PELENDAGAMA v. COMMISSIONER OF ELECTION AND OTHERS

021-SLLR-SLLR-2001-V-2-PELENDAGAMA-v.-COMMISSIONER-OF-ELECTION-AND-OTHERS.pdf


PELENDAGAMA
v.COMMISSIONER OF ELECTIONS AND OTHERS
COURT OF APPEALWIGNESWARAN, J.
ELECTION PETITION 9/99FEBRUARY 2, 2000.
MAY 5th, 2000.
JUNE 22nd, 2000.
AUGUST 30™, 2000.
Election Petition – Provincial Council’s Election Act 2 of 1988 – S. 51(7)(ll)(ii), S. 53(h), S. 58(1 )(a) S. 92(1 )(b), S. 95, S. 96, S. 97(l)(a), S. 115,S. 129- Allegation that Counting Officers exercised discretion arbitrarilyand maliciously – Free and fair election – Recounting of preferentialvotes -is it available ? – necessity to seek a declaration that the electionfor the entire District to be declared null and void – What is an Election?
The Petitioner was a Peoples Alliance (P/A) candidate at the ProvincialCouncil Election for the Administrative District of Ratnapura in theSabaragamuwa Province in the 1999 election. The Petitioner contendedthat the Counting Officers failed to exercise their discretion properly butexercised it arbitrarily and maliciously by not holding a proper count ofthe preferential votes cast to the Petitioner. It was alleged that there was nofree and fair election in respect of the Petitioners candidature for electionand non compliance of the provisions of S 51(7) (ii), S.53h, 58(l)aof Act2 of 1988. The Petitioner prayed for an order to (1) Recount the preferentialvotes cast to the candidates of PA list (2) re-scrutinise the said preferentialvotes (3) declare the the Petitioner duly elected.
The lst-4th Respondents raised preliminary objections viz: (1) that thePetition does not prima facie set out an entitlement to the relief (ii) theonly relief available in law is for a declaration that the election for theentire District be declared void (2) recount of preferential votes is notamong the reliefs available in law under S. 96. (3) Rule 14 of the ProvincialCouncil Rules 1989, has not been complied with (4) failure to join all thecandidates of all parties/groups is fatal.
Held :
Unless the non compliance with the principles laid down in the Acthad the additional qualification of materially affecting the result (S.
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92( 1) (b) founds such as non compliance or failure to perform dutiesenumerated in the Act would not give cause to file an Election Petition.
Result of the Election cannot mean which person was preferred amongthe candidates from the same party but which party was preferredamong several parties contesting the election.
The relief claimed is to order a re-count and recounting of thepreferential votes of the candidate of a particular party and adeclaration in respect of the Petitioner that he ought to have beenreturned in preference to those already elected from his party -granting of such a relief does not seem to be contemplated under S.96.
c
The reliefs referred to in S.96 have to be understood in relation tothe provisions of S.92. The latter section amplifies and explains thenature of reliefs limitedly enshrined in S.96.
Election Petition in respect of the Administrative District of Ratnapura.
EC. Perera with Upali Ponnamperuma for Petitioner.
Ms. M. Fernando, S.S.C. with M.R. Ameen, S.C. for 1-4* Respondents
Other Respondents barring the 76th Respondent absent and unrepresented.
Cur. adv. vult.
December 13, 2000.
WIGNESWARAN, J.The Petitioner was a People’s Alliance candidate at theProvincial Council Election for the Administrative District ofRatnapura in the Sabaragamuwa Province in the 1999 Electionheld on 6.4.1999.
Those who were elected from the People’s Alliance list atthe said Election were the 57th to 67th Respondents and thosenot elected were the Petitioner and the 68th to 81st Respondents.The 5th.to the 56th Respondents were the Counting Officers atthe 52 Centres. The 4th Respondent was the Government Agent,Ratnapura who was the Returning Officer for the Election.
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This action was filed on the basis that the 5th to 56th CountingOfficers failed to exercise their discretion properly but exercisedit arbitrarily and maliciously by not holding a proper count ofthe preferential votes cast to the Petitioner. It was alleged thatthere had been no free nor fair election in respect of the“Petitioner’s candidature for election”, and non-compliance interaliq with the provisions of Sections 51 (7), 51 (11), 53 (h) and58 (1) (a) of the Provincial Councils Election Act No. 2 of 1988as amended.
The Petitioner prayed for an order of this Court to
c
re-count the preferential votes cast to the candidates of thePeople’s Alliance List,
re-scrutinise the said preferential votes and to
declare that the Petitioner was duly elected and thereforeought to have been returned as an elected candidate inpreference to any one of the 57th to 67th Respondents andfor
costs.
The Ageni/Attorney-at-Law for the 1st to 4th Respondentsfiled preliminary objections and moved this Court to dismissthe application in limine. This order deals with the preliminaryobjections which are as follows:-
that the Petition does not prima facie set out an entitlementto the relief (c) prayed for in the Petition viz., that thePetitioner be declared duly elected in preference to any oneof the 57th to 67th Respondents, for the reason that, wherenon-compliance with the procedure stipulated in theProvincial Councils Elections Act No. 2 of 1988 is alleged,the only relief available in law is for a declaration that theelection for the entire Administrative District be declaredvoid;
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that in any event, the Petitioner is not entitled to the reliefs
and (b) prayed for in the Petition, viz., for a recount ofthe preferential votes, for the reason that, the aforesaid reliefsare not among the reliefs available in law to be prayed foras stipulated in Section 96 of the Provincial CouncilsElections Act No. 2 of 1988;
that the mandatory 10 day time limit with regard to" theservice of notice of presentation of the Petition stipulated inRule 14 of the Provincial Council Election Petition Rules of1989 has not been complied with; and
c
that the Petitioner has failed to join all the candidates of allthe political parties and independent groups that contestedthe election as parties to the Petition as mandated by Section97(1) (a) of the Provincial Councils Elections Act No. 2 of1988.
The abovesaid objections would now be examined.
Part VII of the Provincial Councils Elections Act No. 2 of1988 deals with Election Petitions.
The reliefs that may be granted when an Election Petitionis addressed to Court are set out in Section 96 which reads asfollows:-
“All or any of the following reliefs to which thepetitioner may be entitled may be claimed in anelection petition, namely:-
a declaration that the election in respect of anyadministrative district is void;
a declaration that the return gf any person electedwas undue;
a declaration that any candidate was duly electedand ought to have been returned. ”
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While Section 95 sets out the persons who may present anElection Petition, Section 96 limits the reliefs that may be claimedby way of an Election Petition to a declaration
that an Election was void,
that the return of any person elected was undue and
that any candidate was duly elected and therefore oughtto have been returned.
The relief claimed in the present application is to order are-count and re-scrutiny of the preferential votes of thecandidates of a particular party and a declaration in respect ofthe Petitioner that he ought to have been returned as an electedcandidate of that particular party in preference to those alreadyelected (i.e. 57th to 67th Respondents) from the same politicalparty.
The granting of such a relief does not seem to becontemplated in the abovesaid Section 96.
The learned Counsel for the Petitioner argued that in orderto obtain “a declaration that any candidate was duly electedand ought to have been returned” as per Section 96(c) of theAct, it was necessary to point out to Court that votes at a counthad been improperly accepted or rejected. He argued that a re-count and a re-scrutiny of the preferential votes becamenecessary with such an end in view. But the end in view isreflected in prayer (c) of the Petition which prayed for adeclaration that the Petitioner was duly elected and ought tohave been returned as an elected candidate in preference toany one of the 57th to 67th Respondents. In other words it is notthe election and return of the Petitioner in preference tocandidates from the opposing party that had been prayed forbut an election and return of the Petitioner in preference to thoseelected from the same party.
“Election” means according to Section 129 of Act No. 2 of1988, an election held in an Administrative District of a Province
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for the purpose of electing members to the Province. The purposeof an Election therefore is to elect members to the ProvincialCouncil. No such Election held under Act No. 2 of 1988 shall beinvalid by reason of any failure to comply with the provisions ofthe said Act if it appeared that the Election was conducted inaccordance with the principles laid down in such provisionsand that such failure did not affect the result of the Election.(Vide Section 115 of the Act). Result of the Election cannot meanwhich person was preferred among the candidates from thesame party but which party was preferred among the severalparties contesting the Election. This is borne out by theprovisions of the sections in Part VII of the Act whicji giveimportance to the avoidance of an election on the ground ofbribery, treating or intimidation or other misconduct due towhich reason or reasons Electors were prevented from votingfor a recognised political party or independent group andthereby materially affected the result of the Election. (Section92(1) (a)) or non-compliance with the provisions of the Actrelating to Elections where such non-compliance affected theresult of the Election (Vide Section 92(1) (b)). In other wordsPart VII of Act No. 2 of 1988 deals with actions whose paramountconsideration was the material affecting of the result of the entireElection. The matters enumerated in the Petition filed in thiscase and the reliefs prayed for do not have such a goal or targetin view.
Even if the Petitioner were to have had genuine grievanceswith regard to the matters mentioned in the Petition filed in thiscase, the scope and nature of actions contemplated in Part VIIof Act No. 2 of 1988 do not seem to encompass such cases.
The 76th Respondent argued that provisions of Sections51(11), 51(7), 53(h) and 58(1) (a) of the Act cast certain dutieson Counting Officers and the failure on the part of such Officersto carry out those duties gave rise to a right to file an ElectionPetition to compel conformity.
There is no doubt that the Sections mentioned do cast uponCounting Officers certain duties such as recounting, forwarding
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of written statement in terms of Section 51(7) and determinationof votes in respect of parties and candidates. But the questionis whether the failure on the part of Counting Officers to performtheir duties could give rise to an Election Petition in terms ofPart VII of Act No. 2 of 1988. It is my view that unless the non-compliance with the principles laid down in the Act had theadditional qualification of materially affecting the result of theElection (Vide Section 92 (1) (b)), grounds such as non-compliance or failure to perform duties enumerated in the Actwould not give cause to file an Election Petition. Thus thePetitioner must be deemed to have been not entitled to the reliefs(a) apd (b) prayed for in the Petition.
What Section 96 seems to mean when setting out the natureof reliefs that may be claimed is that
either an Election must be found to be void in terms of thelaw or
the choosing of a candidate at such Election unfair andtherefore undue or
(ill) that a person was wrongly not chosen at such Election andtherefore must be elected and returned in terms of the lawthough not so done at the end of the Election. Preferencevotes, inter-se, as between candidates from the same partydo not therefore seem to come within its purview since theElection itself was not in question. The Petitioner in thisaction has not challenged the Election held on 6.04.1999to the entire Administrative District.
The reliefs referred to in Section 96 have to be understoodin relation to the provisions of Section 92. The latter Sectionamplifies and explains the nature of reliefs limitedly enshrinedin Section 96.
Section 92(1) (a) and (b) refer to the relief mentioned inSection 96 (a). But in both cases it is important to prove that .either general bribery, general treating or general intimidation .or other mis-conduct (Section 92 (1) (a)) ot non-compliance
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with the provisions and principles laid down in Act No. 2 of1988 (Section 92(1) (b)). also had the added consequence ofmaterially affecting the result of the Election. Thus whether “X”or “Y” was returned from a particular political party would notmaterially affect the result of the Election. It is only a differencein the political party which wins the Election that couldmaterially affect the result of the Election.
Section 92(2) deals with the conduct of a person returned,who, due to his conduct (or misconduct) was unduly elected(Section 96(b)) or should have been duly elected in preferenceto others but not so elected (Section 96 (c)). It is to befnotedthat Section 92( 1) deals with general misconduct while Section92 (2) deals with misconduct by a specific candidate.Misconduct or conduct unbecoming of an Officer, by a personwho acted as a Counting Officer, is not contemplated in Section92(2). It is referred to in Section 92 (1) (b) but such conduct onthe part of the Counting Officer must have the addedqualification that his non-compliance with the principles laiddown in the Act materially affected the result of the Election inrespect of the entire Administrative District.
In this instance the Petitioner has neither prayed for adeclaration that the Election to the entire Administrative Districtwas void nor that a candidate elected had committed any of themis-conduct enumerated in Section 92 (2) (a) to (d).
Instead, the complaint is against the Counting Officers andthat too not with a view to have the Election to the entireAdministrative District declared void. Clearly Sections 92 and96 do not give the Petitioner a right to obtain the reliefs he hasclaimed in his petition.
In view of this finding I deem it unnecessary to examine theobjections referred to in (c) and (d) of the preliminary objectionsraised.
I uphold the preliminary objections (a) and (b) raised bythe Senior State Counsel on behalf of the 1st to 4th Respondents
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and dismiss the Petition. The Petitioner shall pay the taxed costsof this application to the 1st to 4th Respondents.
Preliminary objections upheld.
Election petition dismissed.