issue ofidentical ballot papers, and not of “amended" ballot papers.
This Court, in its determination made on 30.11.98, held that bothclauses were inconsistent with, inter alia, Article 12 (1) of theConstitution. In coming to that conclusion, this Court found that theAct already made provision, in section 22 (6), for fixing another datefor the poll, and went on to consider the impact of the Bill on thatprovision:
"If for any reason, which falls within the ambit of "any emergencyor unforeseen circumstances", the poll cannot be taken on the dayspecified by the returning officer under section 22 (1), section22 (6) gives the Commissioner the power to appoint another day.It is clear that he may do so either before the appointed day, oron or after the appointed day; for instance, if one week beforethat day widespread floods (or a serious epidemic) make it evidentthat a proper poll cannot be held on that day, or if on that day,any "emergency or unforeseen circumstances" prevent the takingof the poll. Here, on 4.8.98, the Commissioner was faced with anEmergency Regulation purporting to suspend the notices issuedunder section 22 in relation to the date of poll. If the Proclamationhad ceased to be operative before 28.8.98 (in all five provincesor even in one province) – by virtue of revocation, or disapprovalby Parliament, or otherwise – then some or all of those noticeswould once again have become unquestionably operative, and thepoll could have been taken on 28.8.98. But that did not happen,and ex facie the Proclamation continued to be operative: and sothe poll was not taken on the due date. As far as the Commissionerwas concerned, on and after 28.8.98 the position (whether theRegulation was valid or not) was that the poll had not been takenon the due date because of "emergency or unforeseen
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circumstances". Section 22 (6) was therefore applicable. He hadtherefore the power to appoint another day for the poll. And if hehad done so, a poll would have been taken on the basis of (i)the notice which he then issued under section 22 (6), which noticecould not have been affected in any way by the EmergencyRegulation previously made on 4.8.98, and (ii) the nominationsalready published in the "nominations" part of the notices issuedby the returning officers on 15.7.98, which part the EmergencyRegulation had not touched." [emphasis added]
From the learned Solicitor-General’s written submissions filed in thisapplication, it appears that he does not agree with the conclusion that"as far as the Commissioner was concerned, on and after 28.8.98the position (whether the Regulation was valid or not} was that thepoll had not been taken on the due date because of ’emergency orunforeseen circumstances' [and that] he had therefore the power toappoint another date for the poll”. The learned Solicitor-Generalcontended that the Commissioner could exercise his power onlyif the Proclamation and Regulation are valid: if not, "section 22 (6)cannot be invoked".
I am unable to accept that contention because it requires theaddition of restrictive words to section 22 (6), so as to make it read:
"Where . . . due to any emergency or unforeseen circumstances,arising otherwise than from the unlawful [or invalid or improperacts of any person, the poll… cannot be taken on the day specified… the Commissioner may . . . appoint another day . .
The language of section 22 (6) is plain and unambiguous. Theword “any”, used in relation to "emergency or unforeseencircumstances", is an unambiguously clear indication that all suchevents and circumstances are included, howsoever caused. There isno justification for restricting that provision in any way: it applieswhether the emergency or the unforeseen circumstances are theconsequence of natural causes or of human acts; and in regard to
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the latter, whether they are the acts of the Commissioner (or hisofficers), or of candidates (or their supporters), or of third parties.Likewise, the section makes no distinction between lawful andunlawful acts.
Even if there had been any ambiguity or uncertainty (and I amsatisfied that there is none), the context demands that a broader ratherthan a narrower interpretation be adopted. If the Commissioner hadpower to fix a new date only where the poll was not taken due toa lawful act, it would mean that in all other cases a fresh poll couldnot be taken: there would then be no election, and therefore no electedProvincial Council. That would render nugatory the provisions ofChapter XVII A, and especially Article 154 A, of the Constitution whichcontemplate the continued existence of elected Provincial Councils.Further, to accept an interpretation which would not permit the fixingof a new date, where unlawful acts prevented the taking of the pollon the date originally fixed, would be an open invitation for thedisruption of the poll – by the political thuggery of contestants, bythe terrorist acts of non-contestants, or by any other means. Again,if the Commissioner's officials deliberately destroyed the ballot papersand thereby prevented the poll, the Commissioner would be unableto fix a new date. To restrict the ambit of section 22 (6), as the learnedSolicitor-General suggests, would do violence to its language.
In my view, "any", "emergency" and "unforeseen circumstances",and the power of the Commissioner to fix a new date, must be giventhe widest construction which is reasonably possible, so as to enablean election to be held, and not a construction which would result inits indefinite postponement or cancellation.
The learned Solicitor-General's contention exposes a flagrantcontradiction in the 1st respondent's position. The 1st respondentaverred that the impugned Regulation was validly made under section5, and that upon its publication he "had no alternative but to refrainfrom taking any further steps towards the holding of the ProvincialCouncils elections". If indeed it was his position that he could exercise
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his power under section 22 (6) only if the Proclamation and theRegulation were valid, and if his honest view was that the Proclamationand the Regulation were valid, why did he not promptly fix a newdate? The conclusion is inescapable that the 1st respondent did notconsider whether the impugned Regulation was valid and what hispowers and duties were, but tamely acquiesced in the indefinitepostponement of those elections.
It is necessary at this stage to consider whether "may" in section22 (6) confers an unfettered and unreviewable discretion, or a powercoupled with a duty. Since Article 154A contemplates the continuedexistence of elected Provincial Councils, it follows that elections mustnot be delayed more than is really necessary. The power to fix anew date must therefore be exercised whenever the circumstancesdemand it, and especially where the taking of the poll is preventedby unlawful means. Had the 1st respondent refrained, initially, fromexercising his discretion because in his honest opinion he reasonablyconcluded that the prevailing circumstances did not permit a poll tobe taken, that would have been a proper exercise of discretion; buteven so, he would have been obliged, thereafter, to exercise hisdiscretion no sooner the circumstances changed. Here, the 1strespondent did not even consider, initially or at any subsequent stage,whether he should fix a new date. Instead he simply assumed thathe was bound to refrain from taking any further steps towards holdingProvincial Council elections. He persisted in his failure to fix a newdate, despite the determination of this Court dated 30.11.98, and whattranspired on 7.12.98, when judgment was reserved in this case:
"The Solicitor-General states that he would discuss with the 1strespondent the question of appointing another date for the takingof a poll in respect of these five elections in terms of section22 (6) . . . in the light of the determination of this Court . . . madeon 30.11.98."
We then made it clear that :
"There is no objection to the 1st respondent taking steps undersection 22 (6) while judgment has been reserved."
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That failure was the more serious because during the oral argumentcounsel stated that the term of office of the Provincial Council of theNorth-Western province had come to an end, and that the nominationprocess was under way. The date of poll has now been fixed for25.1.99, following – as the respondents' written submissionsstate – “the normal procedure in terms of the existing law". The resultis that an election will take place first in respect of that Council,dissolved nearly six months after the other five, although a new dateof poll has not even been fixed for the latter. Citizens resident in thefive provinces are thus being less favourably treated than those ofthe North-Western province, in respect of their right to vote.
The respondents have attempted to disclaim responsibility for thecontinuing failure to hold the elections to those five Provincial Councils.The written submissions filed on their behalf claim that “the petitioners'application is misconceived in law for the reason that their mainchallenge which is in respect of [the impugned Proclamation andRegulation, which] are totally unrelated to the functions of theCommissioner of Elections". It is argued that the impugned Regulationcompelled the 1st respondent “to refrain from taking any further steps",and that any action by the respondents contrary to the impugnedRegulation "would be dangerous and expose the people and the votersto unnecessary risks". And so, it is urged, "the respondents' actionin not proceeding with the election and thereby giving effect to [theimpugned Proclamation and Regulation] cannot infringe upon thefundamental rights of the petitioners".
That plea is misconceived both in law and in fact. TheCommissioner has been entrusted by Article 104 with powers, dutiesand functions pertaining to elections, and has been given guaranteesof independence by Article 103, in order that he may ensure thatelections are conducted according to law: not to allow elections tobe wrongfully or improperly cancelled or suspended, or disrupted, byviolence or otherwise. He was not entitled to assume that theimpugned Regulation was valid; and even if it was valid it was hisduty, in the exercise of his power under section 22 (6), to have fixeda new date on which – in his best judgment – a free and fair pollwould have been possible.
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Further, the undisputed facts establish that the 1st respondent wasnot acting independently. The learned Solicitor-General was unableto cite any statutory provision justifying the "suspension" of the issueof postal ballot papers even before the impugned Regulation wasmade. The respondents have not given any explanation for thatsuspension. It was therefore unlawful, arbitrary and not bona fide. Theydo not claim, and it is inconceivable, that it was a mere coincidencethat the 2nd to 13th respondents simultaneously decided tosuspend the issue of postal ballot papers on the eve of the impugnedRegulation; and there is no doubt that suspension was with the fullknowledge and approval of the 1st respondent. The irresistibleinference is that the respondents had foreknowledge of the impendingProclamation and Regulation. Had that decision been made bona fide,the 1st respondent's official files and documents would have containedthe official communications, between him and "outsiders", and betweenhim and his officers, leading up to that suspension, as well as hisreasoned decision in respect of that suspension; and there would havebeen a full and frank disclosure of all that material. However, therespondents have failed to produce a single document relating to thatsuspension, and that failure gives rise to a grave suspicion that thedecision was for a collateral purpose. That is not speculation. Clause3 of the Bill indicates what that collateral purpose probably was. Ifthe issue of postal ballot papers had taken place on 4.8.98, voterswould have received ballot papers and could have proceeded to casttheir vote. If the postal voting process had commenced in that way,substitution of candidates in the nomination papers would haverequired the drastic step of cancelling ballot papers already issued,and postal votes already cast. That would have been a seriousinterference with a pending election. The suspension of the issue ofpostal ballots would have facilitated the subsequent substitution ofcandidates without the need to cancel any part of the voting process,and it seems probable that was the purpose of that suspension.
That suspension had two unsatisfactory consequences. If the postalballot papers had been issued, postal voting could have taken place,on and after 4.8.98, without any fear of disruption: as postal votingdid not require public polling booths and the kind of security neededat polling booths. Consequently, if the impugned Regulation had
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ceased to be operative – as, for instance, if Parliament had refusedto approve the Proclamation, or if HE the President had revoked theRegulation – the poll could have taken place on 28.8.98. But thesuspension of the postal voting process virtually ensured that the pollwould not take place on that day. The respondents were thus indirectlyand partially responsible for the failure to take the poll on 28.8.98.Secondly, the 1st respondent had power to fix a new date, in termsof section 22 (6), with fourteen days' notice. But as a result of thesuspension of the postal voting process, it became impossible for the1st respondent to fix such an early date : he had to allow additionaltime for the postal voting process to commence afresh. Thus thatsuspension virtually compelled the postponement of the original poll,and also placed an unnecessary fetter on the 1st respondent'sdiscretion, compelling him to give at least five weeks' notice of anynew date of poll.
The 1st respondent therefore was at least partly responsible forthe failure to take the poll on 28.8.98; and was wholly responsiblefor the failure promptly to fix a new date, on and after 28.8.98, afterthat Regulation had spent its force.
I must now consider whether the conduct of the 1st respondentresulted in an infringement of the petitioners' fundamental rights.Learned counsel urged on their behalf, first, that there was aninterference with the franchise, contrary to Article 4 (e); that althoughArticle 4 (e) does not expressly refer to Provincial Council elections,that was because Provincial Councils were introduced onlysubsequently, by the Thirteenth Amendment; and that it must nowbe interpreted as applying to Provincial Council elections as well. Thelearned Solicitor-General contended that by the Thirteenth AmendmentParliament could have included Provincial Council elections, if it wishedto, and that the omission to do so was deliberate; and that in anyevent a violation of Article 4 (e) may not, by itself, amount to a violationof a fundamental right. It is unnecessary to rule on this issue in viewof my findings in relation to Articles 12 (1) and 14 (1) (a).
Learned counsel for the petitioners submitted that the right to voteis one form of "speech and expression" which Article 14 (1) (a)
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protects. The learned Solicitor-General urged, however, that there isa clear distinction between the franchise and fundamental rights; that"the franchise cannot be incorporated as a fundamental right ascontained in Chapter III"; and that the position is different under theAmerican Constitution because "specific provisions are containedtherein which convert the right to vote as a fundamental right".
When Article 14 (1) (a) entrenches the freedom of speech andexpression, it guarantees a// forms of speech and expression. Onecannot define the ambit of that Article on the basis that, accordingto the dictionary, "speech" means "X", and "expression" means "Y",and therefore “speech and expression" equals "X" plus "Y". Conceptssuch as "equality before the law", "the equal protection of the law",and "freedom of speech and expression, including publication",occurring in a statement of constitutionally entrenched fundamentalrights, have to be broadly interpreted in the light of fundamentalprinciples of democracy and the Rule of Law which are the bedrockof the Constitution. I
I find it unnecessary to refer to the various authorities cited,because in my view the matter admits of no doubt. A Provincial Councilelection involves a contest between two or more sets of candidatescontesting for office. A voter had the right to choose between suchcandidates, because in a democracy it is he who must select thosewho are to govern – or rather, to serve – him. A voter can thereforeexpress his opinion about candidates, their past performance in office,and their suitability for office in the future. The verbal expression ofsuch opinions, as, for instance, that the performance in office of oneset of candidates was so bad that they ought not to be re-elected,or that another set deserved re-election – whether expressed directlyto the candidates themselves, or to other voters – would clearly bewithin the scope of "speech and expression"; and there is also nodoubt that "speech and expression" can take many forms besides theverbal. But although it is important for the average voter to be ableto speak out in that way, that will not directly bring candidates intooffice or throw them out of office; and he may not be persuasiveenough even to convince other voters. In contrast, the most effectivemanner in which a voter may give expression to his views, with
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minimum risk to himself and his family, is by silently marking his ballotpaper in the secrecy of the polling booth. The silent and secretexpression of a citizen's preference as between one candidate andanother by casting his vote is no less an exercise of the freedomof speech and expression, than the most eloquent speech from apolitical platform. To hold otherwise is to undermine the very foun-dations of the Constitution. The petitioners are citizens and registeredvoters, and the 1st respondent's conduct has resulted in a grosslyunjustified delay in the exercise of their right to vote, in violation ofArticle 14 (1) (a).
Turning to Article 12 (1), the petitioners' contention was that thefailure to take the poll on 28.8.98 and the failure to fix a new dateresulted in a denial of equality before the law, and of the equalprotection of the law, to voters in the five affected provinces,vis-a-vis voters in other provinces. The respondents' reply was thatwhen the impugned Regulation came into operation the only electionsthat were to be held were for those five Councils; that no othercouncils were involved; and that therefore the postponement of thepoll affected all the Councils which were in the same class equallyand without discrimination. They conceded that "presently, [the] datefor election has been fixed in relation to [another] province which isnot referred to in [the impugned Regulation], This process hasfollowed the normal procedure in terms of the existing law".
Two distinct issues are involved: first, whether the impugnedRegulation was valid and the 1st respondent acted properly in nottaking steps to hold the elections on 28.8.98 (which I will considerlater in this judgment), and second, whether the 1st respondent'sconduct, in permitting the suspension of postal voting and in failingto fix a new date, was in violation of Article 12 (1). Even beforethe impugned Regulation was made, the 1st respondent acquiescedin, and probably authorized, the suspension of the issue of postal ballotpapers; that was unlawful, arbitrary and not bona fide; that was donewith knowledge that the impugned Proclamation and Regulation wouldbe made the next day, and for a collateral purpose; and he therebyplaced a fetter on his discretionary power under section 22 (6).Upon the impugned Regulation being made, the 1st respondent had
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power to act under section 22 (6) – whether that Regulation was validor not – but failed even to consider whether he had such power, andhe failed to exercise that power even after 28.8.98 (when theRegulation had ceased to be applicable), despite the decision andobservations of this Court; and even when it became evident thatelections would take place in the North-Western province before theelections in the other five provinces, thus denying to the voters inthose five provinces the protection of the law, by his failure to exercise,perform and discharge the powers, duties and functions reposed inhim by the Constitution and the Act, and treating them less favourablythan voters in the North-Western province. Article 12 (1) has beeninfringed.
The 1st respondent's aforesaid conduct in violation of Articles12 (1) and 14 (1) (a) was neither authorized nor justified by any legalprovision falling within the ambit of the restrictions permitted byArticle 15. Article 15 (2) permits certain restrictions on the freedomof speech only if prescribed by "law" (not including emergencyregulations), and Article 15 (7) permits restrictions on the right toequality and the freedom of speech if prescribed by "law” or byemergency regulations, "in the interests of national security, publicorder and the protection of public health, or for the purpose of securingdue recognition and respect for the rights and freedoms of others,or of meeting the just requirements of the general welfare of ademocratic society". The 1st respondent's conduct was not authorizedby any "law", and so Article 15 (2) was inapplicable. It was notauthorized by any emergency regulation, and so Article 15 (7) wasinapplicable.
Learned counsel for the petitioners strenuously contended that theimpugned Proclamation as well as the Regulation were ultra vires.He urged that the Proclamation had been made for the sole purposeof postponing elections; the fact that no other Emergency Regulationhad been made pursuant to that Proclamation proved that it had beenissued only to enable that Regulation to be made; both were partof one scheme, to postpone these five elections; and that wasconfirmed by the failure of the respondents to produce any materialsuggesting that the Proclamation and the Regulation had been madefor any lawful purpose, connected with considerations of nationalsecurity or public order.
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In his affidavit, the 1st respondent pleaded that the impugnedRegulation could not be questioned by virtue of the PSO. The learnedSolicitor-General further submitted that since HE the President couldnot be made a party by virtue of Article 35, and since the petitionershad not cited as respondents any other persons who could answerthe allegations pertaining to the vires of the impugned Proclamationand Regulation, this Court should make no pronouncement pertainingto their validity. In any event, he urged, the holding of elections couldhave affected national security.
The making of the Proclamation and the Regulation, as well asthe conduct of the respondents in relation to the five elections, clearlyconstitute "executive action", and this Court would ordinarily havejurisdiction under Article 126. The question is wheher that jurisdictionis ousted by reason of Article 35, or the failure to join necessaryparties, or any relevant ouster clause.
The immunity conferred by Article 35 is neither absolute nor perpetual.While Article 35 (1) appears to prohibit the institution or continuationof legal proceedings against the President, in respect of all acts andomissions (official and private), Article 35 (3) excludes immunity inrespect of the acts therein described. It does so in two ways. First,it completely removes immunity in respect of one category of acts(by permitting the institution of proceedings against the Presidentpersonally); and second, it partially removes Presidential immunity inrespect of another category of acts, but requires that proceedings beinstituted against the Attorney-General. What is prohibited is theinstitution (or continuation) of proceedings against the President. Article35 does not purport to prohibit the institution of proceedings againstany other person, where that is permissible under any other law. Itis also relevant that immunity endures only "while any person holdsoffice as President". It is a necessary consequence that immunityceases immediately thereafter; indeed, it would be anomalous in theextreme if immunity for private acts were to continue. Any lingeringdoubt about that is completely removed by Article 35 (2), whichexcludes such period of office, when calculating whether anyproceedings have been brought within the prescriptive period. Theneed for such exclusion arises only because legal proceedings can
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be instituted or continued thereafter. If immunity protected a Presidenteven out of office, it was unnecessary to provide how prescriptionwas to be reckoned.
I hold that Article 35 only prohibits the institution (or continuation)of legal proceedings against the President while in office; it imposesno bar whatsoever on proceedings (a) against him when he is nolonger in office, and (b) other persons at any time. That is aconsequence of the very nature of immunity: immunity is a shield forthe doer, not for the act. Very different language is used when it isintended to exclude legal proceedings which seek to impugn the act.Article 35, therefore, neither transforms an unlawful act into a lawfulone, nor renders it one which shall not be questioned in any Court.It does not exclude judicial review of the lawfulness or propriety ofan impugned act or omission, in appropriate proceedings against someother person who does not enjoy immunity from suit; as, for instance,a defendant or a respondent who relies on an act done by thePresident, in order to justify his own conduct. It is for that reasonthat this Court has entertained and decided questions in relation toemergency regulations made by the President (see Joseph Pererav. AG,m Wickremabandu v. Herath,‘21 and Presidential appointments(see Silva v. Bandaranayake,{3)). It is the respondents who rely onthe Proclamation and Regulation, and the review thereof by this Courtis not in any way inconsistent with the prohibition in Article 35 onthe institution of proceedings against the President.
As for the alleged failure to join the "proper" respondents, thelearned Solicitor-General submitted that the petitioners should havemade responsible officers of the "defence establishment" respondents,because they alone could produce the necessry material on the basisof which the Proclamation and Regulation were made; and therespondents "could never have placed any material before Court onmatters of public security".
In fundamental rights applications, the proper respondents (besidethe Attorney-General) are those who are alleged to have infringed thepetitioner's rights; not persons who may be able to give relevantevidence. It would improper in such applications, as in other legal
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proceedings, to join as respondents persons who are no more thanwitnesses. Here the petitioners' real complaint is the failure to holdthe elections on 28.8.98 and to fix a new date in lieu; the allegedinfringement was by the 1 st respondent and the returning officers, andthe Supreme Court Rules did not require anyone else to be maderespondents. The Proclamation and Regulation were therefore rel-evant, not to the petitioners' case, but to the respondents' defenceof justification, and the burden was therefore on them to produceevidence from the "defence establishment" if they wished to. It wouldhave been improper for the petitioners to join a person as respondentfor the sole purpose of forcing him to produce evidence, howeverimportant, to support their own case – even an essential witnessis not a necessary party. How then can they be under any obligationto make someone from the "defence establishment" a respondent,in order to compel him to produce evidence in support of therespondents?
I must mention that the respondents' plea that they had noknowledge of the public security aspects of the Proclamation and theRegulation confirms that when the impugned Regulation was madethe 1st respondent did not inquire why it was made, and that he failedor declined to fix a new date of poll despite the lack of any informationsuggesting an adverse security situation. While I agree that it wastheoretically possible for the holding of elections to have affectednational security – for instance, if a significant number of securitypersonnel had to be withdrawn from the "operational areas" in orderto provide security for the elections, that might have affected nationalsecurity in those areas – yet the Inspector-General of Police did notthink so on 25.6.98, and the 1st respondent did not have any materialsuggesting that any change had taken place at any time thereafter.
I am therefore of the view that neither Article 35 nor the failureto join an officer from the "defence establishment" is a bar to thisapplication.
However, the question whether this Court had jurisdiction to reviewthe Proclamation and the Regulation did arise. It was only towardsthe conclusion of the oral argument that reference was made to Article
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154 J (2), which may oust the jurisdiction of this Court in regard tothe Proclamation. Without the benefit of a full argument, I am reluctantto rule on that matter. As I am of the view that the impugned Regulationwas invalid, the application can be disposed of without consideringthe vires of the Proclamation. I must also mention that learned counselfor the petitioners submitted that he was not challenging theProclamation in its entirety, but only in regard to its application toareas additional to those to which the previous Proclamation applied.That involves a further question – whether the Proclamation wasseverable – and on that too we did not have the benefit of assistancefrom counsel.
The learned Solicitor-General relied on section 8 of the PSO, whichprovides that "no emergency regulation . . . shall be called in questionin any court", as ousting the jurisdiction of the Courts to review theimpugned Regulation. Article 155 (2) imposes a Constitutional limi-tation on the power to make emergency regulations: they cannot havethe legal effect of overriding, amending or suspending the operationof any provisions of the Constitution. If section 8 ousts the jurisdictionof this Court to review emergency regulations, then the consequencewould be that even a. regulation violative of the Constitution isvalid: and Article 155 (2) would be nugatory. However, if Parliamenthad sought to enact similar legislation, that would have been subjectto review by this Court under Article 121. If section 8 ousts thejurisdiction of this Court, then that which Parliament cannot do bylegislation, can nevertheless be done by an emergency regulationmade in the exercise of delegated legislative power! Article 168 (1)did not keep in force prior enactments where the Constitutionexpressly provided otherwise. The Constitution has made such expressprovision by entrenching several jurisdictions of this Court (seeWickremabandu, at 361), and section 8 of the PSO is therefore subjectto such express provision. I hold that, in the exercise of the jurisdictionof this Court under Article 126, this Court has power to review thevalidity of the impugned regulation.
Article 76 (2) permits Parliament to make, in any law relating tonational security, provision empowering the President to makeemergency regulations. Article 155 deems the PSO to be a law
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enacted by Parliament, and section 5 of the PSO authorizes thePresident to make emergency regulations “as appear to him to benecessary or expedient in the interests of public security and thepreservation of public order and the suppression of mutiny, riot andcivil commotion, or for the maintenance of supplies and servicesessential to the life of the community". Section 5 is thus a provisionfor the delegation of legislative power in a public emergency (seeWeerasinghe v. Samarasinghe)|4) and emergency regulations aredelegated legislation. An emergency regulation must therefore be inform legislative, rather than executive or judicial; it must be a rule,rather than an order or a decision. If it was considered necessaryto suspend the notices issued under section 22 of the Act, there shouldfirst have been enacted a regulation (ie delegated legislation)conferring power, in general terms, on some authority to suspendnotices already issued under section 22, and then only could therehave been an exercise of that power, in relation to particular instances.Further, such regulation could not have been absolute and unfettered,but relevant criteria or guidelines (ie “national security-oriented"criteria) were necessary. Thereupon judicial review would have beenpossible at two stages: first, whether the regulation itself was intravires, and second, whether the act done was a proper exercise ofpower, in keeping with the criteria or guidelines and for valid reasons.As Sharvananda, CJ. observed in Joseph Perera's case:
“Regulation 28 violates Article 12 of the Constitution. The Articleensures equality before the law and strikes at discriminatory Stateaction. Where the State exercises any power, statutory or otherwiseit must not discriminate unfairly between one person and another.If the power conferred by any regulation on any authority of theState is vague and unconfined and no standard or principles arelaid down by the regulations to guide and control the exercise ofsuch power, the regulation would be violative of the equality provisionbecause it would permit arbitrary and capricious exercise of powerwhich is the antithesis of equality before law. No regulation shouldclothe an official with unguided and arbitrary powers enabling himto discriminate – Yick Wo v. Hopkins. Regulation 28 confers anaked and arbitrary power on the Police to grant or refusepermission to distribute pamphlets or posters as it pleases, in
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exercise of its absolute and uncontrolled discretion, without anyguiding principle or policy to control and regulate the exercise ofsuch discretion. There is no mention in the regulation of the reasonsfor which an application for permission may be refused. Theconferment of this arbitrary power is in violation of the constitutionalmandate of equality before the law and is void."
Sharvananda, CJ. was dealing with an emergency regulation whichpurported to confer a power on an official, and he held the regulationto be invalid because it purported to confer a power which was vagueand unconfined, and which could be exercised arbitrarily and capri-ciously. Here the impugned Regulation does not purport to confer apower (to suspend statutory notices of election under section 22 ofthe Act): it does not specify the criteria for the exercise of the power;and it purports to suspend such notices without any stated reason.
I hold that the impugned Regulation is not a valid exercise of powerunder section 5 of the PSO. It is not an emergency regulation. It has,rather, the character of an order, purporting to suspend notices lawfullyissued under the Act. There was not in force, then or later, any legalprovision which authorized the making of an order suspending suchnotices.
But in any event, even treating the impugned regulation as if ithad been an order made under a valid emergency regulation, thesuspension of the notices issued under section 22 could have beensustained only if it had been for one of the purposes set out insection 5 of the PSO. The petitioners have established, prima facie,that from 25.6.98 up to the end of July, 1998, there was no knownthreat to national security, public order, etc., which warranted thepostponement of the elections. The respondents have failed to adduceany material whatever which suggests that, in August, 1998, therewas any such threat. Accordingly, the suspension of the notices bymeans of the impugned Regulation was arbitrary and unreasonable.That suspension infringed the fundamental rights of the petitionersunder Articles 12 (1) and 14 (1) (a), for the reasons already stated.
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Should the 1st respondent have insisted on the poll being heldon 28.8.98? While I appreciate the difficult situation in which he was,nevertheless it is necessary to remember that the Constitution assureshim independence, so that he may fearlessly insist on due compliancewith the law in regard to all aspects of elections – even, if necessary,by instituting appropriate legal proceedings in order to obtain judicialorders. But the material available to this Court indicates that he madeno effort to ascertain the legal position, or to have recourse to legalremedies.
I grant the petitioners declarations that the 1st to 13th respondentshave infringed their fundamental rights under Articles 12 (1) and14 (1) (a) by the suspension of the issue of postal ballots, therebycontributing to the postponement of the poll; and that the 1strespondent has infringed their fundamental rights under Articles12 (1) and 14 (1) (a) by failing to take steps to enable the takingof the poll, for the Provincial Council elections, on 28.8.98, and byfailing to fix a new date of poll.
I direct the 1st respondent to take immediate action to fix, withintwo weeks from today, in respect of all five elections (a) a new dateor dates, not later than four weeks from today, for the issue of postalballot papers, and (b) a new date or dates of poll, not later than threemonths from today.
The petitioners have not prayed for compensation. They will beentitled to costs in a sum of Rs. 30,000 payable by the State.
G. P. S. DE SILVA, CJ. – I agree.
GUNASEKERA, J. – I agree.
Relief granted.
Respondents directed to fix new dates for issue of postal ballot papersand poll.