025-SLLR-SLLR-2002-V-2-MASEEHUDEEN-v.-RETURNING-OFFICER-AND-OTHERS.pdf
CA
Maseehudeen v. Returning Officer and Others
(Gunawardana, J. (P/CA))
189
MASEEHUDEEN
v.RETURNING OFFICER AND OTHERS
COURT OF APPEAL
GUNAWARDANA, J. (P/CA)
CA NO. 556/99
JULY 02, 2001
Local Authorities Elections Ordinance, s. 10A (1) – Expulsion of councillor from
Independent Group – Does he the automatically forfeit his seat as a member
in the Municipal Council? – Constitution Article 99 (13).
Held:
Members of a Local Authority belonging to a recognised politicalparty are specifically mentioned in s. 10A (1) as those who will forfeittheir seats in the Council but mention of those members belonging toan independent group is omitted.
The Parliament intended to perpetrate the legal position that a memberof a local authority will still retain his seat in the Local Council notwithstandingthe fact that he had ceased to belong to the Independent Group, whichnominated him to contest the election.
APPLICATION for a writ of Mandamus.
A. P. Niles with D. W. Johnthasan for the petitioner.
Y. Wijetiieke, DSG with M. R. Ameen, SC for the respondents.
Kanishka Withana for the 2nd respondent.
Cur. adv. vult.
August 07, 2001
GUNAWARDANA, J. (P/CA)
The petitioner has made this application seeking an order of Mandamus 1to compel the 1st respondent (the Returning Officer) to remove the2nd respondent from the membership of the Colombo Municipal Council
190
Sri Lanka Law Reports
[2002] 2 Sri L.R.
and appoint the 3rd respondent to fill the resulting vacancy. Thepetitioner is the leader of the Independent Group No. 3 and at theelection to the Colombo Municipal Council held on 21. 03. 1997, thesaid Independent-Group secured one seat. It was the 2nd respondentwho obtained the highest number of preferential votes and he wasdeclared elected as a member of the Colombo Municipal Council. Hetook the oath of office as a member on 15. 04. 1997.10
There had been a prior agreement dated 06. 04. 1997 betweenthe petitioner and the 2nd respondent whereby the latter hadundertaken to vacate his office or resign from the membership of thecouncil within two years of the date of taking the oath as a memberwhich undertaking had been breached by the 2nd respondent.Thereupon, the 2nd respondent had been expelled by the aforesaidIndependent Group No. 3 – as a candidate of which party he hadcontested the election – he having been nominated by the saidIndependent Group.
The question that demands consideration is as to whether in 20consequence of or as a sequel to the expulsion from the IndependentGroup the 2nd respondent automatically forfeits his seat as a memberin the~municipal council. The answer to this question wouid dependon the construction to be placed on section 10A (1) Local AuthoritiesElections Ordinance, the relevant excerpt of which is as follows: "Ifthe elections officer of the district in which a local authority is situatedis satisfied that any person whose name has been included as acandidate for election as a member of a local authority, in the nominationpaper of a recognised political party has ceased to be a member ofthat party, the elections officer shall, subject to the provisions of 30subsection (2) by notice published in the Government Gazette declarethat such person –
has vacated his office of member, if he had been elected asa member of that local authority: or
has forfeited his rights to have his name retained in the nominationpaper of that recognised political party for filling any casualvacancy, and thereupon such person shall vacate his office asa member of that local authority . .
CA
Maseehudeen v. Returning Officer and Others
(Gunawardana, J. (P/CA))
191
The section reproduced above is conspicuous by the absencetherein of a provision to the effect that a person who had been electedas a member on the nomination of an Independent Group will alsoforfeit his office if the member ceases to belong to the IndependentGroup upon expulsion therefrom. The section 10A (1) (the relevantexcerpt of which is reproduced above) has in contemplation only asituation in which a person who belongs to a "recognised politicalparty" had been expelled from that party or had ceased to be amember thereof. If not for section 10A (1) even.persons ceasing tobe members of recognised political party would not suffer theconsequence, spelt out in section 10 (a) and (b) reproduced above:that is, they would not be held to have vacated office of member;nor would they forfeit their right to have their names retained in thenomination paper of that recognised political party for filling anycasual vacancies that may arise.
I think this is eminently a situation wherein the maxim of interpretation,viz "expressio unius est exclusio alterius" should apply. This meansthat expression or mention of one thing means the exclusion of theother or others not mentioned. Members of a local authority belongingto a recognised political party are specifically mentioned in section10A (1) as those who will forfeit their seats in the council, but mentionof those members belonging to an Independent Group is omitted. Fromthis an intention to exclude all others not specifically mentioned inthe law may be inferred.
In this context it is germane and of interest to observe that underArticle 99 (13) of the Constitution (1978) a person belonging to arecognised political party who ceased to be a member of that partylost his seat in Parliament as also a member of Parliament whobelonged to an Independent Group. The omission to introduce a similarprovision in the Local Authorities Elections Ordinance, – which operatedto unseat a member of a local authority (belonging to an IndependentGroup) who had ceased to be a member of the said group – lendscountenance to the view that such omission was deliberate, and thatParliament intended to perpetuate the legal position that memberof a local authority will still retain his seat in the local councilnotwithstanding the fact that he had ceased to belong to theIndependent Group which nominated him to contest the election.
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Application refused.