REV, SERUWILA SARANKITHI AND OTHERS v. THE ATTORNEY-GENERAL AND OTHERS

049-SLLR-SLLR-2004-V-1-REV-SERUWILA-SARANKITHI-AND-OTHERS-v.-THE-ATTORNEY-GENERAL-AND-OTHERS.pdf


CA
Rev. Seruwila.Sarankithi and others v The Attorney? General and
others (Wijayaratne J.)
REV. SERUWILA SARANKITHI AND OTHERSv
THE ATTORNEY-GENERAL AND OTHERSCOURT OF APPEALWIJAYARATNE, J„
C.A. 852/2002 (Writ)
NOVEMBER 4, 2003
Provincial Councils Act, No. 42 of 1987, section 37(2)(a) – Writ of mandamusto hold a Poll Referendum in the Eastern Province – Constitution, Articles 31,35, 31(3), 44(2) and 87(1) – Immunity of the President – Attorney-Generalmade a party – Maintainability – Referendum Act, No. 7 of 1981, section 2 -Necessary party – Laches – Evidential value of documents.
The petitioner sought a writ of mandamus directing the respondents to takenecessary action to hold a Poll Referendum in the Eastern Province undersection 37(2)(a) of Act, No. 42 of 1987 and a direction on the respondents torefrain from altering the administrative structure of the Eastern Province with-out holding such a Poll.
The respondents objected to the application (1) on the ground that theAttorney-General has been wrongly named as the 1 st respondent in terms ofArticle, 35 (2) necessary parties have not been named, (3) laches, (4) writdoes not lie where there is a discretionary power and (5) documents attachedcannot be relied upon.
Held:
The only instances in which acts or omissions of the President could bethe subject of judicial proceedings through representation of theAttorney-General are in relation to the exercise of any power pertainingto any subject or function assigned to the President under Article 44(4).
Determining the date of the Poll is one vested with the President interms of section 37(2) of Act, No. 42 of 1987. This is not a function cov-ered by Article 44(2). The petitioners cannot institute proceedings mak-ing the Attorney-General a party representing the President under andin terms of Article 35.
In terms of Article 87(1) and section 2 of Act, No. 7 of 1981, conductinga Referendum is the function of the Commissioner of Elections. TheCommissioner of Elections has not been made a party. It is fatal to thisapplication.
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The application for mandamus is made after six months of the gazettenotification. Mandamus will be refused to an applicant guilty of unduedelay.
In terms of section 37 of Act, No.42 of 1987 the power to determine thedate of the Poll and to postpone same is vested in the President andthat too is left to the discretion of the President.
Per Wijayaratne, J.
“Copies of documents which are publications through printed and elec-tronic media are not authentic documents as required by the law of evidenceand cannot be acted upon by a court of law.”
APPLICATION for a writ of mandamus
Cases referred to:
Mallikarachchi v Shiva Pasupathy – Attorney-General (1985) 1 Sri LR 74
Abdul Rahuman v Mayor of Colombo – 69 NLR 211Elmore Perera for petitioner
M.N.B. Fernando, Senior State Counsel for respondent
Cur.adv.vult
January 01,2004WIJAYARATNE, J.
The several petitioners of whom 1st to 6th named are described 01as electors of Eastern Province, make this application invoking thewrit jurisdiction of this Court, against the 1st to 3rd respondentswho are the Attorney-General, the Minister and the Secretary of theMinistry of Home Affairs, Provincial Councils and LocalGovernment.
The substantial relief sought by the petitioners is the grant andissue of a mandate in the nature of writ of mandamus directing therespondents to take necessary action to hold a poll in the EasternProvince under the present administrative structure as required by 20section 37(2)(a) of the Act, No. 42 of 1987. They also sought adirection to the respondents to refrain from altering administrativestructure of Eastern Province without holding such a poll. The
Rev. Seruwlla Sarankithi and others v The Attorney- General and
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above reliefs are sought on the premise that the establishment ofan Interim Administration linking the Eastern Province with theNorthern Province without holding a poll, is imminent and estab-lishment of such interim administrations will result in an irreversibleand irrevocable de facto merger of the Eastern Province with theNorthern Province in blatant disregard of the clear wishes of themajority of electors of the Eastern Province.
The first respondent, responding to the notice of such applica-tion whilst resisting the application raised preliminary objection tothe maintainability of the same. The matter of the preliminary objec-tions was argued before the Bench Comprising the two judgesnamed above, with the appointment of H/LTilakawardena J, (P/CA)to the Supreme Court, before the judgment and order on the mat-ter of such objections, the parties agreed that judgment be given byme alone.as one of the judges before whom the matter was argued.Accordingly I shall deal with each of the objections raised as fol-lows:
The Attorney-General has been wrongly named as the 1strespondent to this application in terms of Article 35 of theConstitution.
The paragraph 2 of the petition and the corresponding para-graph of the affidavit of the petitioners state that
‘The 1st respondent is the Hon. Attorney-General whohas been made as party in terms of the Rules of theSupreme Court and the provisions of Article 35 of theConstitution in as much as the date for the poll….has tobe determined by H.E. the President’
Thus it is the declared position of the petitioners that the 1strespondent is made a party to this application both in terms ofRules of Supreme Court and more so in terms of the provisions ofArticle 35 of the Constitution. This means that the petitioner con-cedes that President who has to determine the date of the poll, can-not be sued or proceedings cannot be instituted against, in terms ofthe provisions of Article 35 of the Constitution. However the peti-tioners elected to have these proceedings instituted against theAttorney-General purportedly in terms of Article 35(3) of theConstitution which reads:
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“The immunity conferred by the provisions of para-graph (1) of this Article shall not apply to any proceed-ings in any court in relation to the exercise of anypower pertaining to any subject or function assigned tothe President or remaining in his charge under para-graph (2) of Article 44 or to proceedings in theSupreme Court under paragraph (2) of Article 129 or toproceedings in the Supreme Court under Article 130(a)relating to the election of the President:
Provided that any such proceedings in relation to the70
exercise of any power pertaining to any such subject orfunction shall be instituted against the Attorney-Genera!'
According to the above provisions of Sub Article 3 the onlyinstances in which acts or omissions of the President could be sub-ject of judicial proceedings through the representation of theAttorney-General are in relation to the exercise of any power per-taining to any subject or function assigned to the President underArticle 44(2) of the Constitution. Defining the nature and the scopeof proceedings which may be instituted against the Attorney- 80General, the Supreme Court in the case of Mallikarachchi v ShivaPasupathi, Attorney-General
“The petitioner’s complaint of illegality of the proscriptionorder made by the President does not qualify to be a pro-ceedings in relation to the exercise of any power pertain-ing to any subject or function in the charge of thePresident under Article 44(2) and hence these proceed-ings could not have been instituted against the Attorney-General. The Attorney-General is not competent to repre-sent President in proceedings not covered by the provisogo
to Article 35(3). Rule 65 of the Supreme Court Rulesrequiring the Attorney-General to be cited as a respon-dent in proceedings for the violation of FundamentalRights under Article 126 of the Constitution does not visu-alise the Attorney-General being made a sole partyrespondent to answer the allegations in the petition/’.
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others (Wijayaratne J.)369
In deed, the petitioners have conceded that the powers of deter-mining the date of the poll is one vested with the President in termsof the provisions of sec. 37(2)(a) of Provincial Council Act, No.42 of1987. There is not even a suggestion that such is a function that iscovered by Article 44(2) of the Constitution. Then the petitionercould not have instituted these proceedings making Attorney-General a party representing the President under and in terms ofArticle 35 of the Constitution, and the objection is validly raised.
Failure to name the relevant parties.
The petitioners seeking the issues of a mandate in the nature ofmandamus to hold the poll have not made the authority whose dutyand responsibility it is to hold the poll referendum to enable theelector to decide whether provinces should be linked or constituteseparate administrative units. In terms of the provisions of Article87(1) of the Constitution and section 2 of the Referendum Act, No.7 of 1981 conducting a referendum is the function of theCommissioner of Elections. Any of the respondents named in thisapplication has no power or authority to conduct a poll for the pur-pose mentioned in this application. Accordingly mandamus will notbe issued as the respondents have no power to perform the actsought to be mandated in this application.
Laches on the part of petitioners
In the application dated 03rd May 2002 the petitioners (in para18 of the petition) concedes that the President by order publishedin the Gazette dated 7.11.2001 the Poll in the Eastern Province waspostponed to 16.11.2002. The petitioners complain that the pro-posal to be put to the electors at the referendum have not beenspecified in the proclamation. The application for mandamus ismade at least six months after the Gazette notification and the peti-tioners do not appear to explain the delay in making this applica-tion. Not even in their submissions, do the petitioners explain suchdelay. The accepted norm in the field of administrative law is that"mandamus is refused to an applicant guilty of undue delay. In thecase of Abdul Rahuman v The Mayor of Colombo (2) with the unex-plained delay, it was held that:
“it is sufficient for us to say that in view of this delay andthe consequences of such delay, an application for awrit of mandamus must fail."
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Writ of mandamus does not lie where there is a dis-cretionary power.
The petitioners in their prayer to the petition seek issuance of a“Writ of mandamus directing the respondents to take necessary
action to hold a poll in the Eastern Provinceas required by sec.
37(2) (a) of the Provincial Councils Act, No. 42 of 1987 as early as hopossible.”
However the petitioners concede in their application in terms ofthe provision .of sec. 37 of the Provincial Councils Act the power todetermine the date of the Poll and to postpone the same is vestedin the President and that too is left to the discretion of the President.
In their submissions too the petitioners concede that “the President
may in her discretion decide to postpone the said polls” It is beyond
argument that in the event of the President exercising her discretionarypower and decides to postpone the poll, there is nothing that any of therespondents could do to hold the poll; for that matter not even the 150Election Commissioner could perform toward the conduct of the poll.Accordingly the petitioners’, application to compel the respondentsto take necessary action to hold, a poll, the date of holding the sameis solely determined by the President in the exercise of her discre-tionary powers, is a misconception of law and is not tenable.
Evedential value of the documents relied on by the petitioner.
The petitioners have attached copies of many a document which
are publications through printed and electronic media, and rely onthem as providing the basis of their contentions as grounds for theissuance of a writ of mandamus. The matter referred to there may 160perhaps be the subject of common knowledge of many a memberof public in this country and even the rest of the world. However thedocuments attached to the petition are not authentic documents asrequired by the law of evidence and cannot be acted upon by aCourt of Law.
Accordingly I hold that the several preliminary objections as dis-cussed above, are taken validly and uphold the same. The mattersof such objections go to the root of the matter of the application andhence the application of the petitioners for the issuance of mandatein the nature of writ of mandamus cannot be maintained. Notice 170refused.
CA
Dedigama v Preventive Officer, Sri Lanka Customs and others
(Udalagama J.)
371
In the result the application is rejected. No order of costs ismade as the application is one made in the exercise of a citizensfranchise.
Application dismissed.