025-SLLR-SLLR-2001-V-2-KUMARASINGHE-v.-DAYANANDA-DISSANAYAKE.pdf
KUMARASINGHE
v.DAYANANDA DISSANAYAKE
COURT OF APPEALJ.A.N. DE SILVA, J.
C.A. 1133/99 (WRIT)
JULY 6, 2000SEPTEMBER 19, 2000DECEMBER 11, 2000
Writ of Mandamus – To call Jot Nominations and hold Provincial CouncilElections – Northern and Eastern Provincial Council – ProvincialCouncils Act No. 42 of 1987, Act No. 27 of 1996 – Provincial CouncilsElections Act No. 2 of 1998 – Constitution – 13th Amendment – PublicSecurity Ordinance – S.5 – Prohibition.
Held :
The President of the Republic of Sri Lanka has made Regulationsdated 12.7.1998 – published in gazette No. 618/98 under S.5 of thePublic Security Ordinance having the effect of making the date and
time fixed for nomination for all purposes of no effect. The
Gazette also prohibits the Nomination of candidates to the N.EProvincial Council so long as part II of the Public Security Ordinanceis in operation in the N.E Provinces.
The Commissioner of Election is prohibited by the said Regulationfrom calling for nominations.
Mandamus will not be issued where Respondent has no power toperform the act sought to be mandated.
Application for a Writ of Mandamus.
Cases referred to :
R vs. Eastburn Lorp (1900) 83 LJ 338 (CA)
J.C. Weliamuna for Petitioner.
Saleem Marsoof, PC Addl. Solicitor General with Viran Corea, S.C forRespondent.
Cur. adv. vult.
CA
Kumarasinghe v. Dayananda Dissanayake
(J.A.N. De Silva, J.)
253
January 30, 2001J.A.N. DE SILVA, J.
The petitioner Is a citizen of Sri Lanka, resident in Vavuniyacoming within the Northern and Eastern provinces of the country.He claims to have contested the Generi Election held in 1994for the District of Vavuniya in the Electoral District of Wanni. Bythis application the petitioner seeks a writ of mandamusdirecting the Commissioner of Elections, the first respondent,to call for nominationlind to take steps to hold ProvincialCouncil Elections in the Northern and Eastern ProvincialCouncil under the Provincial Council’s Election Act.
't the hearing of this application the Additional SolicitorGeneral who appeared for the respondents raised the followingpreliminary objections.
The petitioner's application is misconceived in law.
The relief sought by this application would have the effectof reviewing and rendering ineffective, an Act of the Presidentof Sri Lanka whose acts are immune from review under andin terms of Article 35 of the Constitution.
The petitioner has failed to make the Attorney General aparty to this application in the representative capacity ascontemplated in Article 35.
The petitioner has failed to cite as respondents to thisapplication certain material parties.
(1) The petitioner is guilty of laches or undue delay.
(2) Relief sought is futile since the prevailing situation inthe North and East is not conducive to the meaningfulconduct of Provincial Council Elections.
After oral submissions both parties tendered writtensubmissions in respect of the preliminary objections.
254
Sri Lanka Law Reports
[20011 2 Sri L.R.
With the introduction of the Thirteenth Amendment to theConstitution of Sri Lanka and the Provincial Council Act No. 42of 1987, the Provincial Councils were established. In order tofacilitate Provincial Council Elections the Parliament enactedProvincial Councils Election Act No. 2 of 1988 which wascertified on 27.01.1988. Thereafter steps were taken to conductthe Provincial Council Election in respect of the Northern andEastern Provinces on 10.11.1988. At the conclusion of the saidelection those elected were duly declared members of the NorthEast Provincial Council. One Mr. Varatharaja Pernmal who wasthus declared a member of the said Provincial Council by GazetteNotification No. 535/15 of 8th December 1988 was made theChief Minister of the Notth-East Provincial Council in December1988.^
In or about April 1990 the said North-East ProvincialCouncil declared “an independent State” within Sri Lanka, 't heresulting position was that Parliament Amended the ProvincialCouncils Act by Act No. 27 of 1990 on 06.07.1990 andintroduced Section 5A to the main Act. Accordingly, a ProvincialCouncil stands dissolved if there is a communication to thePresident from the Governor of a Province stating that themajority of the membership of the Council expressly repudiatedor manifestly disavowed obedience to the Constitution.Provincial Councils Election Act too was amended by Act No.29 of 1990 permitting fresh elections if a Provincial Councilstands dissolved under Section 5A of the Provincial CouncilsAct.
In terms of the amended Act No. 27 of 1990, if a ProvincialCouncil stands dissolved by operation of Section 5A theCommissioner shall be deemed to have complied with theprovisions of Section 10 of the Provincial Councils Election Actif he publishes the notice thereunder within a period of oneweek from the date of commencement of the said Act.
The Commissioner of Elections did publish a notice in theGovernment Gazette on 11.07.1990 in compliance with Section
CA
Kumarasinghe v. Dayananda Dissanayake
(J.A.N. De Silva, J.)
255
10 of the said Provincial Councils Elections Act (as amended),inter alia calling for nominations in respect of Northern andEastern Province between 25.07.1990 and 01.08.1990. (Thesaid Gazette was produced marked P10).
The petitioner’s complaint is that even though theCommissioner of Elections called for nomination on 11.07.1990in terms of Section 10 of the Provincial Councils Election Act hefailed to hold elections during the stipulated period as requiredby Section W of the ^aid Act. Counsel for the petitionersubmitted treat the notice calling for nominations by P10 is nowineffective and frustrated and hence has no effect or force inlaw. The petitioner demanded that ther Commissioner shouldpuhKkh a fresh notice calling for nominations and take actionaccording to law. By letter dated 12.07.1999 the petitionerrequested the Commissioner to hold the Provincial CouncilElection in the Northern and Eastern Provinces. The DeputyCommissioner of Elections on behalf of the Commissioner merelyacknowledged the receipt of the said letter by letter dated
In this backdrop the petitioner seeks a writ ofmandamus from this Court to compel the Commissioner to holdthe elections.
It is to be noted that President of the Republic of Sri Lankahad made regulations dated 12th July 1990 which werepublished in the Government Gazette bearing No. 618/98 of(1R1) under Section 5 of the Public Security Ordinance (asamended) having the effect of making the date and time fixedfor nomination by the said Gazette notification of the
Commissioner of Elections “for all purposesof no effect.”
The said Gazette notification of 618/18 of 12th July 1990 alsoprohibits the nomination of candidates to the North-EastProvincial Council so long as part 11 of the Public SecurityOrdinance is in operation in the Northern and Eastern Provinces.The 1st respondent, the Commissioner of Elections has averredin his affidavit that he is prohibited by the said regulation fromcalling for nominations in respect of the said provinces so longas part 11 of the Public Security Ordinance (as amended)remains operative.
256
Sri Lanka Law Reports
[2001] 2 Sri L.R.
The prerogative remedy of mandamus has long providedthe normal means of enforcing the performance of public dutiesby public authorities of all kind (vide Harding Public Dutiesand Public Law Chapt. 3). “Mandamus” literally means “wecommand.” It differs from writ of prohibition or certiorariinasmuch as (if granted) it will require some positive act on thepart of the body or person to whom it is addressed rather thanprohibiting some step (Stephen’s Commentaries 20* EditionVol. 1 Page 59)." Mandamus commanus the person to whom itis addressed to perform public or quasi public legal duty whichhe has refused to perform and the performance of which cannot
be enforced by any otht?r adequate legal remedy.where any
tribunal, inferior Court or body of persons charged wit^theperformance of a public duty do not discharge the duty,mandamus lies to compel him to do it.” (Short and Mellor, BrownPractice 2nd Edition Page 197).
Several cases have recognized certain conditions that shouldbe satisfied by an applicant when he seeks a writ of mandamus.One such condition is that mandamus will not be issued whererespondent has no power to perform the act sought to bemandated R vs. Eastburn Lorp.m
As mentioned earlier in the instant case the Commissionerof Elections has taken up the position that there is a prohibitionunder the Public Security Ordinance operating against him fromperforming his duties. Counsel for the petitioner submitted thatthe promulgation and continuation of the emergency regulationsare illegal and contrary to law. The emergency regulationsreferred to above are approved/ratified by Parliament everymonth. This Court has no power to review legislation passedby Parliament. No competent Court has declared that theemergency regulations are illegal or invalid or inoperative. Inthe circumstances I hold that the petitioner is not entitled toobtain a writ of mandamus from this Court. Accordingly I refusethis application.
CA
Kumarasinghe v. Dayananda Dissanayake
(J.A.N. De Silva, J.)
257
In view of the above finding I do not consider it necessaryto deal with the rest of the objections raised by the respondent.This application is dismissed without costs.
Application dismissed.