Y. P. DE SILVA GENERAL SECRETARY, SLMP AND ANOTHER V. RAJA COLLURE, SECRETA

026-SLLR-SLLR-1991-V2-Y.-P.-DE-SILVA-GENERAL-SECRETARY-SLMP-AND-ANOTHER-V.-RAJA-COLLURE-SECRETA.pdf


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Y. P. De Silva, General Secretary, SLMP and
Another v. Raja Collure, Secretary, USA and Two Others323
Y. P. DE SILVAGENERAL SECRETARY,SLMP AND ANOTHERV.
RAJA COLLURE,SECRETARY,
USA AND TWO OTHERS
COURT OF APPEAL.
S. N. SILVA, J.
C. A. APPLICATION NO. 88/91.
MAY 31, and JUNE 10, 1991.
Mandamus – Election Law – Nomination to fill vacancy in ProvincialCouncil caused by death of elected member – Provincial Councils ElectionsAct, No. 2 of 1988, s.65 – Public Authority.
Section 65 of the Provincial Councils Elections Act sets out the severalsteps in the filling of a vacancy:
The Secretary of the Provincial Council informs the Commissioner ofElections of the fact of the occurrence of the vacancy [section 65(1)].
The Commissioner calls upon the Secretary of the recognized politi-cal party or the Group Leader of the independent group to which themember vacating office belonged to nominate within a period specified bythe Commissioner a person eligible to be elected as a member to fill suchvacancy [section 65(2)].
A nomination made by the Secretary of the recognized political partyor the group leader accompanied by the requisite oath or affirmation andthe Commissioner declares that person elected to the Council [section65(2)].
If the Secretary or the group leader fails to make such a nominationwithin the period specified the Commissioner declares as elected, the candi-date who secured the highest number of preferences at the election ofmembers next to the last member declared elected from the relevant party orgroup [section 65(2)].
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Where there are no names remaining in the nomination list of therelevant political party or group, the Commissioner informs the Presidentwho may direct the Commissioner to hold an election to fill such vacancy[section 63(3)].
A political party is a voluntary association of its members and is regu-lated by its constitution. Although there is a considerable public interest inthe activities of political parties, they are essentially private organisationssubject to the control of the members and their decisions are made by therespective authorities under each constitution. They are unincorporatedbodies of persons and are not established under any statute. The Parliamen-tary Elections Act, No. 1 of 1981 [section 7(1)] provides for the recognitionof political parties ''for the purpose of elections”. This recognition by itselfdoes not convert a political party into a public authority.
The provisions of section 65 of the Provincial Council Elections Actimpose certain statutory duties on two public authorities: The Secretary ofthe Provincial Council and the Commissioner of Elections.
What is conferred on the Secretary of the Party or the group leader is inthe nature of a right to make a nomination within the specified period andnot in the nature of a duty to make a nomination. The Secretary or thegroup leader, as the case may be, is merely the designated functionary whowill get on behalf of the party or the group. The section does not have theeffect of converting the Secretary or the group leader to a public authority.The Secretary or the group leader of an independent group is not subject tothe norms of Administrative Law as to the manner of discharging his func-tions.
The dispute between the component parts of the Alliance is a private dis-pute.
Hence mandamus does not lie.
APPLICATION for writ of mandamus.
Fail Musthapa P.C. with J. C. T. Kotalawela and Sunil R. de Silva for peti-tioner.
R. K. W. Cunaaekera with K. Balapatabendi for 3rd respondent.
K.C. Kamalaaabayson D. S. G. for 2nd respondent.
Cur.a4v.yult.
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Y.P. De Silva, General Secretary, S.L.M.P. and
Another v. Raja Collure, Secretary,
U.S.A. and Two Others (S. N. Silva, J.)325
July 15, 1991.
S. N. SILVA, J.
The Petitioner has filed this application for a Writ of Man-damus against the 1st Respondent directing him to convey tothe 2nd Respondent the name of the 2nd Petitioner as the per-son who should fill a vacancy that has arisen in the ProvincialCouncil of the North Central Province. At the commencementof the hearing learned President’s Counsel submitted that thePetitioner is not pursuing the reliefs prayed for against the 2ndRespondent.
The 1st Respondent on whom the Writ of Mandamus isSought is the Secretary of the United Socialist Alliance being arecognized political party under section 7 of the ParliamentaryElections Act, No. 1 of 1981 and section 8 of the ProvincialCouncils Elections Act, No. 2 of the 1988. The United Social-ist Alliance contested the Provincial Councils elections andone P. M. K. Tennakoon was elected from its nominationpaper as a member, of the Provincial Council of the NorthCentral Province. He died on 01-12-1990, resulting in avacancy in the Provincial Councils. The Secretary of theCouncil informed the Commissioner of Elections (the 2ndRespondent) of the occurence of the vacancy in terms of sec-tion 65(1) of the Provincial Councils Elections Act (2R1). The-reupon the Commissioner called upon the 1st Respondent tonominate within a period of 30 days from 27-12-1990, a personwho is eligible to be elected as a member of the ProvincialCouncil, to fill such vacancy (2R2). The Writ of Mandamus issought in this context to direct the 1st Respondent to make anomination.
The United Socialist Alliance is a political party thatgained recognition in 1988. The constitution of the party hasbeen produced marked PI. According to clause III of the Con-stitution, it is a voluntary union of the Communist Party ofSri Lanka, the Sri Lanka Mahajana Party, and the Lanka
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Sama Samaja Party. A constituent party is deemed to be anindividual member of the Alliance. The ruling body of theAlliance is an Executive Committee consisting of delegatesappointed by each constituent party [clause IV (a)]. All deci-sions of the Executive Committee “shall be on the basis ofconsensus except as provided for in clause XI” [clause IV (c)].
When the aforesaid vacancy arose in the Provincial Councilthe 1st Petitioner being the Secretary of the S.L.M.P. wroteletter dated 11-12-1990 (PI 1) to the 1st Respondent requestingthat the 2nd Petitioner be nominated to fill the vacancy. Theletter states that the deceased member of the Provincial Coun-cil was a member of the S.L.M.P. and that the vacancy shouldbe filled by a nominee of that party. This claim was made onthe basis of a resolution of the Executive Committee of theAlliance made on 05-11-1988 (P3), which states that a vacancyshould be filled by a nominee of the respective party to whichthe member whose vacancy is being filled, belonged.
On the receipt of the said request the 1st Respondent circu-lated it amongst the two other constituent parties. The Secre-taries of these parties replied by letters marked *1R1’ and *1R3’stating that no nomination should be made by the 1stRespondent to fill the vacancy and that he should permit thevacancy to be filled by the Commissioner according to therelevant provisions. The letter ‘1R2’ of the L.S.S.P. states thatthe previous resolution (P3) cannot be applied since there hasbeen a split in the S.L.M.P. after that resolution was passed.On receipt of the said letters the 1st Respondent wrote letterdated 25-1-1991 (P13) to the 1st Petitioner stating that in viewof the disagreement anongst the constituent parties he isunable to accede to the request made by the 1st Petitioner.Thereafter the 1st Petitioner wrote two letters to the Commis-sioner (P14 & PI5) requesting the Commissioner to intervenein this matter. There was no response from the Commissionerand this application was filed.
SCY.P. De Silva, Genera/ Secretary, S.L.M.P.
and Another v. Raja Collure. Secretary,
U.S.A. and Two Others (S. N. Silva, JJ327
The submission of learned President’s Counsel for the Peti-tioners is that a Secretary of a recognized political party hasseveral statutory functions to perform in relation to elections,being of a public nature and is subject to judicial review in thematter of performing these functions. It was submitted that theduty cast upon a Secretary under section 65(2) of the ProvincialCouncils Election Act is a public duty. In support of the sub-mission that the S.L.M.P. had a right to nominate a person tofill the vacancy, learned Counsel relied upon the resolution ofthe Executive Committee of the Alliance made on 05-11-1988(P3) referred above. The resolution has been made upon con-sensus as provided for in Article IV(c) and should hold gooduntil it is revoked by consensus. It was submitted that the dis-agreement expressed in documents ‘1R2’ and ‘1R3* should notaffect the decision of the 1st Respondent unless the previousresolution itself is rescinded.
Learned Counsel for the 3rd Respondent submitted that thePetitioners are not seeking the performance of a statutory dutybut attempting by the application to enforce a resolution ofthe Alliance made several years ago which is not legallyenforceable by way of mandamus. It was also submitted thatsection 65(2) does not cast a duty on the 1st Respondent butonly gives the 1st Respondent a right as the Secretary of theAlliapce to make a nomination. Since the section provides fora situation where the Secretary fails to make a nomination, theright given to the Secretary cannot be enforced by a Writ ofMandamus. Learned Deputy Solicitor General appearing forthe 2nd Respondent submitted that on an examination of sec-tion 65(2) the public authorities who have statutory duties arethe Secretary of the Provincial Council and the Commissionerof Elections. The Secretary of the political party has only aright to make a nomination and is neither a public authoritynor has he a statutory duty to discharge. Learned Counsel forthe 1st Respondent relied on documents marked ‘1R2’ and‘1R3’ and submitted that the 1st Respondent could not possi-
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bly accede to the request of the 1st Petitioner in view of thespecific disagreement expressed by the Secretaries of the othertwo constituent parties.
An examination of the provisions of section 65 reveals thatthere are several stages in the process of filling a vacancy in aProvincial Council. These stages are as follows:
The Secretary of the Provincial Council informs theCommissioner of Elections of the fact of the occurrenceof the vacancy [section 65(1)];
The Commissioner calls upon the Secretary of the recog-nized political party or the Group Leader of the inde-pendent group, to which the member vacating officebelonged to nominate within a period specified by theCommissioner a person eligible to be elected as amember, to fill such vacancy [section 65(2)];
A nomination made by the Secretary of the recognizedpolitical party or the group leader accompanied by therequisite oath or affirmation and the Commissionerdeclares that person elected to the Council [section 65(2)];
If the Secretary or the group leader fails to make such anomination within the period specified, the Commissionerdeclares as elected the candidate who secured the highestnumber of preferences at the election of members next tothe last member declared elected from the relevant partyor group [section 65(2)];
Where there are no names remaining in the nominationlist of the relevant political party or group, the Commis-sioner informs the President who may direct the Commis-sioner to hold an election to fill such vacancy [section65(3)];
The Writ or the order of Mandamus is the normal meansof enforcing the performance of a public duty by a publicauthority (Administrative Law by H. W. R. Wade, 5th Edition,
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Y.P. Dc Silva, General Secret* rj, S.L.M.P.
end Another v. Raja CoBore, Secretary,
U.S.A. and Two Olbto (S. N. Silva, f.)329
pages 629, 630; Judicial Review of Administrative Action by S.A. de Smith, 4th Edition, page 540). Hence it is necessary toexamine, whether in the aforesaid statutory scheme, the 1stRespondent being a Secretary of a recognized political party isa public authority on whom a public duty is cast by section65(2).
A political party is a voluntary association of its membersand is regulated by its Constitution. Although there is consid-erable public interest in the activities of political parties, theyare essentially private organisations subject to the control ofthe members and their decisions are made by the respectiveauthorities under each constitution. They are unincorporatedbodies of persons and are not established under any statute.The Parliamentary Elections Act, No. 1 of 1981 [section 7(1)]provides for the recognition of political parties “for the pur-pose of elections”. This recognition by itself does not converta political party into a public authority.
The provisions of section 65 of the Provincial CouncilsElections Act impose certain statutory duties on two publicauthorities. They are the duties imposed upon the Secretary ofthe Provincial Council referred in stage (1) above and theCommissioner of Elections referred in stages (3), (4) and (5).
These duties are undoubtedly enforceable by a Writ ofMandamus. The question to be. determined is whether thefunctions reposed in a Secretary of a political party or a groupleader of an independent group is also of the same class. Sec-tion 65(2) requires the Commissioner to call upon a Secretary'of the recognized political party or the group leader of theindependent group, as the case may be, to make a nomination.The words “if such Secretary or group leader nominates within
the specified period” and the words “if on the other hand
such Secretary or group leader fails to make a nominationwithin the specified period the Commissioner shall declare
elected”, reveal the true nature of the functions reposed
in the Secretary or the group leader, as the case may be. I am
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inclined to agree with the submissions of learned Deputy Solic-itor General and Counsel for the 3rd Respondent that thisfunction is in the nature of a right to make a nominationwithin a specified period and not in the nature of a duty tomake a nomination. That, it is not a duty, is borne out clearlyby the alternative provided by the section itself in reposing aduty in the Commissioner to declare the candidate who got thenext highest number of votes elected where the Secretary orthe group leader fails to make a nomination within the speci-fied period. Furthermore, it is seen that the legislature in effectgives this right to the political party or the independent groupto which the member whose seat became vacant belonged. TheSecretary or the group leader, as the case may be, is merelythe designated functionary who will act on behalf of the partyor the group. This section does not have the effect of convert-ing the Secretary or the group leader to a public authority.They remain, as office bearer of the party or as the leader ofthe group, responsible to the party or the group, in regard tothe discharge of their functions. The party of the group willdetermine the manner in which they exercise their functions. Ifany wrong is committed by the Secretary or the group leaderin the discharge of their functions, so as to constitute a causeof action, that would be a matter for a regular action in theCivil Courts. I am inclined to agree with the submission oflearned Deputy Solicitor General that the Secretary of a recog-nized political party and the group leader of an independentgroup are not subject to the norms of Administrative Law asto the manner of discharging their functions. To impose thenorms of Administrative Law and to make them subject ofjudicial review in an application for a prerogative Writ wouldbe in effect to subject the political parties and independentgroups themselves to the norms of Administrative Law and ofjudicial review, which has not hitherto happened in this coun-try or in any other country where judicial review is based onthe English system of Administrative Law. Learned President'sCounsel appearing for the Petitioner conceded that he has notcome across any case in which the actions or decisions of a
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Y.P. De Silva, Genera/ Secretary, S.L.M.P.
and Another v. Raj* Collure,
U.S.A. Alliance and Two Otben (S. N. Silva, J.)331
political party or any of its office bearers have been subject tojudicial review in an application for prerogative Writs.
Learned Counsel for the 3rd Respondent submitted that therelief prayed for relates not merely to the performance of aduty by the Secretary but also to the manner of dischargingthat duty. The relief is for an order to direct the 1st Respond-ent to convey the name of the 2nd Petitioner. Conveying thename of a particular person who should fill the vacancy relatesto The manner in which the 1st Respondent should dischargehis functions. As regards this matter the Petitioner relies onthe resolution of the Alliance made on 05-11-1988 (P3),regarding the manner in which vacancies should be filled. ThePetitioner is thus, in effect, seeking to enforce that resolutionby a Writ of Mandamus. On the other hand, the Secretaries oftwo parties have stated that the resolution should not be fol-lowed due to intervening circumstances. Therefore the matteris really a dispute between the component parties of theAlliance. Learned President's Counsel submitted that the Uni-ted Socialist Alliance is no longer united. The averments in thepetition where serious allegations are made against the otherparties for joining another alliance which is stated to be hostileto the Petitioner’s party, clearly show that there is no allianceas contemplated in the constitution of the United SocialistAlliance. It is a private dispute between the Petitioners partyand the other two parties and there could be no recourse to apublic law remedy to enforce the rights claimed by the Peti-tioners party in this dispute.
For the foregoing reasons I am of the view that the Peti-tioners are not entitled to the Writ of Mandamus as prayedfor. It was submitted by learned Counsel for the Respondentsthat the period within which the 1st Respondent could make anomination has lapsed and that the Commissioner should nowfill the vacancy in the manner provided in section 65(2).
On that basis it was submitted that it would be futile toissue a Writ of Mandamus at this stage. In view of the forego-
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ing findings it is not necessary for me to consider this aspect.The question of futility has to be considered only if a Writcould Ordinarily issue.
The application is dismissed. The Petitioners will pay R$.1,500/- as costs to each of the Respondents.
Application dismissed.