P. SAMARAWEERA, Appellant, and R. M. BANDARA and 2 othees, Respondents

102-NLR-NLR-V-73-P.-SAMARAWEERA-Appellant-and-R.-M.-BANDARA-and-2-othees-Respondents.pdf


530
Samarawcera v. Bandara
1970 Present: H. N. G. Fernando, C.J., Silva, S.P.J., and Sirimane, J.
P.SAMARAWEERA, Appellant, and R. M. BANDARA and 2 others,
Respondents
Election Petition Appeal No. 1 of 1970—JVelimada
Parliamentary election—Nomination papers of a candidate—Written consent oj thecandidate—Imperative requirement—Objections to a nomination paper—Scopeand effect—Ceylon (Parliamentary Elections) Order in Council (Cap. 381),ss. 28, 30, 31 (1), 51, $8 (2) lb).
In a Parliamentary election, t-he provision in section 28 (2) ot the Ceylon(Parliamentary Elections) Order in Council that tho written consent of thocandidate must bo annexed to or endorsed on tho nomination papers by meansof which ho is nominated as a candidate is an imperative requirement. Omissionto comply with this provision permits the Returning Officer, upon objectiontaken before him on this ground on tho Nomination day undor soct ion 31 (1) (6),to reject the nomination papers and to doclaro tho opposing candidate (if thereis only one) to be elected uncontosted. In such a caso, it cannot bo contendedthat the provisions of section 51 aro applicable and that the effect of theomission of the candidate to give his written consent can bo considered only byan Election Judge in tho event of an Election Petition filed after tho poll andnot by the Returning Officer on tho Nomination day.
" Although the opening words of section 31(1) state that objections may bemade to a nomination paper, the succeeding paragraphs of the section permitseveral objections which aro not properly objections to a paper, but are insteadobjections to a nomination."
TT. N. G. FERXANDO, C.J.—Samaratceera v. Bandura
531
Election Petition Appeal No. 1 of 1970—Welimada.
C. Ranganalhan, Q.C., with D. S. Wijeicardene, V. Basnayake and
K.Kanagaratnam for tho petitioner-appellant.
K.Shinya, with P. A. D. Samarasekera and N. Singaravelu, for the1st respondent-respondent.
y. Tittmcclla, Senior Crown Counsel, with G. P. S. Silva, Crown Counsel,for tho 2nd and 3rd respondents-respondents.
Cur. adv. vult.
November 9, 1970. H. N. G. Fernando, C. J.—
On the Nomination Day appointed for the election of a Member ofParliament for Electoral District- No. 12G, Welimada, the Respondentto this appeal was declared by the Returning Officer to be electeduncontested as such Member. Tho election of the respondent wassubsequently challenged in Election Petition No. 1 of 1970 filed by thepresent appellant. Tins appeal is against tho determination of theElection Judge dismissing the petition and holding that the respondentwas duly declared elected.
On the Nomination day, three papers were handed by the appellantto the Returning Officer purporting to nominate him as a candidatefor tho election. Objection to these papers was taken on the ground thattho appellant’s written consent was not annexed to or endorsed on anyof the three papers in compliance with s. 28 (2) of the ParliamentaryElections Order in Council, and this objection was upheld by theReturning Officer. The appellant attempted at the trial to establishthat the omission to comply with s. 2S (2) had been rectified before theexpiration of the time fixed for the nomination of candidates, but tholearned trial Judge decided that the omission had not been rectifiedwithin time. In view of decisions of this Court defining the limits ofits jurisdiction to reverse findings of fact reached by Election Judges,Counsel for the appellant did not attempt to challenge tho correctnessof that decision of the trial Judge.
The submissions of Counsel for the appellant raised only matters oflaw, for tho discussion of which it is necessary to set out here the provisionsof ss. 23 and 31 (1) of the Order in Council:—
2S. (1) Any person eligible for election as a member of Parliamentmay be nominated as a candidate for election.
(2) Each candidate shall be nominated by means of one or.more,but not more than three, separate nomination papers each signedby two persons, whoso names are in the register of electors for tho
532
H. N. G. FERNANDO, C.J.—Samaratvecra v. Bandara
electoral district for which the candidate seeks election, as proposerand seconder respectively. Tho written consent of tho candidatemust be annexed to or endorsed on each nomination paper.
Tho signature of the proposer and the seconder shall bo attestedby a Justice of the Peace, a Commissioner for Oaths or a NotaryPublic.
Every nomination paper shall be substantially in the Form Gin the First Schedule to this Order.
The returning officer ma3'-, at any time between the date of thepublication of the Proclamation or notice referred to ins. 27 and oneo’clock in the. afternoon of the day of nomination, supply a form ofnomination paper to any registered elector requiring the same, butnothing in this Order shall render obligatory the use of a nominationpaper supplied by the returning officer, so, however, that the paperused bo substantially in tho form prescribed by this Order.
31. (1) Objection may be made to a nomination paper on all orany of the following grounds but on no other ground, namely :—
(a) that the description of the candidate is insufficient to identifythe candidate ;
that the nomination paper does not comply with or was not •delivered in accordance with the provisions of this Order;
that it is apparent from the contents of the nomination paperthat the candidate is not capable of being elected a Memberof Parliament;
that the provisions of section 29 have not been observed ;
that, by reason of his conviction for a corrupt or illegal practiceor by reason of the report of an Election Judge in accordancewith the law for the time being in force relating to the electionof Members of Parliament, the candidate is not capable of beingelected as such a Member, and, for the purposes of this paragraph,a copy of the judgment or order of the Court by which he was soconvicted certified by the officer of the Court having custody ofsuch judgment or order supported, in any case where there was
* an appeal against such conviction, by a cop}' of the order of theSupreme Court on such appeal affirming such judgment or order,or a copy of or an extract from the Gazette in which such reportis published as required by subsection (2) (a) of section 82D,shall be conclusive proof of such incapacity. ”
Counsel’s principal submission was that s. 31 (1) does not permit .objection to bo taken on tho ground that the written consent of thecandidate is not annexed to or endorsed on the nomination paper bymoans of which he is nominated as a candidate. I will now summarisethe arguments which were urged in support of this submission. '
H. N. G. FERNANDO, C.J.—Samarawteia v. BaruJara53s
Sub-section (4) of s. 2S provides that a nomination paper shall besubstantially in the Form G in the First Schedule. That Form requiresparticulars to be given of the full name and the address and occupationof the candidate, and the names of the proposer and seconder and theirrespective numbers in the Electoral Register, and provides for theattestation of the signatures of the proposer and seconder. Thus theForm is clearly relatod to the requirement in the first sentence in sub-section (2) of s. 28 and in sub-section (3) of s. 28. The Form howeverboars no reference to the second sentence of sub-section (2) of a. 2S,for it does not include either an item for the endorsement of the candi-date’s consent, or for a statement that such consent is separately annexed-Again, while sub-section (3) of s. 2S requires the attestation of thesignatures of the proposer and seconder, there is no such requirement ofattestation of the candidate’s written consent to his nomination. Bythis lack of emphasis on the matter of the candidate’s consent, theLegislature, it was argued, has indicated that it is a matter only of slightimportance.
Yet another argument in support of the principal submission dependson the history of legislation governing elections to the Legislature ofCeylon. The Legislative Council Ordinance of 1910 did not require thewritten consent of the candidate to bo either endorsed on or annexedto a nomination paper, and this requirement was only imposed in. theState Council Order in Council of 1931. It also appears that in Englandthere was no provision for such written consent until it was imposedin the Representation of the People Act of 1949. The fact that nomi-nations were conducted at earlier stages without a requirement for thesignification of the candidate’s consent, was relied on as showing thecomparative unimportance of that requirement.
Counsel relied strongly on the phraseology in s. 31 (1), that objectionmay bo made “ to a nomination paper ”. Since s. 2S (2) permits thewritten consent of the candidate to bo annexed to a nomination paper,and sinco the Form G does not provide for the signification thereon ofsuch consent, the written consent whether endorsed on the paper orannexed to it, is something distinct from the paper itself and is not anintegral part of the nomination paper. Thus, argued Counsel, anobjection that there was failuro to signify the candidate's written consentis not an objection to the nomination paper, and is therefore not anobjection contemplated in s. 31 (1).
It is convenient to deal firstly with tlio last argument, which appearsto bo fundamental.
Let mo consider in this connection one ground of objection which isstated in paragraph (b) of s. 31 (1), namely that the nomination paper“ was not delivered in accordance witli the provisions of this order ",Such an objection is not truly an objection to the nomination paper ;
K 709(1/71)
534
H. N. G. FERNANDO, C.J.—Samoratrcera v. Bandara
if tho paper accords completely with Form G, then such an objection isnot to tho paper itself, but depends on an extraneous fact, namely tholack of due delivery of what is in fact a proper nomination paper.
Paragraph (c) of s. 31 (1) provides for an objection that it is apparentfrom the contents of tho nomination paper that the candidate is notcapable of being elected a Member of Parliament. Let mo take tho veryexample which Counsel cited, namely that a nomination paper describesthe candidate as a Permanent Secretary or as a District Judge. Heroalso, the nomination paper itself if correctly in tho Form G is beyondreproach. The objection is not that there Is any defect in tho paperitself, but that the particulars correctly given in tho paper establish, ongrounds stated in other provisions of law, the extraneous fact of thecandidate’s disqualification.
Again, paragraph (d) permits an objection on the ground ** that theprovisions of s. 29 have not been observed ”, namely that the properdeposit has not been made. In this case too, the objection is not in anyway directed to the nomination paper, but relates to a quite distinctmatter.
The new paragraph (e) recently added in a. 31 (1) permits an objectionon the grouiid that a candidate is disqualified by reason of a convictionfor a corrupt or illegal practice. Such an objection clearly raises amatter which is not in any way connected with the nomination paperitself or the particulars therein stated. Consideration of such an objec-tion will require examination of tho nomination paper purely for thepurpose of identifying the candidate ; but the question whether he is aperson against whom there has been a conviction of the nature referredto in paragraph (e) is quite unrelated to the nomination paper.
It thus appears that, although the opening words of s. 31(1) state thatobjection may be made to a nomination paper, the succeeding paragraphsof the section permit several objections which are not properly objectionsto a paper, but are instead objections to a nomination. Since suchobjections on quite extraneous grounds are expressly permitted, thelanguage “ objections may be made to a nomination paper ” does not bearits ordinary grammatical meaning in the several contexts which I havenow examined.
Paragraph (6) of 8. 31(1) permits objection on the ground that thenomination paper " does not comply with tho provisions of this Order ”The objection taken in the instant case is prima facie covered by para-graph (b), tho objection being that there was no compliance with theprovision in s. 28(2) that the written consent of the candidate be endorsedon or annexed to tho nomination paper. Counsel’s submission, based onthe language of the opening clause in 8.31(1), is that such an objection isnot truly an objection to a paper. Considering that iri many contextsthe words “ objection to a nomination paper ” are merely a term of art.
H. N. O. FERNANDO, C.J.—Somaraxottra v. Bandara
535
I see no justification for giving those words their strict meaning inrelation to the one ground that the paper " does not comply with theprovisions of this order
Counsel’s argument, to the effect that the endorsement or annexure ofthe candidate’s written consent to his nomination does not form a partof the nomination paper, was designed to base upon that premiss thefurther argument that the objection in this case was not an objection tothe nomination paper within the language of 8. 31(1). But even uponthat premiss, my reasons have been stated for the conclusion that theobjection is covered in paragraph (b) by the words " that the nominationpaper does not comply with the provisions of the Order
Tho submissions earlier summarised involve the contention that nosanction attaches to a failure to signify a candidate’s written consent tohis nomination. There are . in my opinion two answers to this sub-mission—firstly, the language of s. 2S (2) “ the written consent of thecandidate must be annexed to or endorsed on each nomination paper ” isto all appearances imperative; and secondly, an examination of s. 31(1)has shown that the objection taken in this case is referable to the.groundstated in paragraph (6), that the nomination paper “ does not complywith the provisions of this Order ”. I regret that I can derive littleassistance from the fact that the requirement for this written consent wasnot considered necessary in Ceylon until 1931, and in England until 1949.One enactment of the Legislature surely cannot be considered to be moreor less important than another because it was passed into law before orafter the other. For instance, is an objection that a candidate is dis-qualified for election by reason of his conviction for a corrupt practice tobe regarded as less important than all other objections, because para-graph (e) of s. 31(1) was enacted only in 1970 ?
One of Counsel’s submissions was that there is a sanction against thefailure to signify a candidate’s written consent, but that the sanctionoperates, not on nomination day, but thereafter. According to this sub-mission, the objection taken against the appellant should have beenrejected by the Returning Officer; but if the appellant had ultimatelybeon elected after the poll, then his election could have been challengedon an Election petition on the ground of the failure to signify his consentto nomination. At this stage, it was argued; the election could bedeclared void if the Election Judge was satisfied that the appellant hadnot in fact consented to his nomination ; but if the Judge was satisfiedthat tho ap|>cllant had in fact consented, then the election would not bedeclared void because under s. 51 the Judge could hold that the failure tocomply with s. 28 (2) was not material for the reason that “ the electionwas conducted in accordance with tho principles laid down in the Orderin Council and the failure to endorso the consent ha3 not affected theresult of tho election
With respect it seems to mo that this argument is based on a purelytheoretical and unrealistic supposition. If in fact a candidate had notconsented to his nomination, but is ultimately elected, there can in
535H*. N. G. FERNANDO, C.J.—Samarawccra v. Bandara
common sense be only two possible eventualities thereafter; tho firstthat tho candidate remains unwilling to bo a Member of Parliament, inwhich event ho would obviously resign his seat : tho second that, if hodoes not resign, no Court would set at naught the wish of the Electorate,by unseating a person who does desire to servo tho Electorate as itsMember of Parliament. If at the stage when an Election petition is filedho does wish to retain his seat, s. 51 will clearly prevent a Court fromunseating him.
Counsel’s submission that there is so to speak an alternative remedyavailable in tho Election petition for a failure to signify a candidate’sconsent therefore fails.
The real burden of the appellant’s complaint is that, if the requirementfor a candidate’s consent is regarded as imperative, the consequences areharsh in that he is debarred fron contesting an election because of whatappears to be a trivial mistake. But this is no more trivial than thepossibility that a candidate is delayed by a road accident and thus pre-vented from delivering his nomination papers until five minutes after thefixed hour for nomination, or the possibility that a seconder’s number onthe electoral register is by oversight not stated in a nomination paper.In such a case, if no objection is taken on nomination day, there will bean end of the matter, and perhaps a “ sporting ” opponent might be'willing to refrain from taking the objection. But if tho objection is infact taken, it has to be allowed, however trivial the ground may appear.But, just as in the case of the objection in the present case, s. 51 willsurely apply if the objection is not taken on Nomination day/and if thecandidate is ultimately successful at the poll.
There was one other matter argued in the appeal. Section 30 providesthat objection shall be mado to the Reluming Officer. In the instantcase tho objection was mado in Sinhala, and the person to whom it wasaddressed was described in Sinhala by an expression which hears inEnglish not the meaning “ Returning Officer ” but the meaning “ Election"Officer ”. It was argued on this ground that tho objection was invalidin that it was not addressed to the Returning Officer. In fact howeverthe document of objection was handed to the Returning Officer and it wasthat Officer who upheld the objectiQn. The defect if any was thus purelytechnical. But in any event the language of s. SS (2) (6), which refers to“ returning officers, registering officers, presiding officers and other electionsofficers ” shows that a returning officer is regarded as a species of“election officer”. I see no substance in the contention that theobjection was invalid on this ground.
For these reasons the determination of the Election Judge is affirmedand this appeal is dismissed with costs.
Silva, S.P.J.—I agree.
SmiMANB, J.-r-I agree.
Appeal dismissed. .: