009-SLLR-SLLR-2002-3-VIGNESWARAN-AND-STEPHEN-v.-DAYANANDA-DISSANAYAKE-AND-OTHER.pdf
CA Vigneswaran and Stephen v. Dayananda Dissanayake and Others 59
VIGNESWARAN AND STEPHEN
v.DAYANANDA DISSANAYAKE AND OTHERS
COURT OF APPEALGAMIN! AMARATUNGA, J.
CA NO. 1822-1823/2001NOVEMBER 21, 2001
Writ of certiorari – Quash decision of Returning Officer – Parliamentary ElectionsAct, No. 1 of 1981, sections 4, 5, 10 (1), 14, 15 (1), 15 (4) and 19 (1) (a-e),
Constitution, Articles 90, 91 (1) (d) (k) and 99 (3) – Candidate not qualified
Objection to nomination papers – Should the nomination paper be rejected?Duties of Returning Officers.
The petitioner in CA No. 1822/2001, as the authorised agent of the EPDP objectedto the nomination paper of the TULF on the basis that one candidate P wasdisqualified, and requested the Returning Officer to reject the nomination list ofthe TULF. The Returning Officer summarily rejected the objection.
Held:
If a valid nomination paper prepared in accordance with the legalrequirements set out in s. 15 (1), (2) and (3) is not delivered in accordancewith s. 15 (4) or (5) it has to be rejected.
If the Returning Officer finds any one or more of the grounds set out ins. 19 (1) (a) – (e) in respect of a nomination paper he is bound by lawto reject the nomination paper.
Any of the grounds set out in s. 19 (1) (a) – (e) do not relate to qualifications/disqualifications of a candidate named in a list.
The law does not contemplate any inquiry/investigation before rejecting anomination paper on the above grounds and no discretion is involved inthe process.
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Per Gamini Amaratunga, J.
“The function of the Returning Officer under s. 19 (1) of the Elections Actis ministerial in nature and there is no decision or a determination made byhim capable of being quashed by a writ of certiorari. He is entitled to relyon the certificate signed by a candidate in column 4 of the nomination paperto say that such candidate is not disqualified in terms of the Constitution.”
APPLICATION for an order in the nature of a writ of certiorari/mandamus.
Cases referred to :
KodakkarPillai v. Madanayake – 54 NLR433at 438.
Bandaranayake v. Weeraratne – (1981) 1SLR10 at 16.
Frewin &Co. v. Ranjit Atapattu – (1993)2 SLR 33 at 61.
Atukoralev. Dissanayake – (1998) 3 SLR206at 213.
R. Chula Bandara with Rashini Mendis for petitioner in CA No. 1822/2001.
Dr. J. de Almeida Gunaratne with Kishali Pinto Jayawardena for petitioner in
CA No. 1822/2001.
Farzana Jameel, Senior State Counsel for 1st and 2nd respondents.
R. E. Thambiratnam with N. Raviraj for 3rd, 4th, 5th and 8th respondents in both
applications.
Other respondents absent and unrepresented.
Cur. adv. vuit.
CA Vigneswaran and Stephen v. Dayananda Dissanayake and Others
(Gamini Amaratunga, J.) 61
November 23, 2001GAMINI AMARATUNGA, J.
These two applications have been filed by the petitioners seeking – 01
a writ of Certiorari to quash the decision of the 2nd respondentReturning Officer and/or the 1st respondent Commissioner ofElections to reject the objection raised on behalf of the EelamPeople’s Democratic Party for the nomination paper submitted bythe Tamil United Liberation Front for the Electoral District ofColombo for the Parliamentary Election to be held on 5th December,2001 and;
a writ of Mandamus directing the 1st and/or the 2nd respondent
to treat the aforesaid nomination paper as rejected.10
Since both applications relate to the same matter and the reliefclaimed by both petitioners is identical, by consent of parties bothapplications were consolidated and heard together. The petitioner inCA application No. 1822/2001 is a citizen of Sri Lanka, a memberof the Eelam People’s Democratic Party (EPDP) and a former Memberof Parliament for the Jaffna District. He is a person nominated bythe EPDP as a candidate for the Electoral District of Colombo atthe Parliamentary Election to be held on 5th of December, 2001and accordingly the authorised agent of the EPDP in terms of section15 (4) of the Parliamentary Elections Act, No. 1 of 1981, as amended 20for the Electoral District of Colombo for the purposes of the saidElections Act. The petitioner in No. 1823/2001 is a citizen of Sri Lanka,a member of the EPDP and a candidate nominated by the EPDPto contest for the Electoral District of Colombo at the election to beheld on 05. 12. 2001.
The President, in terms of section 10 (1) of the ParliamentaryElections Act, No. 1 of 1981 (hereinafter referred to as the Elections
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Act) by proclamation published in Government Gazette ExtraordinaryNo. 1205/12 dated 10. 10. 2001 dissolved Parliament with effect frommidnight of 10. 10. 2001 and fixed the period beginning on 20. 10.2001 and ending 12.00 noon of 27.10. 2001 as the nomination periodduring which nomination papers shall be received by the ReturningOfficers.
Nomination papers for the electoral district of Colombo were tenderedby the EPDP and the TULF for the 2nd respondent Returning Officerwithin the nomination period. Dr. Vigneswaran, the petitioner inApplication No. 1822/2001 has stated in his petition that after theclosing of nominations at 12 noon on 27. 10. 2001, he, as theauthorised agent of the EPDP, scrutinized the nomination papersubmitted by the TULF and found that M. Packiyanathan, the 4thcandidate named in the nomination paper of the TULF (8th respondent)was the Chairman of the Palmyrah Development Board. After thisdiscovery Dr. Vigneswaran has tendered to the Returning Officer awritten objection to the nomination paper of the TULF on the basisthat the said M. Packiyanathan as the current Chairman of thePalmyrah Development Board was not eligible to be a candidate forthe Parliamentary Election. He has requested the Returning Officerto reject the nomination list of the TULF. Under section 19 (1A) ofthe Elections Act it is possible to make an objection to a nominationpaper and Dr. Vigneswaran has tendered his written objection to theReturning Officer within the time specified in section 19 (1A). Thepetitioner has stated that the 2nd respondent without ascertaining theveracity of the objection from the authorised agent of the TULFsummarily rejected the objection raised by him. The 2nd respondentin his affidavit has admitted that he rejected the objection raised byDr. Vigneswaran.
The petitioners have averred that the rejection was contrary tosection 19 (1) (b) of the Elections Act read with sections 14, 15 (1)of the said Act read with Articles 91 (1) (d) (x) and 99 (3) of theConstitution. Further, reasons for the petitioners’ above averment areset out in paragraphs 16 (B) to (D), 17 and 18 of the petition.
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SO
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CA Vigneswaran and Stephen v. Dayananda Dissanayake and Others
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Section 14 of the Elections Act enacts that any person who isqualified to be elected as a Member of Parliament in terms of Article90 of the Constitution may be nominated as a candidate for election.According to Article 90 of the Constitution every person who is qualifiedto be an elector shall be qualified to be elected as a Member ofParliament unless he is disqualified under the provisions of Article 91.Article 91 (1) (d) (x) relied on by the petitioners in support of theirposition that the 4th candidate in the TULF nomination paper (8threspondent to the applications) makes an officer in any public corporation 70holding any office created after November 18, 1970, the initial of thesalary scale of which is, on the date of creation of that office, notless than the initial of the salary scale applicable on that date to anoffice referred to in item (ix) – that is not less than Rs. 72,000 perannum – or such other amount per annum as would, under anysubsequent revision of salary scales correspond to the first mentionedinitial; disqualified to be elected as a Member of Parliament.
Article 99 (3) of the Constitution states that "any recognised politicalparty … may for the purpose of any election of Members of Parliamentfor any electoral district, submit one nomination paper setting out the eonames of such number of candidates as is equivalent to the numberof members to be elected for that electoral district, increased by three.”Section 15 (1) of the Elections Act has reproduced in verbatim thewords of Article 99 (3) I have quoted above with the addition of thesentence "Such nomination paper shall be substantially in Form A setout in the First Schedule to this Act” at the end of the section.
The argument of the learned counsel for the petitioners is that thecandidates to be named in a nomination list are persons qualified-tobe elected as Members of Parliament and if a particular candidatewhose name is included in a nomination paper is a person not qualified 90to be elected as a Member of Parliament, such nomination paper isnot a nomination paper containing the total number of candidatesrequired to be nominated in terms of Article 99 (3) of the Constitution
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and section 15 (1) of the Elections Act and is therefore liable to berejected under section 19 (1) (b) of the Elections Act. The learnedcounsel contended that the rejection of the objection raised byDr. Vigneswaran is contrary to section 19 (1) (b) of the Elections Actand is therefore liable to be quashed by a Writ of Certiorari.
Before setting out the submissions made on behalf of therespondents it is necessary to consider the provisions of sections 15 100and 19 of the Elections Act. I have already referred to section 15(1) which sets out the number of candidates to be included in anomination paper. According to section 15 (2) the written consent ofeach candidate to be nominated and an oath or affirmation, as thecase may be, in the form set out in the seventh schedule to theConstitution taken or subscribed or made or subscribed, as the casemay be, by every such candidate shall be endorsed in the nominationpaper. It is to be noted that in section 15 there is no requirementfor a candidate to make a declaration that he is not subject to anydisqualification to election. However, the 4th column of the form of 110nomination paper set out in the first schedule to the Elections Actcontains the words “Signature of candidates signifying consent andcertifying that he is not subject to any disqualification for election”.According to section 15 (3) the nomination paper of a recognisedpolitical party shall be signed by the secretary of the party and shallbe attested by a Justice of the Peace or a Notary Public. Sections15 (4) and (5) specify the person who shall deliver the nominationpaper to the Returning Officer.
According to section 19 (1) of the Elections Act the ReturningOfficer shall, immediately after the expiry of the nomination period, 120examine the nomination papers received by him and reject anynomination paper for the reasons set out in subparagraphs (a) to (e).Subparagraph (a) relates to a nomination paper not delivered inaccordance with the provisions of subsection 4 or 5 of section 15
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of the Elections Act. Subparagraph (b) relates to a nomination paperthat does not contain the total number of candidates required to benominated in terms of Article 99 (3) of the constitution. Subparagraph
relates to an instance where the deposit required under section16 has not been made. Subparagraph (d) relates to a nomination paperwhich does not contain the endorsement of the consent of one more 130candidates or the oath or affirmation in the form set out in the seventhschedule to the constitution of one or more candidates. Subparagraph(e) refers to a nomination paper not signed by the secretary of therecognised political party or a nomination paper where the partysecretary’s signature has not been attested as required by section15 (3) of the Elections Act. The defects set out in subparagraphs (cOand (e) of section 19 (1) are easily ascertainable by an ordinary visualexamination of the nomination paper. In respect of subparagraph (b)of section 19 (1) the total number of candidates required to benominated can be ascertained by adding three to the number of 140members to be elected for a particular electoral district. Since depositsrequired by section 16 are to be tendered to the Returning Officer,whether the deposit has been made or not may be verified from therecords of the Returning Officer. The person who delivered thenomination can be ascertained from the records of the ReturningOfficer. Thus, all matters set out in section 19 (1) (a) to (e) can beascertained by a simple examination of the nomination paper and therecords of the Returning Officer. No formal inquiry or investigation isnecessary to ascertain all such matters. Section 19 (1) (b), (d) and(e) relate to the legal requirements necessary to make a valid nomination 150paper. This is clear from the words ‘such nomination paper’ in section15 subsection 4 which means a nomination paper prepared inaccordance with the requirements set out in sections 15 (1), (2) and(3). If a valid nomination paper prepared in accordance with the legalrequirements referred to above is not delivered in accordance withsection 15 (4) or (5) it has to be rejected. If the Returning Officer
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finds any one or more of the grounds set out in section 19 (1) (a)to (e) in respect of a nomination paper he is bound by law to rejectsuch nomination paper.
The law does not contemplate any inquiry or investigation beforerejecting a nomination paper on those grounds and discretion isinvolved in the process.
Any of the grounds set out in section 19 (1) (a) to (e) do not relateto qualifications (or disqualifications) of a candidate named in anomination list. Section 19 (1A) provides for making objections to anomination list within the time specified in the section. Section 19 (2)contains the phrase "where any nomination paper has been rejectedby the Returning Officer under subsection (1)“. This specific referenceto subsection (1) indicates that objections contemplated by section19 (1A) are also limited to matters that fall within any of the 170subparagraphs of section 19 (1). If the Legislature has contemplatedobjections to qualifications of candidates to be elected, the Legislaturecould have used the word ‘nominations’ instead of the words ‘nominationpaper’ in section 19 (1A) and the use of the words nomination papermakes it clear that objections referred to in section 19 (1A) are limitedto the matters set out in section 19 (1) (a) to (e).
The learned Senior State Counsel submitted that the Legislaturehas not given any power to the Returning Officer to reject a nominationpaper on the ground of any disqualification of a candidate named ina nomination paper. She submitted that it is a matter to be decided 180by an election Judge under section 92 (2) (c/) in an election petition.
On the other hand the learned counsel for the petitioners submittedthat the Returning Officer should have made inquiries from the authorisedagent of the TULF about the objection raised by Dr. Vigneswaran to
CA Vigneswaran and Stephen v. Dayananda Dissanayake and Others
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the nomination of the 8th respondent. They submitted that the word‘examine’ in section 19 (1) of the Elections Act requires the ReturningOfficer to hold an inquiry about the objection and his decision on thatobjection was a quasi judicial act which necessitated an inquiry beforehis decision. The learned counsel submitted that the Returning Officer’sfailure to hold an inquiry is a breach of the principles of natural justiceand his duty to act fairly. However, both counsel did not specify thescope of the inquiry to be held by the Returning Officer. The learnedSenior State Counsel submitted that the question whether a candidateis subject to any disqualification is a question to be decided afterhearing evidence and such an inquiry by the Returning Officer undersection 19 (1) was never contemplated by the legislature.
All matters to be ascertained by the examination contemplated bysection 19 (1) are matters of record which can be ascertained by themere examination of records without any inquiry or investigation. Thelearned Senior State Counsel submitted that section 22 of the ElectionsAct which requires the Returning Officer to do forthwith the acts setout therein at the expiry of the nomination period and after the rejectionof any nomination paper indicates that a time consuming detailedinvestigation or an inquiry as suggested by the respondents was nevercontemplated by the legislature.
According to section 10 of the Elections Act, the nomination periodand the date of the poll is to be specified in the proclamation issuedby the President under that section. All such acts are to be performedwithin the time frame set out in the proclamation except in the situationdealt with by section 21 of the Elections Act. At the expiry of thenomination period and after the rejection of any nomination papersection 22 requires the Returning Officer to do certain acts forthwith.There is nothing in section 19 to indicate that a discretion is availableto the Returning Officer when he proceeds to reject a nomination paperunder sections 19 (1) (a) to (e).
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This is clear when one compares section 15 (8) (b) under whichthe Returning Officer has to be satisfied that an omission or an errorin a nomination paper is due to inadvertance. [emphasis added] Allmatters set out in section 19 (1) (a) to (e) are matters to be ascertainedfrom the examination of records. Taking all the above matters into 220consideration I hold that the examination contemplated in section 19(1) is an examination of the records to ascertain –
(a) whether the nomination paper has been prepared inaccordance with sections 15 (1), (2) and (3);
(b whether the nomination paper has been handed over inaccordance with the provisions of sections 15 (4) or (5) and;
(c) whether the group to which section 16 of the Elections Actis applicable has made the deposit in accordance with thatsection.
Accordingly, I hold that nothing more is meant by the word ‘examine’ 230in section 19 (1) of the Elections Act and the Returning Officer isnot expected, nor is he empowered, to hold an inquiry and/or to decideon an alleged disqualification of a candidate named in the nominationpaper.
The Returning Officer in paragraphs 13 and 14 of his affidavit hasstated that he is not empowered to consider the objections of thenature and type specified by the petitioners and under section 19 (1)of the Elections Act he is not empowered to inquire into the qualificationor disqualifications for election as a Member or Parliament. In viewof my finding set out about this is the correct position.a«o
In paragraph 8 of his affidavit, the Returning Officer has statedthat the list submitted by the TULF contained the required number
CA Vigneswaran and Stephen v. Dayananda Dissanayake and Others
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of candidates. This a matter he could have ascertained by countingthe number of candidates whose names are set out in the said list(nomination paper). In the same paragraph he has stated that the8th respondent was not disqualified in terms of the Constitution. I haveearlier referred to the 4th column of the nomination paper set outin form A of the first schedule to the Elections Act. The scheduleis as much a part of the statute. The words "signature . . . certifyingthat he is not subject to any disqualification for election" in column4 of the nomination paper, though not appearing in section 15 of theElections Act, are not inconsistent with any of the provisions of theAct. It is a certificate by the candidate that he is qualified to be electedand to be nominated for election in terms of section 14 of the ElectionsAct read with Article 90 of the Constitution. The Returning Officer isentitled to rely on the certificate signed by a candidate in column 4of the nomination paper to say that such candidate is not disqualifiedin terms of the Constitution.
Dr. Gunaratne submitted that a person who is not qualified to benominated as a candidate is not a candidate within the meaning of 260section 15 (1) of the Elections Act and accordingly the ReturningOfficer should have rejected the nomination paper of the TULF onthe basis that the list does not contain the total number of candidatesrequired to be nominated in terms of Article 99 (3) of the Constitution.
A decision that a particular candidate is not qualified to be nominated/elected is a necessary precondition to reject a nomination paper undersection 19 (1) (b). The Returning Officer has no power to make sucha decision and therefore there was no basis for the Returning Officerto reject the nomination paper on the ground set out in section 19(1) (b). If the Returning Officer has proceeded to reject the nomination 270paper on the basis suggested by Dr. Gunaratne his act would havebeen invalid for the reason that he has indirectly done somethingwhich he had no power to do directly.
It is a well-established principle of construction of statues that onecannot indirectly do what he cannot do directly. (Kodakkan Pillai v.
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MadanayakeP' at 438; Bandaranayake v. WeeraratneP at 16 and Frewinand Co. v. Ranjit Atapattu<3) at 61.
For the reasons set out above I reject the contention of thepetitioners and uphold the submission of the learned Senior StateCounsel that the function of the Returning Officer under section 19(1) of the Elections Act is ministerial in nature qpd that there is nodecision or a determination made by him capable of being quashedby a writ of Certiorari (Atukorale v. DissanayakeW at 213).
In view of this conclusion, it is not necessary for me to considerthe other question raised by the respondents, namely whether thechairman or a member of the Board of Directors of a Public Corporationis an officer of such corporation within the meaning of Article 91 (1)(d) (x) of the Constitution.
I, accordingly, dismiss both applications without costs. I must placeon record my appreciation of the assistance given to me by the learnedCounsel for the petitioners and the learned Senior State Counsel. Imust also place on record my appreciation of the assistance renderedby Mr. K. Sripavan, Deputy Solicitor-General, who, at the time bothapplications were supported before me assisted Court on my request.
Application dismissed.
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