010-SLLR-SLLR-2001-V-2-INDRA-KUMAR-v.-DAYANANDA-DISSANAYAKE-AND-OTHERS.pdf
INDRA KUMAR
v.DAYANANDA DISSANAYAKB AND OTHERS
COURT OF APPEAL.
JJLN.de SILVA J.
CA. NO. 1017/2000.
4™ OCTOBER, 2000.
3 Writ of Certiorari/Mandamus – Quash decision of Returning Officeraccepting nomination paper – Parliamentary Elections Act 1 of 1981 -S. 19, S. 7(5), S.19 1(a), S.19 1(b) See. 46(a) – Constitution -Article 99(3),and 140 – Returning CgftdBr Should he hold a formal inquiry?
The Petitioner. who Is a candidate of the Tamil Elam LiberationOrganisat|wi for the Electoral District of Batticaloa sought to quash thedecisioj^of the Returning officer accepting the nomination papers of^heiimional Unity Alliance, on the ground that the 4th Respondent's^nature on the Nomination Paper was forged and that the 10th'oondent was under detention and that he too could not have signedthewunination Paper.
Held:
The scheme of Parliamentary Elections Act does not require theReturning Officer to conduct a formal inquiry. S.7(5) provides that anInquiry should be held in considering whether or not to recognise apolitical party.
Returning Officer has only to check that the Nomination Paperscontain the total number of candidates. Inquiry must be strictly limitedto the grounds in S. 19(1). The functions are purely ministerial.
(ili) New material placed before Court cannot be taken into account todecide the correctness or legality of the decision of the Returning Officer,to whom such material was not available.
(iv) The specific remedy provided in respect of a forged nomination paperis only against the person responsible for the forgery or for the deliveryof the forged nomination paper.
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(v) Even if a signature of the candidate is found to have been forged theother candidates cannot be penalised for a fraudulent act of some other'person. The entire list cannot be rejected. The voters are given anopportunity to vote for the party/group of their choice.
APPLICATION for a Writ of Certiorari/Mandamus
Cases referred to:
Cooper vs. The Board of Workers of the Wandsworth District -1863 14 CBNS 180.
Ridge vs. Baldwin -1964 A(J 401.
Dumyappa vs. Fernando -1967 2 AC 33^.
Wisemen vs. Baremen -1971 AC 23^
Virakesari Ltd. vs. Fernando – 66 NLR 145.
.)c
L. C. Seneviratne, PC with RonaldPereraandAbdidNajeemfor Petition***'.S. Siripavan DSG with A. R. Ameen, SC for 1st & 2nd Respondents.
Faiz Mustapha PC with Faizar Mustapha and Ms. Faiza Marker for’ 3rdRespondent. ''
R. K. W. Gunasekera for 5th Respondent.
Dr. Jayampathy Wickremaratne with Abdul Kalan for t&e 6th & 7thRespopndents.
N. M. Saheed with Nizam Kariappar for 10th Respondent.
Cur. adv. vult.
October 09, 2000.
J. A. N. DE SILVA, J.The petitioner is a candidate of the Tamil Elam LiberationOrganization (TELO) for the Electoral District of Batticaloa atthe forthcoming general elections due to be held on 10.10.2000.By this application the petitioner seeks a mandate in thenature of a writ of certiorari to quash the decision of theReturning Officer for the Electoral District of Batticaloa,accepting the nomination paper of National Unity Alliance
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(NUA) and for a writ of mandamus directing the 1st and 2ndrespondents that the said nomination papier be deemed tohave been rejected.
The petitioner has pleaded,
That the 4th respondent Chelliah Rajadurai’ssignature on the nomination paper has been forgedand was not lawfully attested by the Justice of thePeace for the reason that the 4th respondent was inMalaysia at that time.
That the IQ* respondent was under detention bythe Specialft^vestigation Unit of the KandyPolice and that he too could not have signed thenomination paper.
The petitioner has further stated that these objections*Ye raised by some others against the nomination papier ofNational Unity Alliance but the Returning Officer rejected theobjections and accepted the nomination paper. The petitionerhimself has not raised any objection. It is observed that thematerial referred to ift paragraphs 17,18,19,21,22,23,24 and27 of the petition were not brought to the notice of theReturning Officer at the time the objections were raised. Thesepiaragraphs contain averments relating to News Paper Reportsregarding the 4th anfl 10th respondents.
When this application was supported in this Court noticewas issued and on the notice returnable date several counselrepresented the 1st, 2nd, 3rd, 5th, 6th, 7th and 10th respondentsand raised several objections and invited the Court to rejectthe petitioners application in limine.
Mr. S. Sripavah, DSG, who appeared for the 1st and 2ndrespondents submitted that the decision of the ReturningOfficer to accept the nomination papier of National Unity
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Alliance was in accordance with Section 19 of the Parliamen-^tary Elections Act No. 1 of 1981 as amended.
Under Section 19 of the Parliamentaiy Election Act theReturning Officer is required to examine the nomination paperreceived by him and reject any nomination paper on anygrounds stated therein. The relevant ground is stated inSection 19(l)(b) as follows.
“that does not contain the total number of candidatesrequired to be nominated in terms of Article 99(3) of theConstitution.”
Section 19(1) (a) provides that objections be entertainedbetween 12 noon and 1.30PM on th'e last date of nominationand that no objections shall be entertained thereafter.Section 19(1) requires the Returning Officer to “examine thenomination paper”. Mr. Sripavan submitted tharcd:hecReturning Officers scope of inquiry is restricted to “exam?f*ethe nomination paper” and cannot go beyond it. It was/y.position that even if the material referred in paragraphs1J,18,19,21,^,23 and 27 of the petition were brought to thenotice of the Returning Officer at the time the objections wereraised the Returning Officer would have to disregard thoseand decide the question as to whether or not to Accept thenomination paper by “examining the nomination papers alone. ”
It was contended on behalf of the petitioner that uponobjections being duly made to any noimnation paper theReturning Officer is legally obliged to hold an investigation orinquiry into the objection in order to decide whether thenomination paper should be accepted or rejected on the basisof the said objections. Counsel submitted that it is implicit inthe provision of Section 19(1) and (l)(a) that an inquiry shouldbe held and relied on the decisions of the following casesCooper Vs The Board of Workers of the Wandsworth Distirct ,Ridge Vs Baldwin , Durayappha Vs Femarudo , Wisemen VsBaremen * and Wade on Administration Law 6 Edition page 502.
It is to be noted that the petitioner has not pleaded that a
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formal inquiry into the objection was requested from theReturning Officer. Furthermore the petitioner has also notpleaded that the aforesaid decision of the Returning Officer t(£accept the nomination paper was invalid for breach of the rulesof Natural Justice.
In any event the scheme of the Parliamentary ElectionsAct No 1 of 1981 does not require the Returning Officer toconduct a formal inquiry. In section 7(5) of the Act itis specifically provided that an inquiry should be held inconsidering whether or not to recognize a political party as arecognised political aprty. It is4 clear from the wording ofSection 19(1) that all^hat the Returning Officer is required toexamine are the nSrqjnation papers received by him. He hasonly to check that theS&Qmination papers contain the total
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candidates. Thus he only does a count of the namestes in the list. Whether a candidate is qualified or nottatter for him at this stage. This inquiry must bedted to the grounds set out in 19(1), the groundsthis application being the number of candidates onie returning Officers function is purely ministerial
and limited to the question whether the nomination papercontains the required number of candidates.«
Mr. Mmtapha, PC, who appeared for the 3rd respondentraised a further point. He referred to Article 140 of theConstitution which deals with the prerogative writs and theauthority of the Court of Appeal “to inspect and examine therecords of any Couft in the first instance or tribunal or otherinstitutions” and* submitted that the record in this case islimited to the nomination paper that the Returning Officer wasrequired to examine under Sectigp 19(1). He cited the decisionin Virakesari Ltd. Vs Fernando where the Supreme Courtdealt with the question as to what Constitutes the “record” ofan inferior Court. In that case the Supreme Court referredto several English decisions and quoted with approval thestatement of Lord Denning that “all those documents whichappear therefrom to be the basis of the decision that onwhich it was grounded.” Relying on this Judgement Counselsubmitted that this Court could only examine the nomination
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papers the Returning Officer was required to examine andnothing more. I am In agreement with this submission. Thehew material placed before the Court cannot be taken intoaccount to decide the correctness or legality of the decisionof the Returning Officer to whom such material was notavailable.
It was also submitted that the petitioner has alternativeremedies in terms of Section 92(2)(d) of the Act to proceedby way of an election petition. The petitioner can also applyfor a writ of quo warranto. Mr. Mustapha, PC, submitted thatthe legislature had specifically addressed its mind to thepossibility of a forged nomination paper and had prescribed acriminal sanction for the same in Section 66(a) of the Act.Under Section 66 of the Act a personjnio forges a nominationpaper or deliver a nomination paper knowing it to-r^e forgedwould be guilty of an offence and upon conviction be i&ffile forimprisonment. He would also be incapable of being an electoror being elected to parliament for a period of seven years, uhehas been elected his election would be vacated from the dalLof the conviction. It is to be noted that under Section 66(aL-forged nomination paper can only result in a membervacating his s^t. This section does not provide any sanctionagainst the political party. The specific remedy provided inrespect of a forged nomination paper is only against the personresponsible for the forgery or for the delivery of the forgednomination paper. Other candidates or the party are notpenalised. This is in conformity with the principles ofproportional representation.
Mr. R. K. W. Gunasekara drew the attention of Court to theParliamentary Elections (Order in Council) that applied toindividual electorates before proportional representation wasintroduced. Under the Order in Council a candidates name isproposed and seconded by electors from the electorates. Thenomination paper is handed over by the candidate himself orby the proposer of the candidate. The political party plays avery limited role by only permitting a candidate to contestas a candidate of the party. A candidate may elect tocontest as an independent candidate. Under the proportionalrepresentations, different considerations apply. Political
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parties or independent groups contest the election. There is noroom for an individual candidate to contest. Those wishingto contest must be nominated by a political party or be amember of an independent group. The voter cast the vote fora particular party or a group and may, if he so wishes markpreferences for up to three candidates. The form of thenomination paper is given in the first schedule to the Act. Acandidate places his signature signifying his consent andcertifying that he is not disqualified. The nomination paperitself is signed by the secretary of the party or the group leader.The difference between the first past the post systemthat applied to parliamentary elections before 1978 and theproportional representation system that applies now is verysignificant. Even if a signature of a candidate is found to havebeen forged the otherckcididates cannot be penalised for afraudulent act of some other person. The entire list cannot berejected. The voters are given an opportunity to vote for theparty or group of their choice.
h. The result the petitioner in the instant case seeks toaiihieve is the exclusion of NUA from election. If the reliefsought is granted, the election will be held without the nameand symbol of NUA appearing on the ballot paper, thereby. depriving the electors an opportunity to consider voting forNUA By^tbfls process the petitioner is seeking to achieve aresult which he cannot achieve by way of an election petition.
I am of the view that to permit this would be to go against thepolicy of the Act and the principles of proportionalrepresentation. This is more so because the seats from thenational list will be decided from the total number of votes aparty receives. I am also mindful of the fact that postal vote isconcluded and great prejudice would be caused to the peoplewho are eligible to vote in the Electoral District of Batticaloa.In the circumstances I uphold the preliminary objectionsraised by the respondents and dismiss this application with-out costs.
Preliminary objections upheld.
Application dismissed.