022-SLLR-SLLR-2006-V-2-WERAGODA-vs.-DAYANANDA-DISSANAYAKE-AND-OTHERS.pdf
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Weragoda vs Dayananda Dissanayake and others
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WERAGODAVS.DAYANANDA DISSANAYAKE AND OTHERSCOURT OF APPEALSRIPAVAN, J.
SISIRADE ABREW, J.
CA 330/06.
MARCH 16, 17, 20, 21, 22-2006.
Writ of Certiorari-Colombo Municipal Council-Local Authorities ElectionsOrdinance-Amended by Act No. 25 of 1998-section 28, section 28 (1 -5)-section31 (1) bb, section 69-section 12(1) section 20 (1), section 88-589.
Youth candidate not eighteen years of age on the relevant date-rejection ofnomination paper by returning officer-validity?- Does the disqualification of acandidate before the election invalidate or affect the nomination paper of apolitical party-what is the relevant date?- Who is a youth candidate?
The returning officer rejected the nomination paper of the United NationalParty on the basis that one of the youth candidates nominated in the saidnomination paper is not 18 years of age as at 1,6.2004-the relevant date, andthat in the circumstances, the nomination paper did not contain the total numberof youth candidates as required to be nominated.
HELD:
The defined circumstances in which a nomination paper couldbe rejected are set out in section 31-Local Authorities ElectionsOrdinance as amended by Act, 25 of 1990.
Of the 7 grounds spelt out, one of the grounds is section 31(1)(bb) – rejection of a nomination paper that does not contain thetotal number of youth candidates as required to be nominatedunder section 28(1 A).
Section 28 (A) read with section 31 (1) (bb) yield results whichare mandatory in nature and capable of a strict constructionempowering the returning officer to consider not only the totalnumber but also whether youth candidates fall within section 89.If the mandatory requirement as to the age is not complied with,then the returning officer has the power to reject the nominationpaper in terms of section 31 (1) (bb).
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The process of revising the electoral register commences undersection 12 (1) and comes to an end with the application undersection 20 (1) of 44 of 1980. Accordingly the electoral register forthe year 2004 came into operation with effect from 1.6.2005, andcontinues to be the operative electoral register in terms of section20 (2) Of Act 44 of 1980.
(5} The youth candidate was only 17 years 3 months 2 days as at1.6.2004 which is below the age stipulated in section 89.
Per Sripavan, J.
“When the language of the law admits no ambiguity and is very clear, it is notopen to the Court to put its own glass in order to bring out some other meaningwhich is artificial or unnatural and not borne out by such language*.
APPLICATION for Writs of Certiorari and/or Mandamus.
Faiz Musthapha, PC with Upul Jayasuriya, Ronald Perera, SanjeewaJayawardena, Ms. Faiza Marker for petitioner.
R. de Silva, PC, S. G., with A. Gnanathasan, D. S. G., W. J. S. Fernando,
S. G., and N. Pulle, SSC for 1st, 2nd, 3rd, 4th and 20th respondents.Manohara De Silva for 9th Respondent.
March 24,2006.
K.SRIPAVAN, J.The petitioner who is the General Secretary of the United National Partyon 16th February 2006 submitted the nomination paper of his party to thesecond respondent in order to contest the election for the ColomboMunicipal Council. It is alleged in paragraph 18 of the petition that thepetitioner verily believes that the second respondent purported to rejectthe nomination paper upon the erroneous basis that one of the youthcandidates nominated in the said nomination paper, namely, DickweilaMuthukumara Palavinnige Supun Lakmal (hereinafter referred to as “LakmaT)was not eighteen years of age as at 1st June 2004, which the secondrespondent contended was the relevant date for ascertaining as to whetherthe said candidate falls within the classification of a “youth” LearnedPresident’s Counsel for the petitioner urged that the summary rejection of
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the nomination paper was on a misconceived basis that the entirenomination paper was fatally vitiated in as much as it did not contain thetotal number of youth candidates as required to be nominated under section28 (1 A) of the Local Authorities Elections Ordinance as amended. Thesecond respondent in his statement of objections avers that after therejection of the nomination papers he addressed all persons who werepresent and gave reasons for the rejection of their nominaiton papers. It isnoted that the letter dated 17th February 2006 marked P6 sent to thepetitioner by the second respondent did not indicate the grounds of rejectionof the nomination paper.
The rejection of the nomination paper undoubtedly affects the rights ofthe petitioner and the candidates whose names appear in the nominationpaper intending to contest at the election. Therefore, the Returning Officeris under a legal duty to furnish reasons for the rejection of the nominationpaper. This is considered to be a good practice for Returning Officers toformulate their grounds of rejection and for those affected to be informed ofsuch reasons. The significance of a reasoned decision as distinct fromone which is unreasoned is that it allows an affected person to make anearly assessment as regards the likelihood of a challenge by judicial review.In Breen Vs. A. E. U.at 191, Lord Denning M. R. argued that fairnessmight require the giving of reasons as a fundamental of good administration.In Lanka Multi Moulds (Pvt) Ltd Vs Wimalasena, Commissioner of Labourand Others® at 152 Fernando, J observed that “if the citizen is not madeaware of the reason for a decision he cannot tell whether it is reviewable,and he will thereby be deprived of one of the protections of the CommonLaw which Art. 12 (1) now guarantees. Today, therefore, the conjoint effectof the machinery for appeals, revision, judicial review and the fundamentalrights jurisdiction, is that as a general rule tribunals must give reasons fortheir decisions.” On the same issue, Wade on Administrative Law -9thEd. at page 945remarked that “the duty to state reasons is normally heldto be mandatory so that a decision not supported by adequate reasonswill be quashed or remitted to the deciding authority”. The failure to giveproper and adequate reasons may be considered as an error on the faceof a record even if the duty to give reasons is not mandatory. I do not makeany further observation on this matter as the reason for the rejection of thenomination paper has now been disclosed to court and to the petitioner.
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The defined circumstances in which a nomination paper could be rejectedare set out in section 31 (1) of the Local Authorities Elections Ordinanceas amended by Act No. 25 of 1990. Seven grounds of rejection are speltout therein. One of the grounds refered to in section 31(1) (bb) is that “thereturning officer shall, immediately after the expiry of the nomination period,examine the nomination papers received by him and reject any nominationpaper that does not contain the total number of youth candidates asrequired to be nominated under subsection 1 A of section 28.”
In terms of section 28 (1A), 40% of the total number of candidatesnominated in such nomination paper shall consist of youth. TheCommissioner of Elections acting in terms of Section 28 (1B), bypublication in the Gazette specifies the total number of youth candidatesto be nominated in respect of each local authority. Section 89 defines“youth” as follows:-
“Youth” means a person not less than eighteen years of age as at 1stJune of the year in which the revision of the operative electoral registercommenced under the Registration of Electors Act No. 44 of 1980 and notmore than thirty five years of age as on the last day of the nominationperiod specified under this Ordinance in respect of the election at whichhe seeks to be a candidate.”
Section 28 (2) provides that the nomination paper submitted must besubstantially in the form set out in the first schedule to the Ordinance.One of the requirements of the nomination paper as set out in the firstschedule is that the Secretary of a recognized political party or the GroupLeader of an independant group must certify that all youth candidateswhose names appear in the nomination paper are within the age limitstipulated in section 89. This imperative requirement of certification asregards the youth candidates has been inserted for some useful purposeand it must be construed in the light of the purpose and object of theOrdinance itself. “The significance of this requirement is brought to zenithby the provision in Section 28 (5) that the signature should be attested bya Justice of the Peace or by a Notary Public” – per His Lordship S. N.Silva, C. J. in Ediriweera, Returning Officer Vs Kapukotuwa, GeneralSecretary, United National Party<3> (2003) 1 S. L. R 228 at 234. It is clearfrom the provision contained in section 28 (1 A) that the candidates referredto under Group II of the nomination list shall consist of youth (emphasis
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added). The court must therefore advance and promote the object of thelegislation keeping in mind the purpose and the context in which theprovision relating to “youth candidates” has been used both in the Ordinanceand in the nomination paper. It is therefore apparent that the law requiresthat all the candidates referred to under Group II of the nomination papermust satisfy the definition of “youth" as contained in Section 89. Further,the use of the words “such nomination paper shall be delivered to thereturning officer.” in section 28 (5) necessarily imply that the nominationpaper meets the requirements contained in subsections 1 A, 2,4,4A and5 of section 28. Accordingly, the statute makes it incontrovertibly clearthat a youth candidate named in Group II of the nomination paper must fallwithin the stipulated age limit as contained in section 89. The intention ofParliament from the words used in the Elections Ordinance stronglysuggests that the court must apply them as they stand in order to achievea result more in conformity with presumed parliamentary intention. Theprimary rule of construction is to intend the legislature to have meant whatthey have actually expressed. The object of all interpretation is to discoverthe intention of the legislation. The words”…as required to be nominatedunder subsection (1 A) of section 28” used in section 31 (1) (bb) admit onlyone meaning, namely the total number of candidates nominated underGroup II shall consist of youth candidates. When the language of the lawadmits of no ambiguity and is very clear, it is not open to the court to putits own gloss in order to bring out some other meaning which is artificial orunnatural and not borne out by such language. Section 28 (1 A) read withsection 31 (1) (bb) yield results which are mandatory in nature and capableof a strict construction empowering the returning officer to consider notonly the total number but also whether youth candidates fall within thedefinition of section 89. If the mandatory requirement as to the age is notcomplied with, then the retuning officer has the power to reject thenomination paper in terms of section 31 (1) (bb).
Learned President’s Counsel for the petitioner however contended thata youth who is under eighteen years of age attracts the disqualificationset out in section 9 and the legislature never intended to include“disqualification of a candidate” as one of the grounds on which a returningofficer may reject the nomination paper. In any event, counsel urged thatdisqualification of a candidate before the election will not invalidate oraffect the nomination paper of a political party as provided in section 69A.
I am unable to agree with this submission of the learned President’s Counselfor the reason that the returning officer acting under section 31 (1) has
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jurisdiction to determine whether a candidate referred to in Group II of thenomination list is a “youth” candidate within the meaning of section 89.This could be done by the returning officer upon a visual examination ofthe nomination paper and the other relevant documents tendered alongwith such nomination paper. In exercising his jurisdiction, the returningofficer is obliged to act in strict obedience to the law which imposes onhim a simple and definite duty in respect of which he has no choice.
I shall now proceed to consider whether Lakmal was not less thaneighteen years of age as at 1 st June of the year in which the revision of theoperative electoral register commenced under the Registration of ElectorsAct No 44 of 1980 as provided in section 89. It is not in dispute thatLakmal was born on 28th February 1987 and the revision of the electoralregister for the year 2004 commenced in terms of section 12 (1) of Act No.44 of 1980 on 1 st June 2004 as evidenced by Y1. After the revision, on 1 stJune 2005 the register was certified in terms of section 20 (1) of Act No.44 of 1980 and a notice was published in the gazette as evidenced by P8that the register was open for inspection at the Election Office. The processof revising the electoral register commences under section 12 (1) andcomes to an end with the certification under section 20 (1) of Act No. 44 of1980. Accordingly, the certified register for the year 2004 came intooperation with effect from 1 st June 2005 and continues to be the operativeelectoral register in terms of section 20 (2) of Act No. 44 of 1980. Noevidence has been placed to establish that this certified register has beensuperceded by another register certified under section 20 (1) of Act No. 44of 1980. Therefore, I conclude that the revision of the operative electoralregister commenced on 1st June 2004 as reflected in Y1. Taking intoconsideration the date of birth of Lakmal, he was only 17 years 3 monthsand 2 days as at 1st June 2004 which is below the age stipulated insection 89. Thus, I hold that the second respondent did not commit anyerror of law in rejecting the nomination paper submitted by the petitioner.
In view of the foregoing, the petitioner’s application is dismissed in allthe circumstances without costs
DE ABREW, J. – / agree.
Appeal dismissed.