013-SLLR-SLLR-2000-V-3-DEVANANADA-v.-DAYANANDA-DISSANAYAKE-COMMISSIONER-OF-ELECTIONS-AND-OTHERS.pdf
DEVANANDA
v.DAYAN AN DA DISSANAYAKE(COMMISSIONER OF ELECTIONS AND OTHERS)
COURT OF APPEALYAPA, J.
KULATILAKE, J.
CA 314/9919™ JULY, 199924th SEPTEMBER. 199919th OCTOBER. 199912™ NOVEMBER 199906™. 07™ DECEMBER. 199901st. 14™, 30™ MARCH, 200027™ APR1AL. 2000
Parliamentary Elections Act 1 oj 1981 – S. 64 (2) (4) Filling of vacancies ifnomination paper is exhausted – Nomination of members outside thenomination list-Is it permissible? Constitution – Article 13(b), Article 101(1)(h) – otherwise.
The Petitioner is a Member of Parliament and the Secretary General of arecognised political party E. P. D. P. The Petitioner contested the electoraldistrict of Jaffna at the General Elections of 1994 as the Leader of theIndependent Group 2. which had 13 members in the Nomination Paper;of the 13 candidates Nos 1 – 9 were declared elected. Soon after theelection No. 9 in the list resigned and No. 10 was thereafter declaredelected. The Petitioner contends that Nos. 11. 12. 13 (3rd. 4th and 5thRespondents) resigned. Nos. 4 and 10 were expelled from the Party.
The Petitioner thereafter made representations to the Is' Respondentseeking permission to nominate two members from outside theNomination list, as the nomination paper has already been exhausted.The Is1 Respondent however certified the names of the 3rd (No. 1 Hand the4°’ Respon-defendant (No. 12): and gazetted the names of the 3rd and 4lhRespondents declaring them as members of Parliament.
The Petitioner challenged this decision on the ground that, it is unlawfulwithout authority more. so. as the 3rd and 4U’ Respondents had resignedfrom the group. The 3rd and 4,h Respondents contention is that, the letterof resigntion were not genuine and that they have been forged orfabricated.
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Held :
The Respondents have at no stage denied the signatures appearingin the letter of resignation. Their argument seems to be that, thePetitioner has made use of the papers obtained by him signed inblank at or about the time of the General Election of 1994 tofabricate these letters of resignation.
Per Yapa J.,
“It is hard to believe firstly that the Respondents who were intendingto represent the voters in Parliament are so irresponsibleand foolish to have given such papers signed in blank, so as togive him a free hand to use their signatures for whatever purposethe Petitioner thought it fit. secondly even assuming that theRespondents were so stupid to have given such papers signed inblank, it would still appear impossible for one to believe that thesignatures are so placed in the manner that is found in theresignation letters."
According to S.64(3), exhaustation of a Nomination Paper can takeplace not only by Election or otherwise but also where none of thecandidates whose names remain on such a nomination paper havesecured any preferences.
The word “otherwise" in S.64(3) has an extended meaning,exhausted by election or otherwise would necessarily include,death, expulsion, or resignation of a candidate whose nameappears in the nomination paper. Such an interpretation is inharmony with the 1978 Constitution.
Further held –
(i) In the event of there being no dispute or controversy with regard tothe expulsion or the resignation, the authorities should complywith the provisions of S.64(3) and S.64(4) of the ParliamentaryElections Act. for the filling of vacancies. If a situation arises wherethere is a dispute or controversy on the matter of expulsion orresignation then such a dispute may well have to be resolved byCourt before the Authorities could take action in terms of S.64(3).S.64(l).
APPLICATION for Writs in the nature of Certiorari and Mandamus.
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Case referred to :
1. National Association of Local Government Officers vs. BoltonCorporation – 1943 Ac 166 at 177.
L. C. Seneviratne P. C.. with U. Abdul Najim for Petitioner.
K. Sripavan D. S. G.. for Ist and 2nd Respondents.
Srinath Perera, P. C„ with Nevil Ancuida for 3rd Respondent.
Faiz Musthapha P. C.. with N. M. Suhaid and A. JVf. Pandiraratne for 4lhRespondent.
K. S. Ratnavel with Gamini Senanayake for 5Ul Respoondent.
Cur. adv. vult.
August 04, 2000.
HECTOR YAPA, J.The petitioner is a Member of Parliament representingElectoral District of Jaffna. He is also the Secretary-General ofthe Eelam People’s Domocratic Party (hereinafter referred to asthe E. P. D. P.) which is a recognized political party. Petitionercontested the Electoral District of Jaffna at the GeneralElections of 1994 as the leader of the Independent GroupNo. 2. At the relevant time the 1st respondent was theCommissioner of Elections. The 2nd' respondent was theReturning Officer for the Electoral District of Jaffna in his exofficio capacity. The names of the 3rd, 4th and 5th respondentsappeared as candidates Nos. 11. 12 and 13 in the nominationpaper, according to their preferential vote at the poll (GeneralElections 1994) for the Electoral District of Jaffna. The 6,hrespondent was the Secretary General of Parliament.
Petitioner has stated in his application dated 12.04.1999,that prior to the 1994 General Elections the E. P. D. P. and theUnited National Party (hereinafter referred to as the U. N. P.)came to an understanding to submit their nominations underthe leadership of the petitioner as an Independent Group forthe Electoral District of Jaffna to contest the Parliamentaiy
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Elections of 1994. Consequent to the said understandingthey formed an Independent Group under the petitioner’sleadership which consisted of 10 members of the E. P. D. P.and 3 members of the U. N. P., who are the 3rd. 4th and the 5threspondents in this application. These 13 members submittedtheir nomination paper for the Parliamentaiy Elections of1994, to the Returning Officer for the Electoral District ofJaffna and this group was recognised for all purposes as theIndependent Group No. 2, in terms of the provisions of theParliamentary Elections Act, No. 1 of 1981, contesting theElectoral District of Jaffna. After the poll these 13 candidatesfrom the Independent Group No. 2, were placed in the followingorder according to their preferential vote.
Nythiyanantha Douglas Devananda.
Alagaiah Rasamanickam.
3- Umapathisivam Baskaran.
Rajendram Ramamoorthy.
Nadarajah Atputharajah.
Murugesu Chandrakumar.
Sangarapillai Sivathasan.
Sinniah Thangavel.
M. A. Gafoor Zafarullah.
Rajendram Rameshvaran.
Suppiah Jeganathan.
Mohamed Sultan Raheem.
Nadarajah Sivarajah.
Of the said 13 candidates, candidates Nos. 01 to Nos. 09,were declared elected to the Parliament from the IndependentGroup No. 2, for the Electoral District of Jaffna. Soon afterthe election held in 1994, Mr. M. A. Gafoor Zafarullah tenderedhis resignation and in terms of Parliamentary ElectionsAct, No. 1 of 1981, Mr. Rajendram Rameshvaran candidateNo. 10, was declared elected by the Commissioner of Elections
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to represent the Independent Group No. 2, for the ElectoralDistrict of Jaffna.
The petitioner alleges in his application that the 3rd, 4<hand 5th respondents who were candidates Nos. 11, 12 and 13according to the preferential vote at the 1994 Elections,tendered their resignations from the Independent Group No. 2,for the Electoral District of Jaffna by their respective lettersdated 22.07.1995 and thereby they ceased their relationshipwith the Independent Group No. 2. In their letters ofresignation addressed to the petitioner the.3rd, 4th and 5lhrespondents have inter alia stated as follows:
“I wish to inform you that I am no longer in agreement withthe policies followed by you and I am not able to continue asa member of the Independent Group led by you. I thereforewish to inform you that this letter should be treated as myimmediate resignation from the Independent Group No. 2, forthe Electoral District of Jaffna for all purposes."
The three resignation letters of the 3rd, 4th and 5threspondent are produced marked Pl(a), P2(a) and P3(a).Thereafter the petitioner has forwarded the said resignationletters of the 3rd, 4th and 5th respondents to the ReturningOfficer for the Electoral District of Jaffna, (2nd respondent)for his information and necessary action along with thepetitioner s covering letters dated 24.07.1995 produced markedP1, P2 and P3. In addition the petitioner has sent the copies ofthe said letters of resignation of the 3rd, 4th and 5th respondentsunder registered cover to the Commissioner of Elections(1st respondent) and the Secretary" General of Parliament(6th respondent) for their information and necessary action.
The petitioner has further stated in his application thatin August 1994, a Member of Parliament of his group inwriting indicated his willingness to resign from Parliament andtherefore by his letter dated 04.09.1995 produced marked P5.the petitioner sought the advice of the 1st respondent with
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regard to the filling of the vacancy, in the event of the saidMember of Parliament resigning, since by then the nominationpaper of the Independent Group No. 2, for the Electoral Districtof Jaffna has already been exhausted by the resignation of thethree remaining members of the group referred to above,namely, 3rd, 4th and 5th respondents. The l6' respondent(Commissioner of Elections) replied the said letter (P5) by hisundated letter of September 1995, produced marked P6.which stated inter alia as follows. “There is no provision in theParliamentary Elections Act No. 1 of 1981 to cause a vacancyto be filled by a member nominated outside the nominationpaper until all the candidates whose names appear in thenomination paper submitted by any recognised political partyor Independent Group in respect of an electoral district havebeen exhausted by election or otherwise." Thereafter thepetitioner by his letter dated 20.10.1995 produced markedP7, sought clarification regard to the contents of the said letterP6, for which no reply was received. The petitioner howeverstated that subsequently he received a letter dated 15.12.1995produced marked P8 from the Returning Officer for theElectoral District of Jaffna Mr. C. Pathmanathan who was thepredecessor in office of the 2nd respondent, which statedthat there is no provision under the Parliamentary ElectionsAct, No. 1 of 1981, for a candidate to resign from hiscandidature. It would appear that this reply is in response toa letter sent by the petitioner dated 24.07.1995, which has notbeen produced in the case. The petitioner did not take anyfurther steps on the said letter P8, since Mr. R. Ramamoorthydid not resign and therefore the need to fill his vacancy as aMember of Parliament did not arise.
According to the application of the petitioner itwould appear that, consequent to the two decisions ofthe Supreme Court in S. C. Special Applications Nos. 02/99and 03/99 delivered on 30.03,1999, affirming the validityof the expulsion of the two Members of Parliament,namely. Mr. Rajendram Rameshvaran and Mr. Rajendram
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Ramamoorthy from the Independent Group No. 2, two seatsof the Independent Group No. 2, for the Electoral District ofJ affna in Parliament became vacant with effect from30.03.1999.Hence the petitioner made representation to the 1st respondenton 01.04.1999, stating that the nomination paper, of theIndependent Group No. 2, for the Electoral District of Jaffnahas already been exhausted with effect from 22.07.1995, dueto the resignations of the 3rd, 4th and 5th respondents andrequested the lsl respondent to permit 'the petitioner tonominate two members from the Independent Group No. 2,(which has to be out side the nomination list) to be declaredelected to represent the said group for the Electoral Districtof Jaffna in Parliament, in terms of the provisions of theParliamentary Elections Act, No. 1 of 1981. This letter isproduced marked P9. In this matter the position taken up bythe petitioner is that, having regard to the constitutional andother statutory provisions as referred to in his application, theIs1 respondent who is the Commissioner of Elections is legallybound to act in the following manner.
That the 1st respondent (Commissioner of Elections) isbound by law to call upon the 2nd respondent (ReturningOfficer) to furnish his return in Form M, two names fromthe Nomination Paper of the Independent Group No. 2,for the Electoral District of Jaffna, in order to fill thevacancies created in Parliament, in view of the abovementioned decisions of the Supreme Court.
Thereupon the 2nd respondent is bound in law to informthe lsl respondent that the names appearing in theNomination Paper of the Independent Group No. 2, havebeen now exhausted.
Upon receipt of such information, the 1st respondent isbound by law to call upon the petitioner to nominate twopersons who are members of the Independent GroupNo. 2, to fill the said vacancies.
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Therefore under these circumstances the petitionercontends that, the 2nd respondent has no option other than toinform the lsl respondent that the nomination paper of theIndependent Group No. 2. for the Electoral District of Jaffna,has been exhausted with effect from 22.07.1995. However, thepetitioner states that the 2nd respondent unlawfully and actingwithout authority has certified the names of the 3rd and the 4threspondents and forwarded his return in Form M to the Is'respondent to declare them (3rd and 4th respondents) to beelected as Members of Parliament from the IndependentGroup No. 2, for the Electoral District of Jaffna, in order to fillthe two vacancies created in Parliament due to the expulsionof the two members referred to above. Thereupon the 1strespondent has also acting unlawfully and without authorityhas proceeded to cause the publication of the Gazettenotice declaring the 3rd and 4th respondents as Members ofParliament from the Independent Group No. 2, for theElectoral District of Jaffna. The said Gazette ExtraordinaryNo. 1074/10 dated 08.04.1999 relating to the filling of thesaid two vacancies mentioned above has been producedmarked P10 and Pll. The petitioner therefore has stated inhis application that the publication of the said GazetteNotification marked P10 and PI 1 by the 1st respondent wouldcause irremediable loss and.prejudice to the petitioner in hiscapacity as the leader and member of the Independent GroupNo. 2. Hence among other relief, the petitioner sought aninterim order from the Court of Appeal staying the operationof the said Gazette Notification marked P10 and Pll, untilthe final determination of this application. Since the Court ofAppeal refused to grant the said interim relief, it would appearthat the petitioner has obtained the said interim relieffrom the Supreme Court in S. C. Spl. L. A. No. 96/99, and thesaid interim order is to be operative until the conclusion ofthe proceedings in the Court of Appeal (vide PI 7). In additionthe petitioner in this application has sought the followingrelief:-
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(i) A writ of certiorari to quash the certificate made by the2nd respondent in terms of Section 64 (2) of the ParliamentaryElections Act, No. 1 of 1981, in From M, naming the 3rd and 4lhrespondents as Members of Parliament, (ii) A writ of Certiorarito quash the 1st respondent’s Gazette notice i. e. GazetteExtraordinary bearing No.1074/10 dated 08.04.1999 markedP10 and Pll which declared the 3rd and 4th respondents ashaving been elected as members of Parliament.
(iii) A writ of mandamus (petitioner should have appliedfor a writ of Prohibition in this instance) to direct the 1st and 2ndrespondents not to consider 5th respondent’s name in fillingany future vacancy if any, from the Independent Group No. 2,for the Electoral District of Jaffna, (iv) A writ of Mandamus todirect the 1st and 2nd respondents to treat the nominationpaper of the Independent Group No. 2, for the ElectoralDistract of Jaffna, as having been exhausted by election orotherwise in terms of the Parliamentary Elections Act, No. 1 of1981, and (v) a writ of Mandamus to direct the 1st respondentto call upon the petitioner to nominate two members of theIndependent Group No. 2, in order to fill the two vacancies inparliament on behalf of the Independent Group No. 2, for theElectoral District of Jaffna.
In the objections filed by the 3rd 4th and 5th respondents,the position taken up by them is that, the contents set out inthe resignation letters, namely PI (a), P2 (a) and P3 (a) are falsein that there was no agreement between the petitioner and the3rd, 4th and 5th respondents with regard to the acceptance of thepolicies followed by the E. P. D. P. It is further alleged by the3rd, 4th and 5th respondents that at about the time of theParliamentaiy Elections of 1994, the petitioner had obtainednumber of documents (meaning papers) signed in blankfrom the said respondents for the purpose of utilizingthem in connection with the said election. In other wordsthe impression that the 3rd. 4th and 5lh respondentswere attempting to create in the mind of the Court is thatthe petitioner has prepared the said resignation letters PI (a).
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P2 (a) and P3 (a) using the papers he had obtained from the3rd, 4th and 5th respondents signed in blank. Therefore the3rd, 4th and 5lh respondents moved for the dismissal of thepetitioner’s application. However in the counter objectionsfiled by the petitioner, he has taken up the position that, it wasimpossible to make use of the signatures on the blank sheetsof paper to prepare the said letters of resignation. Furtherthe petitioner has tendered seven affidavits marked PI5 (a) toP15 (f) and P16 obtained from the other candidates whowere elected to Parliament (except those expelled), from'theIndependent Group No. 2, for the Electoral District of Jaffna,stating that the petitioner had not obtained their signatures orthat of any other candidate in blank papers at or about the timeof the General Elections of 1994. It was further contendedby the petitioner that the 3rd and 4,h respondents have notdenied or contradicted the press interviews given to the TamilNewspapers Virakasari and Thinakkural admitting theirresignations, as evidenced by the publication appearing in thesaid newspapers marked P12, PI3 and P14 with EnglishTranslations marked PI2 (a), P13 (a) and PI4 (a). In thesecircumstances the petitioner has maintained that, he isentitled to proceed with this application for the purpose ofobtaining the relief as prayed for in the application.
At the hearing of this application learned Counsel for thepetitioner submitted that in view of the expulsion of the twomembers of Parliament from the Independent Group No. 2,and which expulsion was affirmed by the Supreme Court on30.03.1999, the question arose as to whether the next twocandidates in the nomination paper of the Independent GroupNo. 2, namely, 3rd and 4th respondents are entitled to bedeclared elected as Members of Parliament. Howeverthe learned Counsel argued that, since the 3rd, 4,h and 5lhrespondents who were candidates numbers 11, 12, and 13. inthe nomination paper according to the preferential vote at thepoll, have resigned from the membership of the IndependentGroup No. 2, they have ceased to be candidates of the said
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Independent Group No. 2, and therefore they are not entitledby law to be declared as Members of Parliament from theIndependent Group No. 2. Hence Counsel submitted thatit was unlawful for the Is' and 2nd respondents to declare the3rd and 4th respondents as Members of Parliament. LearnedCounsel further submitted that the contention of the 3rd, 4thand 5th respondents that (i) they have not resigned fromtheir membership in the Independent Group No. 2 and (ii) thatin any event a candidate cannot lose his candidacy byresignation before he is declared a Member of Parliamentis without any basis and therefore unacceptable. On thisquestion of resignation, learned Counsel contended thatthe letters of resignation dated 22.07.1995 (PI (a), P2 (a) andP3 (a)) of the 3rd, 4th and 5th respondents addressed to thepetitioner who is the leader of the Independent Group No. 2and the covering letters addressed by the petitioner dated24.07.1995 to the 2nd respondent (Returning Officer) enclosingthe said letters of resignation (Vide PI, P2 and P3) with copiesto the 1st respondent (Commissioner of Elections) and the 6threspondent (Secretary General of Parliament) under registeredarticle receipt dated 25.07.1990 marked P4, are sufficientproof of the fact that the" 3rd, 4th and 5th respondents haveresigned from the Independent Group No. 2. Besides Counselcontended that the fact that the resignation letters PI (a),P2 (a) and P3 (a) have been certified as having been duly signedby the respective respondents by a Justice of Peace establishesthe genuineness of the said letters of resignation. According tothe Counsel for the petitioner the Justice of Peace (who is nowdead) who has certified the resignation letters was the sameJustice of Peace who attested the oath of the said respondentscontained in the nomination paper of the Independent GroupNo. 2. It may well be that since these letter of resignation wereprepared in English the need arose to read and understandbefore signing them. Counsel further referred to the newsitems published in the Tamil paper Virakesari and Thinakkuralof 14.04.1999 (vide P12 and P13 with English TranslationsPI2 (a), P13 (a)) where the 4th respondent has admitted the fact
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of his resignation from the Independent Group No. 2 and thenews item published in the Tamil paper Thinakkural dated16.04.1999 (vide P14 with English Translation P14 (a)), wherethe 3rd respondent has admitted the fact of his resignation fromthe said Independent Group. Therefore Counsel submittedthat the failure of the 3rd and 4lh respondents to deny orcontradict the said statements attributed to them, and for thatmatter, their failure to give any explanation as to why thesaid newspapers published such material relating to theirresignations from the Independent Group No. 2. clearlyindicates that the 3rd and 4th respondents have infact resignedfrom the Independent Group No. 2.
Learned Counsel for the 3rd, 4,h and 5th respondents on theother hand submitted that the said letters of resignation werenot genuine and the said letters have been forged or fabricated.To support this contention. Counsel referred to the contents inthe letters of resignation, which according to him were false,in that, at no stage there had been any agreement with regardto the acceptance of the policies followed by the petitioner. Onthe other hand, if the 3rd, 4th and 5th respondents had agreedwith the policies of the E. P. D. P. there was absolutely nonecessity for them to have joined with the petitioner to contestthe elections as an Independent Group. Counsel pointed outthat an examination of the three letters of resignation namelyPI (a), P2 (a) and P3 (a) would reveal that these letters areidentical except for the fact that the addresses of the writersappearing on them are different. Further the presence of thecertificate of the Justice of the Peace to the effect that “theabove letter of resignation was read over . . . and after havingunderstood the same signed in my presence on this 22nd dayof July 1995 at Colombo" makes it more suspicious for thereason that, if the 3rd, 4 th and 5th respondents prepared the saidletters, then, obviously they have prepared these letters havingunderstood the contents thereof. If that be the case, then therewas no necessity for a third party namely, a Justice of Peaceto get the writers of these letters themselves to read it. in order
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to ensure that the persons who wrote them understoodthe contents of such letters they themselves have written.Therefore learned Counsel submitted that these specialfeatures observed in these letters of resignation clearly showedand supported the fact that the letters of resignation markedPI (a), P2 (a) and P3 (a) were fabrications.
One important fact to be noted in this case is that, 3rd, 4thand 5th respondents have at no stage denied the signaturesappearing in their letters of resignation. Their argument seemsto be that, the petitioner has made use of the papers obtainedby him signed in blank from the three respondents at or aboutthe time of the General Elections of 1994, to fabricatethese letters of resignation marked PI (a), P2 (a) and P3 (a).However it is hard to believe firstly that the 3rd, 4lh and 5threspondents who were intending to represent the voters inParliament for the Electoral District of Jaffna at the GeneralElections of 1994, are so irresponsible and foolish to havegiven such papers signed in blank to the petitioner, so as togive him a free hand to use their signatures for whateverpurpose the petitioner thought it fit. Further this conduct doesnot stand to reason. Secondly, even assuming that the 3rd, 4thand 5th respondents had been so stupid to have given suchpapers signed in blank, it would still appear impossible for oneto believe that their signatures are so placed in the blanksheets so as to enable the petitioner to fabricate these lettersof resignation in the manner that is found in the resignationletters marked PI (a), P2 (a) and P3 (a). A close examination ofthese three letters of resignation would clearly show that thesignatures appearing on them have been placed after thesaid letters of resignation have been prepared. In addition it isto be noted that some of the Members of Parliament of theIndependent Group No. 2 have tendered affidavits markedPI5 (a) to P15 (f) and PI6 denying categorically that thepetitioner had obtained on blank sheets of paper thesignatures of the candidates of the Independent Group No. 2,at or about the time of the General Elections 1994. Anotherfactor that weighs heavily against the 3rd and 4th respondents
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is the fact that they have not denied or explained the interviewsgranted by them to the press namely, the Tamil NewspapersVirakesari and Thinakkural (PI2. P13 and PI4) referredto above. This fact supports the position taken up by thepetitioner that the 3rd and 4lh respondents have infactresigned. If these news items which appeared in the presswere incorrect, we are unable to understand why the 3"’ and4th respondents remained silent without contradicting thatposition. After all. these news items refer to the interviewsgranted by the 3rd and 4th respondents personally. In respectof the 5,h respondent there is also another letter dated24.07.1995 signed by the 5,h respondent addressed to the Is’respondent (marked by the Counsel for the petitioner as P18at the hearing of this application) where he (5th respondent) hasadmitted that he has handed over his resignation on 22.07.1995as a member of the Independent Group led by Mr. N. DouglasDevananda. (the petitioner in this application). Authenticity ofthis letter has not been challenged.
Another relevant observation to be made here is that, theresignations of the 3rd, 4th and 5th respondents from theIndependent Group No. 2, seems to have taken place in theyear 1995, when there was no prospect of any vacanciesarising in Parliament to be filled from the nomination list. Inother words it would appear that the three respondents haveresigned at a time when they had no expectation of finding aplace in Parliament. However four years later i. e. in the year1999, when there appeare'd some prospects for the 3rd. 4lh and5th respondents to enter Parliament, it is seen that they havetaken up the position that the three resignation letters signedand tendered by them to the petitioner are not genuineand that they are fabrications, a position which cannotbe supported from the material available before the Court.Therefore we hold that the three letters of resignation signedby the 3rd, 4,h and 5th respondents marked PI (a), P2 (a) andP3 (a) are genuine and therefore the said three respondentshave in fact resigned from the Independent Group No. 2.
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The other matter to be considered in this application isthat, since the resignations of the 3rd, 4th and 5th respondentsare valid and therefore the nomination paper of the IndependentGroup No. 2 has been exhausted, is the 2nd respondent(Returning Officer) bound to inform so, to the 1st respondent(Commissioner of Elections) and then is the 1st respondentbound by law to call upon the petitioner to nominate twopersons who are members of the Independent Group No. 2, tofill the two vacancies in Parliament. Learned Counsel for thepetitioner and the respondents have referred to the relevantprovisions in the constitution and the Parliamentary ElectionsAct, No. 1 of 1981 as amended by Parliamentary Elections(Amendment) Act, No. 15 of 1988.
Article 99 (13) (b) of the 1978 constitution provides asfollpws:-
Where the seat of a Member of Parliament becomesvacant as provided in Article 66 (other than paragraph (g) ofthat Article) or by virtue of the preceding provisions of thisparagraph, the person whose name appears first in order ofpriority in the relevant nomination paper (excluding the namesof any persons who have previously been declared elected) .shall be declared elected to fill such vacancy.
Article 101 (1) (h) of the constitution provides as follows:-
101 (1) The Parliament may by law make provision for . .
(h) the form and manner in which vacancies shall be filledwhen all the candidates whose names appearing inthe nomination paper of a recognized political party orindependent group have been exhausted by election orotherwise; and
Accordingly Parliamentaiy Elections Act, No. 1 of 1981, asamended by Act, No. 15 of 1988. following provisions havebeen made for the filling of such vacancies.
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Section 64 (1) Where the seat of a Member of Parliamentbecomes vacant as provided in Article 66 ofthe Constitution (other than paragraph (g) ofthat Article) or by virtue of the provisionsof paragraph 13 (a) of Article 99 of theConstitution, the Secretary-General ofParliament shall inform the Commissionerwho shall direct the returning officer of theelectoral district which returned suchMember to fill the vacancy as provided forunder paragraph 13 (b) of Article 99 of theConstitution within one month of suchdirection.
The returning officer shall forthwith aftercomplying with the direction of theCommissioner, make a return, substantiallyin Form M set out in the First Schedule to thisAct to the Commissioner who shall cause thename of the Member so declared elected to bepublished in the Gazette.
Where all the candidates whose namesappear in the nomination paper submitted byany recognized political party or independentgroup in respect of an electoral district havebeen exhausted by election or otherwise orwhere none of the candidates whose namesremain on such a nomination paper havesecured any preferences, and thereafter avacancy occurs to be filled by a membernominated by such party or group, thereturning officer of such electoral districtshall inform the Commissioner.
(Vide Section 17 of the ^amendment) Act,No. 15 of 1988.)
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Upon the receipt of such information theCommissioner shall require the secretary ofthe recognized political party or the groupleader of the independent group to which theMember who vacated the seat belonged, tonominate a member of such party or group tofill the vacancy. Upon the receipt of suchnomination the Commissioner shall declaresuch person to be a Member for the electoraldistrict in respect of which the vacancyoccurred, and cause the name of the Memberso declared to be published in the Gazette.
Learned Counsel for the petitioner submitted that theapplicable provisions for the filling of a vacancy when thenomination paper of a political party or Independent Grouphas become exhausted is to be found in Section 64(3) andSection 64(4) of the Parliamentary Elections Act as amended.According to the amended Section 64(3), exhaustion of anomination paper can take place not only by Election orotherwise, but also where none of the candidates whosenames remain on such a nomination paper have secured anypreferences. Therefore learned Counsel for the petitionercontended that the words “or otherwise” appearing inthe phrase nomination paper . . . exhausted by election orotherwise… as contained in Section 64(3) would include otherinstances where a candidate ceases to be a member of apolitical party or Independent Group. According to Counselsuch instances would include when the nomination paper isexhausted by death, expulsion or resignation (or any othermanner) of a candidate, and in which event he ceases to be amember of a political party or Independent Group. In otherwords Counsel was trying to give an interpretation to thewords “or otherwise” in Section 64(3) of the ParliamentaryElections Act. In order to show that the words “or otherwise”conveys different meanings, Counsel cited the case ofNational Association of Local Government Officers v. Bolton
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Corporation111 at 177, where the words “or otherwise" have beeninterpreted to mean “or in another way". Therefore Counselargued that the words “or otherwise” would clearly includeinstances where candidates whose names appear in thenomination paper of a political party or Independent Grouphas died or expelled or resigned from such a political party orIndependent Group and thereby ceased to becandidates. In order to support his contention learnedCounsel cited the case of C. A. 220/94, C. A. minutes of05.05.1994, (which was an Application for a writ of Prohibitionand Mandamus on the Commissioner of Elections), where theCourt of Appeal comprising of Justice S. N. Silva President/C. A. (as he was then) and Justice Dr. R. Ranaraja gavejudgment permitting the 1st respondent (Commissioner ofElections) to declare the 4th respondent elected to fill thevacancy created by the resignation of the 3rd respondent,(Incumbent Member of Parliament) by-passing the 2ndrespondent who has been a member of the Sri LankaMuslim Congress and would otherwise have been entitledto be declared elected to fill the vacancy created by the3rd respondent’s resignation, but for the fact that the 2ndrespondent has ceased to be a member of the Sri LankaMuslim Congress upon his expulsion which was notchallenged by him (2nd respondent). Hence Counsel submittedthat, in terms of Section 64(3) of the Parliamentary ElectionsAct, the nomination paper of the Independent Group No. 2,has been exhausted by virtue of the resignations of the 3rd,4th and 5th respondents, who have now ceased to be thecandidates of the Independent Group No. 2. In thecircumstances Counsel for the petitioner contended that interms of Section 64(4) of the Parliamentary Elections Act,the 1st respodnent (Commissioner of Elections) is required bylaw to call upon the Secretary of the Independent Group No. 2.who is the petitioner in this application to nominate twomembers from his group to fill the two vacancies created inParliament.
CA
Deuananda u. Dayananda Dissanayake (Yapa, J.)
145
However, learned Counsel for the 3rd respondent (Counselfor the 4th and 5th respondents associated themselveswith this argument) contended that the words “or otherwise”contained in Section 64(3) of the Parliamentary Elections Actas amended, will not include a resignation of a candidatewhose name appears in the nomination paper submitted byany recognised political party or Independent Group in respectof an Electoral District. Learned Counsel’s reasoningwas that, if the words “or otherwise” are interpreted to includea “resignation” of a candidate whose name appears inthe nomination paper would create a situation where theReturning Officer will be called upon to hold an inquiry in orderto decide the question whether a particular resignation of acandidate is genuine or not. As a result of this situationarising, the Returning Officer will have to embark on aninvestigation or inquiry to decide whether a candidate hasinfact resigned. Learned Counsel therefore submitted that thewords “or otherwise” should only include such instanceswhere no such investigation or inquiry becomes necessary bythe Returning Officer. Hence Counsel contended that the onlymeaning that could be given to the words “or otherwise” wouldbe the death of a candidate. Therefore it would appear that,if the argument of the learned Counsel for the 3rd respondentis accepted as correct, then, the exhaustion of a nominationpaper can arise only in three situations under Section64(3) of the Parliamentary Elections Act, namely, whenthe nomination paper is exhausted by election, death orwhere none of the candidates whose names remain on suchnomination paper have secured any preferences. Thereforeaccording to the Counsel’s argument the one and onlymeaning that could be given to the words “or otherwise” isdeath of a candidate.
We find it difficult to accept this contention of Counsel forthe reason that, if that was the intention of Parliament, thensurely Section 64(3) of the said act would have stated veryclearly the words “the nomination paper . . . exhausted by
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election or death, without using the words by “election orotherwise”. Further the words “or otherwise" cannot be givensuch a restricted meaning as suggested by learned Counselfor the 3rd respondent, as it was never the intention of theParliament for the reason the phrase “or otherwise" by itselfconnotes a liberal meaning. The Oxford English Dictionary,Second Edition Volume X gives to the word “otherwise" thefollowing meanings i. e. in another way, or in other ways; in adifferent manner, or by other means; differently. It wouldappear therefore the word “otherwise" has an extendedmeaning and in the circumstances it would be very clear assuggested by learned Counsel for the petitioner, that, when
Section 64(3) stated that the nomination paper
“exhausted by election or otherwise" the said words wouldnecessarily include death, expulsion or resignation of acandidate whose name appears in the nomination paper. Suchan interpretation is in harmony with the 1978 constitution.(Vide Article 66.)
Further in the event of there being no dispute orcontroversy with regard to the expulsion or the resignation ofa candidate whose name appears in the nomination paper,then, in our considered view the Returning Officer and theCommissioner of Elections should accordingly comply withthe provisions of Sections 64(3) and 64(4) of the ParliamentaryElections Act for the filling of vacancies. However if a situationarises where there is a dispute or controversy on the matter ofexpulsion or resignation (as in this case), then, such a disputemay well have to be resolved by Court before the ReturningOfficer or the Commissioner of Elections could take action interms of Sections 64(3) and 64(4) of the said act.
Further we cannot subscribe to the view as suggested byCounsel for the 3rd, 4th and 5th respondents that, a candidatewhose name appears in the nomination paper cannot resignuntil he has got himself elected to Parliament. Such aninterpretation is artificial and contrary to one’s freedom ofthought or conscience. In the same way we are unable
CA
Devananda v. Dayananda Dtssanayake (Yapa, J.)
147
to accept the argument of Counsel for the 3rd, 4th and 5threspondents that in this case a writ of Certiorari does notlie, since there is no determination or decision by the 1st andthe 2nd respondents who were merely complying with thestatutory provisions. On the contrary it must be statedhere that the decision or determination made by the 1st and2nd respondents in this case, as evident from the materialavailable, has been unlawful and an in excess of theirauthority.
Therefore in the present application we are of the viewthat the 3rd. 4th and 5th respondents have resigned andfurther that the words “or otherwise" in Section 64(3) of theParliamentary Elections Act as amended would include amongother things a resignation. In the circumstances we hold thatthe 1st and the 2nd respondents have acted unlawfully and inexcess of their authority, when the 2nd respondent (ReturningOfficer) decided to forward his return in Form M to the Is'respondent (Commissioner of Elections) to declare the 3rd and4th respondents to be elected as members of Parliament andthe 1st respondent proceeded to cause the publication of theGazette Extraordinary No. 1074/10 dated 08.04.1999 markedP10 and Pll.
For the aforesaid reasons we make order granting a writof Certiorari as prayed for in the petition (i) to quash thecertificate made by the 2nd respondent in terms of Section 64(2)of the Parliamentary Elections Act, in Form M naming the 3rdand 4lh respondents as members of Parliament and (ii) to quashthe lsl respondent's Gazette notice i. e. Gazette Extraordinarybearing No. 1074/10 dated 08.04.1999 marked P10 and PI 1which. declared the 3rd and 4th respondents as having beenelected as Members of Parliament. In addition we issue a writof Mandamus as prayed for in the petition (i) to direct the Is'and the 2nd respondents to treat the nomination paper ofthe Independent Group No. 2 for the Electoral District of Jaffna
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as having been exhausted by election or otherwise in terms ofthe Parliamentary Elections Act. No. 1 of 1981 as amendedand (ii) to direct the Is* respondent to take necessary andconsequential steps to call upon the petitioner to nominate twomembers of the Independent Group No. 2 in order to fill thevacancies in Parliament on behalf of the Independent GroupNo. 2 for the Electoral District of Jaffna. Since we have heldthat the 5th respondent has resigned, it is unnecessary to makeany order in respect of him. Further we deeply appreciate theassistance given to us by Counsel.
KULATILAKA, J. I agree.Application allowed.