MOHAMED v. JAYARATNE AND OTHERS

020-SLLR-SLLR-2002-3-MOHAMED-v.-JAYARATNE-AND-OTHERS.pdf


CA
Mohamed v. Jayaratne and Others
181
MOHAMED
v.
JAYARATNE AND OTHERS
COURT OF APPEALAMARATUNGA, J.,
EDIRISURIYA, J. ANDBALAPTABENDI, J.
CA (EXPULSION) NO. 2003/2001APRIL 04, 2002
Provincial Council Elections Act, No. 2 of 1988, section 61A (2) – Elected a Councilloras a nominee of PA but remained a member of the SLMC – Expulsion fromPA by Secretary of PA – Validity – Deeming member status – Affidavit -Requirements – Is the time limit of two months under section 63 (1) mandatory?- Constitution, Article 126 (5).
The petitioner who is a member of the Sri Lanka Muslim Congress (SLMC) waselected as a Member of the Provincial Council as a nominee of the People's Alliance(PA). The SLMC was a constituent member organisation of the PA. The Secretaryof the PA informed the Commissioner of Elections of the expulsion of the petitionerfrom the PA. The petitioner challenged this decision on the ground that, the Secretaryof the PA had no power to expel the petitioner as he is not a member of the PA,but a member of a constituent member organisation (SLMC) of the PA.
A preliminary objection was raised that the affidavit of the petitioner is not a properaffidavit as the petitioner having commenced the affidavit with an affirmation, cannotswear to the contents of the affidavit at the time he set his signature to it {jurat).
Held:
The words used by the petitioner in the opening part of his affidavit manifesthis intention to make a solemn and formal declaration. The words used showhis consciousness of his fundamental obligation to tell the truth. The use ofthe word ■“affirm” in the opening part of the affidavit and the word swear inthe “jurat” cannot militate against the manifested intention of the petitioner tomake a formal declaration in the discharge of his fundamental obligation totell the truth.
Held, further –
The petitioner has the right to challenge the 1st respondent to show theprovisions of the Constitution of the PA which conferred power on her to expel
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the petitioner. The burden is on the 1st respondent to prove that he or thePA had power to expel the petitioner.
The 1st respondent has failed to point out the source of his power to expelthe petitioner.
Apart from the fictional deeming membership conferred on the petitioner bythe PA Constitution, the petitioner is not a member of the PA in the truesense of the word. The Constitution of the PA did not provide for his expulsioneither by the PA or by the Central Executive Committee of the PA or by theleader of the PA or by the Secretary of the PA.
The time limit of two months set out in the proviso to section 63 (1) of theProvincial Councils Act is directory and not mandatory.
“This does not mean that the Judge will totally disregard the time limit oftwo months. They will continue to abide by the time limit unless they areprevented from doing so due to unforeseen and unavoidable circumstances.”
APPLICATION under section 63 of the Provincial Council Elections Act, No. 2 of
1988.
Cases referred to :
Ratwatte v. Sumathipala – (2001) 2 SRI LR 55.
CA Application No. 450/92 – CAM 25. 06. 92.
Trico Freighters v. Yang Civil Engineering Lanka Ltd. – (2000) 2 Sri LR 136.
Sooriya Enterprises (International) Ltd. v. Michel White & Co., Ltd. SC SplNo. LA 235/94 – SCM 27. 07. 94.
CA Application No. 663/92 – CA 17. 11. 1992.
Segu Dawood v. Ms. Ferial Ashroff and Others – (2002) – 1 Sri LR 26.
Visuvalingam v. Liyanage – (1985) 1 Sri LR 203.
Faiz Musthapa, PC with Abdul Najeem for petitioner.
Wijedasa Rajapakse, PC with M. L. M .A. Farook, Tilaka Bandara Waduressa'and
Rasika Dissanayake for 1st respondent.v>
M. M. Sahid for 2nd respondent.
Janak de Silva, State Counsel, for 3rd and 4th respondents.
Cur. adv. vult.
CA
Mohamed v. Jayaratne and Others (Gamini Amaratunga, J.)
183
May 02, 2002
GAMINI AMARATUNGA, J.
The 3rd respondent Commissioner of Elections, acting under section 0161 A(2) of the Provincial Council Elections Act, No. 2 of 1988, bynotification published in Government Gazette Extraordinary No.1075/1 dated 12. 04. 1998 declared that the petitioner Abdul KaderRawuthar Neina Mohamad has been elected as a Member of the North-Central Province Provincial Council as a nominee of the People’sAlliance, a recognized political party.
The People’s Alliance (PA) is a recognized political party in termsof the Parliamentary Elections Act, No. .1 of 1981. The PA is an allianceof several recognized political parties. The Sri Lanka Muslim Congress 10(SLMC) which is a recognized political party was a constituent memberorganization of the PA. The petitioner is a member of the SLMC. The1st respondent, secretary of the PA by his letter dated 12. 11. 2001(P6) informed the petitioner that as it has become clear that thepetitioner was acting contrary to the policies and the activities of thePA the petitioner is expelled from the membership of the PA withimmediate effect. By letter of the same date the 1st respondent informedthe Commissioner of Elections about the expulsion of the petitionerfrom the PA.
Section 63 (1) of the Provincial Council Elections Act, No. 2 of 201978 provides that where a Member of a Provincial Council ceasesby. . . expulsion to be a member of a recognized political party. . .on- whose nomination paper his name appeared at the time of hisbecoming such Member of a Provincial Council, his seat shall becomevacant upon the expiration of a period of one month from the dateof his ceasing to be such member.
The proviso to section 63 (1) provides as follows:
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“Provided that in the case of the expulsion of a member of aProvincial Council his seat shall not become vacant if prior to theexpiration of the said period of one month he applies to the Court 30of Appeal by petition in writing and the Court of Appeal upon suchapplication determines such expulsion was invalid.”
Where the Court of Appeal determines that the expulsion was validthe vacancy shall occur from the date of such determination.
The petitioner, in terms of the proviso to section 63 (1) made anapplication to this court within the prescribed period for a determinationthat his expulsion was invalid.
When this application came up before us Mr. Wijedasa Rajapakse,PC for the 1st respondent raised a preliminary objection that sincethe affidavit filed by the petitioner in support of the averments of fact -toset out in the petition is not a proper affidavit prepared in accordancewith the law, the facts set out. in the petition are unsupported byevidence and as such the petitioner’s application should be dismissedin limine. The learned President’s Counsel for the 1st respondent madesubmissions in support of his preliminary objection and Mr. Musthapha,PC, counsel for the petitioner made submissions in reply. After theconclusion of submissions of both President’s Counsel, we, havingconsidered all submissions made to us, unanimously decided that thepreliminary objection should be overruled. Accordingly, on 22. 02. 2002we made order overruling the preliminary objection and fixed the soapplication for inquiry on its merits. Having concluded the inquiry wein Part A of this judgment give our reasons for overruling the preliminaryobjection raised on behalf of the 1st respondent and in Part B wegive our decision on the merits of the petitioner’s application.
Part A
The submissions of the learned President’s Counsel for the 1strespondent in support of his preliminary objection that the affidavit filed
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by the petitioner is not a proper affidavit receivable in evidence wasmade on the following basis. The affidavit commences with the followingsentence :
“I Abdul Carder Rawuthar Neina Mohamad of No. 46, Sekkupitiya eoRoad, Kekirawa, being a Muslim do hereby solemnly, sincerely andtruly declare and affirm as follows.”
The jurat of the affidavit reads as follows:
The foregoing affidavit having been read over and explained tothe deponent abovenamed and the deponent having understood thecontents thereof sworn to and signed at Colombo on this 10th dayof December, 2001.”
The learned President’s Counsel submitted that the petitioner asa Muslim has a perfect right to elect to affirm or to swear to thecontents of the affidavit but having commenced the affidavit with an 70affirmation he cannot swear to the contents of the affidavit at the timehe set his signature to it. The learned President’s Counsel submitted.that in view of this defect, the affidavit of the petitioner is not a properaffidavit receivable or admissible in legal proceedings. The submissionof the learned President's Counsel was that in the absence of a properaffidavit the facts set out in the petition are unsupported by evidenceand this unsupported affidavit cannot be the basis for an inquiry underthe proviso to section 63 (1) of the Provincial Council Elections Act.
In support of his submission about the defect of the affidavit the learnedPresident’s Counsel cited the decision of this court in Ratwatte v. eoSumathipalar’> and moved that the petitioner’s application be dismissedin limine.
In Ratwatte v. Sumathipala (supra) the deponent who has submittedthe affidavit in question has commenced his affidavit by stating thathe is a Christian. The jurat entered by the Justice of the Peace statedthat the deponent has affirmed. However, Edussuriya, J. (P/CA) did
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not reject the affidavit on the discrepancy between the opening sentenceof the affidavit and the jurat. Having closely examined many featuresof the affidavit and different ink used to fill the blanks in the juratand the ink used by the deponent to set his signature to the affidavit, soHis Lordship came to the conclusion that the Justice of the Peacedid not read and explain the contents of the affidavit to the deponentas he claims he did in the jurat clause nor did the deponent makeoath and swear to the contents of the affidavit in the presence ofthe Justice of the Peace, but that the Justice of the Peace blindlysigned an affidavit which had been already signed by the deponentin some other place at some other time without even entering the date.
It was for that reason that the affidavit was rejected. Therefore, thiscase does not support the submission made by the learned President’sCounsel for the 1st respondent..100
The learned President’s Counsel for the petitioner sought to meetthe preliminary objection on two grounds. His first submission was thatthere is no requirement laid down in the proviso to section 63 (1) ofthe Provincial Council Elections Act that a petition under this provisoshall be accompanied or supported by an affidavit. In support of hisargument that a petition alone is sufficient to invoke the jurisdictionof the Court of Appeal for a determination under the proviso to section63 (1) the learned President’s Counsel invited our attention to section98 of the same Act where there is specific reference to petitionsupported by affidavit. It was the contention of the learned President’s noCounsel that once jurisdiction of the Court of Appeal under the provisoto section 63 (1) of the Provincial Council Elections Act is invokedby presenting a petition the petitioner is entitled to adduce oral evidenceto substantiate the facts set out in the petition. This is an attractiveargument but before we deal with it, we wish to consider the secondground urged by the learned President’s Counsel to meet the preliminaryobjection.
The learned counsel submitted that the affidavit of the petitioneris not defective and that it has been prepared in accordance with the
CAMohamed v. Jayaratne and Others (Gamini Amaratunga, J.)187
law. The learned counsel submitted that even if there is a defect inthe affidavit the defect is curable. In support of this contention hecited the decision of this Court in CA Application No. 450/92® whereit was so held.
In Trico Freighters v. Yang Civil Engineering Lanka Ltd,® an objectionto an affidavit was raised on the basis that the deponent has madean affirmation without stating whether he is Buddhist, Hindu or Muslim.Edussuriya, J. (P/CA) held that under section 5 of the Oaths andAffirmation Ordinance as it stands today it is open to even a Buddhist,a Hindu or a Muslim to make an oath. The Supreme Court in itsjudgment in Sooriya Enterprises (International) Ltd v. Michel White andCo. Ltdm has stated that “the substitution of an oath for an affirmation(or vice versa) will not invalidate proceedings or shut out evidence.The fundamental obligation of a witness or the deponent is to tellthe truth and the purpose of an oath or affirmation is to enforce thatobligation”. Having quoted the above passage Edussuriya, J. held thateven though the deponent has made- an affirmation without statingwhether he is a Buddhist, a Hindu or a Muslim the affidavit is validin law.
In CA Application No. 663/925) the deponent in his affidavit hasstated that, he was declaring the matters contained in the affidavit“respectfully, honestly and faithfully”. The word affirm had not beenused either in the opening part of the affidavit or in the jurat. S. N.Silva, J. (as he then was) with Gunasekera, J. agreeing held thatthe dictionary meaning of the word affirmation is to make a “formaldeclaration” and that the words used in the opening paragraph of theaffidavit in question satisfied the requirements of a formal declaration.Accordingly, the Court made order admitting the affidavit.
In the instant case the words used by the petitioner in the openingpart of his affidavit manifest his intention to make a solemn and formaldeclaration. The words used show his consciousness of his fundamentalobligation to tell the truth. It was our considered view that the use
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of the word affirm in the opening part of the affidavit and the wordswear in the jurat cannot militate against the manifested intention ofthe petitioner to make a formal declaration in the discharge of hisfundamental obligation to tell the truth. We accordingly held that thepetitioner’s affidavit is a valid affidavit sufficient to substantiate thefacts set out in the petition.
In view of our decision regarding the validity of the petitioner’saffidavit it was not necessary for us to make a decision on the 1stsubmission of the learned President’s Counsel that even in the absence ieoof an affidavit presented with the petition the petitioner is entitled toadduce oral evidence to substantiate the facts set out in the petition.
For the reasons set out above we overruled the preliminary objectionraised on behalf of the 1st respondent and proceeded to hear the mainapplication.
Part B
As we have already set out in part A of our judgment the petitioneris a member of the SLMC which is a constituent member organizationof the PA from its inception. The petitioner has produced a copy ofthe constitution of the PA marked P1. According to section iii Rule1701 of the constitution of the PA it is a coalition of recognized politicalparties and independent political organizations which subscribe to theobjectives of the alliance and accept its constitution. According tosection iii Rule 3 of the PA constitution every member of a constituentmember organization shall be deemed to be an individual member ofthe alliance for the purpose of achieving the aspirations and fulfillingthe aims and objectives stated in the PA constitution.
The petitioner was first elected to the North Central ProvinceProvincial Council (hereinafter called NCPPC) at the Provincial CouncilElection held in 1993. At that election he contested as a candidate ieoof the SLMC. At the Provincial Council Election held on 6th April, 1999,
CA
Mohamed v. Jay a ratne and Others (Gamini Amaratunga, J.)
189
he contested as a candidate of the PA and received 12,000 votesand secured the 14th placed in the PA list. However, since the PAwas entitled only to 12 seats on the basis of the total number of votespolled by it, the petitioner, who was placed in the 14th position failedto get elected as a Member of the Provincial Council.
The late Mr. Ashraff, the leader of the SLMC by his letter dated
04. 99 addressed to Her Excellency the President who is also thePresident of the PA requested her to nominate the petitioner to oneof the bonus seats the PA was entitled to in the NCPPC to represent >»>the Muslim community of the North Central Province. A true copy ofthe said letter, certified by the registered Attorney for the petitioner,has been produced marked P3. The learned President’s Counsel forthe 1st respondent challenged the authenticity of P3 on the basis thatit is a copy not signed by Mr. Ashraff. The 1st respondent, in hisaffidavit has denied the sending of the purported unsigned letter P3to Her Excellency the President. It is observed that P3, on the faceof it, is a communication directly addressed to Her Excellency thePresident by. Mr. Ashraff. It has not been copied to the 1st respondent.
In these circumstances we cannot see on what basis and on what200material the 1st respondent could deny the sending of that letter byMr. Ashraff to' Her Excellency the President. P3 is dated 9. 4. 99. TheCommissioner of Elections by notification published in the GovernmentGazette (P4) has declared the election of the petitioner as a Memberof the NCPPC under section 61 A (2) of the Provincial Council ElectionsAct with effect from 12. 04. 99. Therefore, prima facie one can seea nexus between P3 and P4. The 1st respondent has not placed anymaterial before this Court to show, if not for the request containedin. P3, on what basis the petitioner was nominated to one of the bonusseats the PA was entitled to in the North Central Provincial Council. 210Whatever was the reason for the petitioner’s appointment as a Memberof the NCPPC, the fact remains that the petitioner has been appointedas a nominee not of the SLMC but of the PA.
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The petitioner in paragraph 10 of his petition has stated that atthe NCPPC he conducted himself as a Member of the SLMC. Inorder to substantiate this position he has produced, marked P5, extractsof the minutes of the NCPPC. The 4th respondent, the Secretary ofthe NCPPC, in his affidavit has admitted that the name of the petitionerappears in the minutes of the NCPPC as a Member of the SLMCbut this was due to a mistake made by the reporters who took down 220the minutes and the correct recording of the minutes should have beena record citing the petitioner name as a member of the PA.
Having considered all relevant material, it is our considered viewthat the petitioner's contention that he functioned in the NCPPC notas a member of the PA but as a Member of the SLMC cannot beaccepted as correct. He was declared elected to the NCPPC as anominee of the PA. He has accepted his election to the NCPPC asa member of the PA. There is no doubt that within the PA group hehas functioned as a representative of the SLMC. By virtue of paragraph(b) of section Viii of the constitution of the PA which says that “nothing 2»in this constitution shall preclude any individual member of constituentparty from functioning fully as a member of such party” the petitionerwas entitled to function as a member of the SLMC but he still remaineda member of the PA group of the NCPPC.
In paragraph 12 of his petition the petitioner has stated that uponthe dissolution of Parliament the SLMC decided to become a stakeholderin the United National Front as a combined political force and to contestthe Parliamentary Elections held in December, 2001. The petitioner wasnominated by the SLMC to contest the Parliamentary elections heldin December, 2001, in respect of the Electoral District of Anuradhapuraas a candidate of the United National Party underthe banner of the 24°United National Front.
The 1st respondent in his affidavit states that the petitioner waslawfully expelled from the membership of the People’s Alliance andstates further that the petitioner became disqualified to continue to
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be a member of the PA or to represent the PA in any institution suchas a Provincial Council in view of the fact that he contested in thelast General Election from the United National Party which is the mainopposition party. Paragraphs 14 and 15 of the 1st respondents affidavitare as follows:
“14. I state that legal, moral or ethical rights to claim the membership z»in the Provincial Council from the PA after he had committeda most disastrous damage to the PA by his betrayal conductas alleged by himself in his petition.”
“15. I further state that the petitioner’s conduct is amount to grossviolation of the People’s Alliance.”
Both averments set out above are incomplete but we presume thatwhat the 1st respondent means to say is that the conduct of thepetitioner amounted to a gross violation of the PA constitution andthat by his conduct the petitioner has forfeited all legal, moral andethical rights to continue as a PA Member of the Provincial Council.
The contention of the learned President’s Counsel for the petitioneris that the 1st respondent had no power or lawful authority to expelthe petitioner from the PA. The learned counsel submitted that thepetitioner is not a Member of the PA but a member of a constituentmember organization (SLMC) of the PA. He pointed out that accordingto section iii Rule (3) of the constitution of the PA every member ofa constituent member organization shall be deemed to be an individualmember of the alliance for the purpose of achieving the aspirationsand fulfilling the aims and objectives stated therein. The learnedPresident’s Counsel contended that the “deeming member” status 270conferred on an individual member of a constituent member organizationof the PA is limited to the purposes spelt out in section iii Rule (3)of the PA constitution and does extend to disciplinary control of suchmember by the PA. The learned counsel pointed out that by sectionix Rule 5 disciplinary control of Members of Parliament or Members
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of Provincial Councils elected on the nomination of the alliance shallrest with the member organization of which they were members. Thecounsel argued that in view of the above quoted rule 5 of section1X disciplinary control of a Member of a Provincial Council electedon the nomination of the alliance is with the member organization of 2sowhich such person is a member and the secretary of the PA has nodisciplinary control over individual members of constituent memberorganizations of the PA and as such the purported expulsion of thepetitioner by the 1st respondent was without lawful authority or anypower to expel him.
In order to support his argument that disciplinary control of a memberof a Provincial Council can be exercised only by the constituent politicalorganization of which he is a member the learned counsel drew ourattention to certain other provisions of the constitution of the PA. Sectionix Rule 5(b) states that a member of a constituent member organization 290of the alliance ceases to be a member of the alliance on his beingexpelled by the member organization of which he or she is a member.Section ix Rule 5(c) provides that in the event of a Member ofParliament or of a Provincial Council or of a local authority electedon the nomination of the alliance is expelled from the member organizationof which he was a member at the time of contesting for such electiveoffice, it shall be the duty of the Secretary of the alliance to forthwithcommunicate to the Commissioner of Elections or the Secretary ofthe relevant Provincial Council as may be of the fact of such expulsionas soon as he is informed of such fact by the Secretary-General or 300the Secretary, as the case may be, of the relevant member organization.Having quoted the above rules the learned President’s Counsel submittedthat there is no provision in the constitution of the PA which empowersthe Secretary of the PA or its Central Executive Committee to expelan individual member of a constituent political organization. It was thecontention of the learned President’s Counsel that although there isprovision in the PA constitution (section ix Rule 2) to expel memberorganizations of the PA there is no provision which empowers the PAor its Secretary to expel individual members of member organizations
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and as such the purported expulsion of the petitioner was null and 310void and of no force or avail in law.
The submission of Mr. Rajapakse, PC on behalf of the 1st respondentwas that the. petitioner having acted contrary to the letter and spiritof the constitution of the PA has in fact jettisoned it and thereforehe cannot now seek to utilise the provisions of the same constitutionto argue that the PA has no power to expel him.
Before we deal with Mr. Rajapakse’s argument we wish to deal withthe question of burden of proof. The 1st respondent in his affidavit(paragraph 11) has admitted that the petitioner was expelled from themembership of the PA. The petitioner has filed this application on 320the basis that the purported expulsion was invalid. The petitioner inhis petition (paragraph 16 (d)) has specifically stated that the 1strespondent had no lawful authority to expel a member of a constituentmember organization of the PA. He presented his case on the basisthat under the constitution of the .PA the 1st respondent or the PAhad no power or authority to expel him. In these circumstances theburden is on the 1st respondent to prove that he or the PA had powerand authority to expel the petitioner. Apart from a mere admissionthat the petitioner was expelled from the PA, there is nothing in the1st respondent’s affidavit to show the power or authority he had to a®expel the petitioner from the PA. The 1st respondent has failed to revealto this Court the source of his power to expel the petitioner. Evenat the hearing before us Mr. Rajapakse, PC was unable to point outthe source of the 1st respondent’s power to expel the petitioner. Mr.Rajapakse's argument to justify the petitioner's expulsion was that thepetitioner who has violated and jettisoned the constitution of the PAhas no right to challenge his expulsion on the basis that the constitutionof the PA does not provide for the expulsion of individual membersof constituent political organizations by the PA.
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We are unable to accept Mr. Rajapakse’s argument. The petitioner 340has the right to challenge the 1st respondent to show the provisionof the constitution of the PA which conferred power on him to expelthe petitioner.
In Segu Dawood v. Mrs. Ferial Ashraff and Others<6) the petitionerSegu Dawood was a Member of Parliament declared elected as aMember of Parliament by the Commissioner of Elections under Article99A of the Constitution. The Commissioner of Elections has declaredthe petitioner as an elected Member of Parliament upon a request madeby the Secretary-General of the National Unity Alliance (NUA), arecognized political party within the meaning of section 7 of theParliamentary Elections Act, No. 1 of 1981. NUA was a political alliance 3soof two political parties, namely The Sri Lanka Muslim Congress (SLMC)and The Sri Lanka Progressive Front (SLPF). The members or theconstituent parts of NUA were political parties and it did not accommodateindividuals as members. The petitioner at all times was a member ofthe SLMC.
On 3rd July, 2001, the 1st respondent as the leader of the NUAby letter informed the petitioner that he has been expelled from themembership of the NUA with immediate effect. The petitioner underArticle 99 (13) (A) of the Constitution (similar to section 63 of theProvincial Council Elections Act) applied to the Supreme Court for a 3®determination that such expulsion was invalid.
Although NUA nominated the petitioner to be declared elected asa Member of Parliament under Article 99 (A) of the Constitution, hewas not a member of the NUA at any time as the NUA did -notaccommodate individuals as members. At all times he was a memberof the SLMC. The Supreme Court held that the petitioner not beinga member of the NUA could not be expelled from it and therefore thepurported expulsion of the petitioner was invalid since it was null andvoid and of no force or avail in law.370
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The facts of the present petitioner’s case are similar to the factsof Segu Dawood’s case. Like the NUA, the PA had no individuals asmembers. At all relevant times the petitioner was a member of theSLMC. Since the petitioner was a member of a constituent memberorganization (SLMC) by virtue of section iii Rule 3 of the PA constitutionthe petitioner was deemed to be an individual member of the PA forcertain purposes specified in the said rule. This deeming member statusof the petitioner did not confer on the PA the power to exercisedisciplinary control over the petitioner and by virtue of section IX Rule5 (a) the powers of disciplinary control was vested in the SLMC, the 3aomember organization of which he was a member. Apart from the fictionaldeeming membership conferred on the petitioner by the PA constitutionhe was not a member of the PA in the true sense of the word. Thoughhe was declared elected as a Member of the North Central ProvinceProvincial Council under section 61 A(2) of the Provincial CouncilElections Act as a nominee of the PA, the constitution of the PA didnot provide for his expulsion either by the PA or by the CentralExecutive Committee of the PA or by the leader of the PA or by theSecretary of the PA. Accordingly, the purported expulsion of thepetitioner by the Secretary of the PA is invalid on two grounds:390
The purported expulsion of the petitioner by the Secretaryof the PA from the membership of the PA is invalid as thepetitioner was not a member of the PA.
The purported expulsion of the petitioner by the Secretaryof the PA is invalid as there is no provision in the constitutionof the PA which empowers the Secretary of the PA or anyother person or a body of persons in the PA to expel anindividual member of a constituent member organization fromthe PA.
Accordingly, we hold that the purported expulsion of the petitioner 400was invalid since j was null and void and of no force or avail in law.The purported expulsion by the 1st respondent is of no value and it
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shall be treated as non-existent for the purposes of section 63 (1)of the Provincial Council Elections Act.
It now remains for us to consider whether the time limit of twomonths set by the proviso to section 63 (1) of the Provincial CouncilElections Act is mandatory or directory. The relevant portion of theproviso to section 63 reads : “Such petition shall be inquired into bythree Judges of the Court of Appeal who shall make their determination 4towithin two months of the filing of such petition".
The petitioner presented his petition to this court on 11. 12. 2001.Notices were issued on the respondents on 13. 12. 2001. The 1strespondent did not appear till 14. 02. 2002 due to the non-receipt ofnotices consequent to the change of his address. Thereafter, argumentsrelating to the preliminary objection were heard and the order waspronounced on 22. 02. 2002. On three occasions the learned counselfor the petitioner sought postponements of the hearing and on oneoccasion the Court could not sit due to the non-availability of courtstaff who had gone for local government election duty. The application 420was eventually heard on 4. 4. 2002 and we reserved our order for30. 04. 2002. The journal entries set out what happened on each day.
In Visuvalingam v. Liyanagd7) a Bench of nine Judges of theSupreme Court considered whether Article 126 (5) of the Constitutionis mandatory or directory. Article 126 (5) of the Constitution providesthat when an application to the Supreme Court for relief against violationof fundamental rights guaranteed by the Constitution has been made“the Supreme Court shall hear and finally dispose of any petition orreference under this Article within two months of the filing of suchpetition. . .". The words used in Article 126 (5) to set the time limit 430.are similar to the words used in the proviso to section 63 (1) to setthe time limit for the ,Court of Appeal to make its determination.
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. The Supreme Court by majority judgment (divided 7-2) held thatthe provisions of Article 126 (5) of the Constitution are directory andnot mandatory. Dealing with the argument that Article 126 (5) ismandatory and that even a fault of the court is no excuse, Samarakoon,CJ. said that “If that right was intended to be lost because the courtfails in its duty the Constitution would have so provided. It has providedno sanction of any kind in case of such failure. To my mind it wasonly an injunction to be respected and obeyed but fell short of440punishment if disobeyed. I am of opinion that the provisions of Article126 (5) are directory and not mandatory. Any other construction woulddeprive a citizen of his fundamental right for no fault of his. WhileI can read into the Constitution a duty on the Supreme Court to actin a particular way I cannot read into it any deprivation of a citizen’sguaranteed right due to circumstances beyond his control” (pg. 226).
In our view similar observations are applicable in respect of thetime limit set out in the proviso to section 63 (1) of the ProvincialCouncil Elections Act for the Court of Appeal to make its determinationon the petition presented by an expelled Member of a Provincial Council.Accordingly, we hold that the time limit of two months set out in section63 (1) proviso of the Provincial Council Elections Act is directory andnot mandatory. This does not mean that the Judges will totally disregardthe time limit of two months. They will continue to abide by the timelimit unless they are prevented from doing so due to unforeseen andunavoidable circumstances.
The 1st respondent shall pay a sum of Rs. 15,000 to the petitioneras costs.
EDIRISURIYA, J. – I agree.
BALAPATABENDI, J. – I agree.
Expulsion held invalid.