045-SLLR-SLLR-1996-V-2-ALEXANDER-V.-CHANDRANANDA-DE-SILVA-COMMISSIONER-OF-ELECTIONS-AND-OT.pdf
ALEXANDER
V.
CHANDRANANDA DE SILVA, COMMISSIONER OF ELECTIONS
AND OTHERS
SUPREME COURT.
DHEERARATNE. J.
WADUGODAPITIYA, J, ANDWIJETUNGA, J.
S.C. APPEAL NO. 1/95.
C.A. ELECTION PETITION NO. 2/94.
1ST NOVEMBER, 1995.
14TH AND 21 ST DECEMBER 1995.
Election Petition – Parliamentary Elections Act – Sections 91 and 92 – Noncompliances relating to counting of preference votes – whether such noncompliance is a ground for avoiding the election of an individual candidateas a member – Interpretation of statutes.
The Appellant was a candidate of the Podujana Eksath Peramuna (PA) atthe Parliamentary Elections in 1994 for the electoral district No.9Hambantota. P.A. won four seats. On the basis of the preference votes forP.A. candidates the Returning Officer declared elected as members the20th, 19th, 17th, and 13th Respondents in that order. The Appellant ob-tained 388 preferences less than the 13th Respondent and was unsuccess-ful. In his Petition the Appellant alleged non-compliance with the provisionsof the Act in the counting of preferences which is a ground set out in section91(1) (b) of the Parliamentary Elections Act No. 1 of 1981 for challenging anelection in respect of any electoral district. The Petitioner sought inter alia,for a declaration that the return of the 13th Respondent as elected wasundue and for a declaration after a re-scrutiny of preference votes for theP.A., that the Appellant is duly elected as a member of Parliament.
Held:
The Petitioner ought, on the ground alleged by him, have prayed foravoidance of the election in respect of the electoral district and not theelection of a member.
The Court cannot by giving a purposive interpretation to section 92(1)of the Parliamentary Elections Act permit a partial avoidance of the election.Such an attempt would cross the boundary between construction and legis-lation.
Cases referred to :
Munasinghe v. Corea (1953) 55 N.L.R. 265.
Bandaranaike v. Premadasa (1989) 1 Sri L.R. 240.
Conganige Emmanuel Wallman Anthony v. S.H.M. Chandrasena S.C.Appeal No. 1/94 S.C. Minutes of 14th July 1994.
Weerasinghe v. Chandrananda de Silva, Commissioner of Elections1922 – 1 Sri L.R. 76.
Cramas Properties Ltd., v. Connaught Fur Trimmings (1965) 1 W.L.R.892.
Regina v. Broadcasting Complaints Commission Ex-parte Owen(1985) 1 Q.B. 1153.
Johnson v. Moreton (1980) A.C. 37.
Federal Steam Navigation Co., Ltd., v. Department of Trade & Industry(1974) 2 All E.R. 97.
In Re Lockwood (deceased) Atherton v. Brook (1957) 3 All E.R. 520.
10 .Jones v. Wrotham Park Settled Estate (1979) 1 All E.R. 286, 289.
AN APPEAL under Section 102 of the Parliamentary Elections Act No. 1 of1981 read with Article 130(b) of the Constitution against an order of anelection Judge.
Faisz Musthapha, P.C. with Mahanama de Silva, N.M. Saheed and GastonJayakody for Appellant.
K.C. Kamalasabayson, D.S.G. with Chanaka de Silva, S.C. for 1st and 2ndRespondents.
Cur.adv.vuit.
26th January, 1996.
DHEERARATNE J.
This is an appeal from an order of the Election Judge dismissing aPetition filed in terms of section 92 of the Parliamentary Elections ActNo. 1 of 1981 on a preliminary objection taken on behalf of the 1 st and2nd Respondents.The objection relates to a pure question of law, andin order to appreciate the nature of that objection and the content ofarguments adduced for and against, it would be convenient initially toset out the legislative background in which the Petition was filed.
Article 101(1) of the Constitution enabled the Parliament, by law tomake provision inter alia for the procedure for election of Members of
Parliament (e); creation of offences relating to such elections (f); thegrounds for avoiding such elections (g); and the manner of determinationof disputed elections and such other matters as are necessary orincidental to the election of Members of Parliament (i). Article 102 (2)provided that until Parliament by law makes provision for such matters,the Ceylon (Parliamentary Elections) Order in Council as amended fromtime to time, shall subject to the provisions of the Constitution, mutatismutandis, apply. By the Parliamentary Elections Act, No.1 of 1981,among some other matters, provision was made for what wascontemplated in subsections (e) (f) (g) and (i) of Article 101 (1) mentionedabove; parts dealing with those matters in the Order in Council wererepealed.
By the 14th Amendment to the Constitution which came intooperation on 24.5.1988, Article 99(2) was amended to enable everyelector, in addition to his vote, to indicate his preferences for not morethan three candidates nominated by the same recognized political partyor independent group in whose favour he was exercising his vote.Thiswas an important departure from the original Article 99(2) which providedfor a recognized political party or an independent group contestingelections to set out in the nomination paper the names of candidatesin order of priority – the order of priority being that determined by suchparty or group. The novel concept of preferential vote, necessitatedamendments to be made to the Parliamentary Elections Act, in severaldirections. Primarily, the priority list had to give way to a list of namessubmitted in the alphabetical order in the nomination paper; eachcandidate had to be assigned a serial number so that preferences ofelectors could be conveniently indicated; counting of votes had to bedone preference – wise too; declaration of results and filling of vacanciesin accordance with the number of preference votes obtained by eachcandidate had to be provided for. These, the legislature sought toaccomplish by enacting the Amendment Act No. 15 of 1988 whichcame into operation on the same day as the 14th Amendment. Thus,subsections of the principal enactment 15(1) (Nomination papers), 20(1)(Uncontested elections), 24(1 )(b) (Notice of the poll), 30(1 )(b) (Noticesto be exhibited at polling stations), 32(1 )(a) (Ballot papers), 53(7)(Counting officer's written statement), 55(h) (Counting officer's sealedpacket of documents to be sent to the returning officer), and 60(1)(Declaration of the result), were repealed and suitable substitutionsmade. Appropriate amendments to the principal enactment were alsomade in Form A of the first schedule (Form of the nomination paper),Form C of the same schedule (Form of the Ballot paper), Form B of thesecond schedule (Form of declaration of identity), and in the thirdschedule (Form of directions for the guidance of a voter in voting to beexhibited outside every polling station and in every compartment ofevery polling station), in order to accommodate preferential voting.
However, the legislature chose to make no amendments to partVII of the principal enactment titled "Election Petitions". I shall setdown in full sections 91 and 92 appearing in that part which are relevantto the present case. It may be noted that the emphasis placed onsome words in those sections are my own.
91. The election of a candidate as a Member is avoided by hisconviction for any corrupt or illegal practice.
92(1). The election in respect of any electoral district shall bedeclared to be void on an election Petition on any of the followinggrounds which may be proved to the satisfaction of the Election Judge,namely –
that by reason of general bribery, general treating or generalintimidating or other misconduct or other circumstances whether similarto those enumerated before or not a section of electors was preventedfrom voting for the recognized political party or independent group whichit preferred and thereby materially affected the result of the election;
non-compliance with the provisions of this Act relating toelections, if it appears that the election was not conducted with theprinciples laid down in such provisions and that such non-compliancematerially affected the result of the election.
(2) The election of a candidate as a Member shall be declared tobe void on an election Petition on any of the following grounds whichmay be proved to the satisfaction of the Election Judge namely-
that a corrupt or illegal practice was committed in connectionwith the election by the candidate or with his knowledge or consent orby any agent of the candidate;
that the candidate personally engaged a person as a canvasseror agent or to speak on his behalf knowing that such person had withinseven years previous to such engagement been found guilty of a corruptpractice under the law relating to the election of the President or thelaw relating to Referenda or under the Ceylon (Parliamentary Elections)Order in Council, 1946, or under this Act, by a court of competentjurisdiction or by the report of an Election Judge;
that the candidate personally engaged a person as a canvasseror agent or to speak on his behalf knowing that such person had beena person on whom civic disability had been imposed by a resolutionpassed by Parliament in terms of Article 81 of the Constitution, andthe period of such civic disability specified in such resolution had notexpired;
that the candidate was at the time of his election a persondisqualified for election as a Member.
The Interpretation section 131 of the Act defines an 'election' (unlessthe context otherwise requires) as meaning an election for the purposeof electing a Member of Parliament.
It is seen that the ground (b) of avoidance of the election in respectof any electoral district consists of three ingredients, which are:-
non-compliance with the provisions of the Act:
appearance that the election was not conducted with the principleslaid down in such provisions; and
such non-compliance materially affecting the results of the elec-tion. [See – Munasinghe v. Cored"1 and Bandaranaike v. Premadasd*>/
The Petitioner unsuccessfully contested as a candidate of thePodujana Eaksath Peramuna (PA) at the parliamentary elections heldon 16th August 1994 for the Electoral District No. 9 Hambantota. The1st and 2nd Respondents are the Commissioner of Elections and theReturning Officer of the Electoral District Hambantota respectively,while the 3rd to 81st Respondents are all other candidates whocontested the said election in that Electoral District. Out of the totalnumber of seven seats allotted to the Electoral District the PA wonfour seats. According to the official results determined in terms of
preferential votes following candidates of the PA were elected with theindicated number of preferences:-
TOC o "1-5" h z 20th Respondent78977
19th Respondent63698
17th Respondent46034
13th Respondent39376
The Petitioner had obtained according to the official results, 38988preferences, which is 388 less than the number secured by the 13thRespondent. The Petitioner made several allegations relating to countingof preferences cast in his favour and non-compliance with theprovisions of the Parliamentary Elections Act in the process of countingof preferences, the details of which I need not elaborate here. Thereliefs the Petitioner prayed for in his Petition are briefly;-
A declaration that the election for the Electoral District of Hambantotawas void to the extent that counting and/or recording of preferencevotes relating to candidates nominated by the PA was not in compli-ance with the Parliamentary Elections Act.
A declaration that the return of the 13th Respondent as electedwas undue, (emphasis added)
A declaration that the petitioner was duly elected and/or ought tohave been returned as a Member of Parliament at the election.
A declaration that such of the candidates of the PA have been dulyelected at the election after a recount.
To make an order permitting the Petitioner or his agents to inspectall ballot papers and other documents relating to the counting of pref-erence votes of the candidates of the PA at the said election in termsof section 63(2) of the Parliamentary Elections Act.
To make an order for a recount and/or scrutiny of the preferencevotes obtained by the candidates of the PA at the said election.
The preliminary objection raised on behalf of the 1st and 2ndRespondents was that the Election Court had no power to grant reliefsprayed for as non-compliance with the provisions of the ParliamentaryElections Act in the conduct of the election alleged by the Petitioner isa ground for avoidance of the election in respect of any Electoral
District in terms of subsection 92 (1) and not a ground for avoidanceof the election of a Candidate as a Member as specified in subsection92 (2); therefore it was contended that the declaration sought for partialavoidance of the election for the Electoral District was bad in law. Insupport of the objection reliance was placed on the decision of thisCourt in Canganige Emmanuel Wallman Anthony v. S.H.M.ChandrasenaP'1 That is a decision on section 92 of the ProvincialCouncils Elections Act, No.2 of 1988. which is couched in almostidentical language as the provision under consideration and where theidentical question was dealt with in detail. The Petitioner on the otherhand relied on another decision of this Court in Weerasinghe v.Chandrananda de Silva, Commissioner of Elections,w where thecontrary view was expressed, somewhat briefly, on the identical questionnow at hand relating to the Parliamentary Elections Act.
Learned DSG for the 1st and 2nd Respondents drew the attentionof Court to the scheme adopted by the legislature to provide for avoidingan election in respect of any Electoral District on the one hand and inrespect of a Member on the other. He submits that in terms of section91 an election of a member is avoided by his conviction for any corruptor illegal practice and further intervention of a Court is unnecessary tounseat him. Section 92 on the whole deals with avoidance of electionsthrough the machinery of an election Petition. Subsection 92 (1) dealsexclusively with the avoidance of the election in respect of any ElectoralDistrict and the grounds of avoidance are set out in limbs (a) and (b)which are of a general nature likely to affect the whole election.Subsection (2) deals exclusively with avoidance of the election of acandidate as a Member and the grounds of avoidance specified inlimbs (a) to (d) in that subsection are of a personal nature relevant to aMember. It was further submitted by him that if non-compliance withthe provisions of the Act as complained of by the Petitioner is proved,that could not have materially affected the election of the 13thRespondent only, but the result of the entire election as no reliancecould be placed on the official counting of all preference votes at theelection in the Electoral District.
Learned President's Counsel for the Appellant, probably in view ofthe provisions of Article 101 of the Constitution, did not urge that thisCourt has any jurisdiction under 'common law' to supply any supposedomission in the Election Law, but he strenuously invited us to adopt apurposive and strained interpretation to section 92. We were rightly notinvited to read limb (b) of subsection 92(1) as also appearing as a limbof subsection 92 (2); that would be tantamount to legislating and notinterpreting. Learned Counsel however submitted that we should readthe words the Election in respect of any electoral district as alsomeaning any part of the election in respect of any electoral district, soas to accommodate avoidance of an election of a Member on the groundOf non-compliance with the provisions of the Act; he contended thatthe "whole" includes a "part" and we are therefore amply justified ingiving the construction he advanced by adopting a purposiveinterpretation. It was contended that one of the purposes of the Actwas to ensure purity of elections, which is the foundation of a democraticsystem of government.
Learned Counsel for the Appellant cited several decisions wherepurposive interpretation was resorted to or discussed and some of theimportant cases cited by him were – Cramas Properties Ltd v. ConnaughtFur Trimmings,(5) Regina v. Broadcasting Complaints Commission,Exparte Owen*6) Johnson v. Moretonf® Federal Steam Navigation CoLtd v. Department of Trade & industry® and In Re Lockwood (deceased)Atherton v. Brook.™ One can hardly dispute the principles so wellenunciated in those decisions.
But, the primary question we have to decide is whether or notconditions necessary for the application of a purposive interpretationfor the words the election In respect of any electoral district havearisen in this case. There must exist a compelling reason for us to givea strained interpretation. Looking at the scheme of the Act, I am notconvinced that any absurdity, or repugnancy, or inconsistency orfrustration of the purposes of the Act or the like has arisen in theapplication of the ordinary sense of those words and I am unable tosay that they attract any secondary meaning capable of advancing theAppellant's case. If I understood the submission of Learned President'sCounsel correctly, his position was that the legislature by someinadvertence overlooked to provide for avoidance of an election of acandidate as a Member on the ground of non-compliance of theprovisions of the Act. Perhaps, it was so supposed in Weerasinghe'scase (supra). Assuming there was such inadvertence, I think it is
relevant in that connection to remind ourselves the words of Lord Diplockin Jones v. Wrotham Park Settled Estated'0) where he said;
I am not reluctant to adopt a purposive construction where
to apply the literal meaning of the legislative language used would leadto results which would clearly defeat the purposes of the Act. But indoing so the task on which a court of justice is engaged remains oneof construction, even where this involves reading into the Act wordswhich are not expressly included in it. Kammins Ballrooms Co Ltd v.Zenith Investments (Torquay) Ltd .* provide an instance of this; but inthat case the three conditions that must be fulfilled in order to justifythis course were satisfied. First, it was possible to determine from aconsideration of the provisions of the Act read as a whole preciselywhat the mischief was that it was the purpose of the Act to remedy;secondly, it was apparent that the draftsman and Parliament had byinadvertence overlooked, and so omitted to deal with, an eventualitythat required to be dealt with if the purpose of the Act was to be achieved;and thirdly, it was possible to state with certainty what were theadditional words that would have been inserted by the draftsman andapproved by Parliament had their attention been drawn to the omissionbefore the Bill was passed into law . Unless this third condition isfulfilled any attempt by a court of justice to repair the omission in theAct cannot be justified as an exercise of its jurisdiction to determinewhat is the meaning of a written law which Parliament has passed.Such an attempt crosses the boundary between construction andlegislation. It becomes a usurpation of a function which under theconstitution of this country is vested in the legislature to the exclusionof the courts.
Considering the purpose which the enactment sought to achieve,could it ever be said that "it was apparent that the draftsman andParliament had by inadvertence overlooked, and so omitted to dealwith, an eventuality that required to be dealt with if the purpose of theAct was to be achieved*? I should think not. This apart, the fact thatthis very purpose to be achieved after the new system of voting wasdecided upon, was to bring the existing provisions into line with thenew concept of preferential voting, and to this and several amendmentswere made to the principal enactment.The indication, therefore, clearly
*1970-2 AIIER 871
is that the attention of the legislature was specifically directed to this,very end. In these circumstances I find it impossible to accept thesuggestion of the Appellant that there was inadvertence on the part ofthe draftsman or Parliament. Thus the only interpretation possible isthat what was enacted did in fact give effect to the intention of thelegislature. Then again, if, as invited to do so by learned President'sCounsel, we were to interpret the words "election in respect of anyelectoral district" to mean and include “any part of it", and therefore tomean "election of a member" by a process of judicial activism orpurposive interpretation, we will then run into certain other difficulties.First, we would have to totally disregard the sharp distinction so neatlydrawn by the legislature between subsections 92(1) and 92(2). Secondly,we have to permit parties to seek partial avoidance of an election inrespect of an electoral district even on the several grounds mentionedin subsection 92(1 )(a) as well, a situation the legislature seems tohave never contemplated. In my view, therefore what learned Presi-dent's Counsel for the Appellant is asking this Court to do is to crossthe boundary between construction and legislation and usurp the functionof Parliament. Such a thing this Court cannot do.
If the allegations made by the Petitioner regarding counting ofpreference votes are correct, I am in agreement with the observationsof my brother Kulatunga, J. in Anthony's case {supra) that the severalacts of non-compliance with the provisions of the Act, having regard totheir magnitude or implications must logically affect the result of theelection of the entire district, and therefore, in terms of the Act, thePetitioner ought to have prayed for avoidance of the? election of theelectoral district.
For the above reasons, the order of the Election Judge is affirmedand the appeal is dismissed with costs payable to the 1st and 2ndRespondents fixed at Rs.10,000/-.
WADUGODAPITIYA, J. -1 agree.
WIJETUNGA, J. -1 agree.
Appeal dismissed.