Legal Services and Laws of Sri Lanka


SLR-1980 Vol.2-P285

SLR - 1980 Vol.2, Page No - 285

APPAPILLAI AMIRTHALINGAM

v.

M. A. PRIYASEKERA,
COMMISSIONER OF ELECTIONS AND ANOTHER

COURT OF APPEAL
WIMALARATNE, J. (P/CA) 8, TAMBIAH, J.
C.A.596/1980
AUGUST 4,1980.

Constitution, Articles 66, 161(d) - Nomination after the death of a Member ofParliament-DutyoftheCommissionerof
Elections - When do writs of certiorari and mandamus lie ?
Mylvaganam Canagaratnam was declared elected as the second Member to represent the ElectoralDistrictofPottuvilinthe
National State Assembly at an election held on 12.09.77. He was the nominee of the Tamil UnitedLiberationFront(T.U.L.F)
whose Secretary-General is the petitioner. He made a statement in the National State Assembly on 19.12.77 of his decisionto
join the Government Parliamentary Group, but the Petitioner avers that he remained a member of the TULF and that hedidnot
resign nor was he expelled from the party. He died on 20.4.80 and by virtue of Article 66oftheConstitution,thatseat
became vacant. Article 161(d) (i) of the Constitution provides that when a vacancy in the membership of the FirstParliament
occurs, the Secretary-General of Parliamentshould forthwith inform the Commissioner of Elections ofsuchvacancyandhe
should require the Secretary of the political party to which such member belonged, to nominate a memberofsuchparty,to
fill such vacancy.

The petitioner made this application for writs of certiorari and mandamus on the grounds that:
(i) the Commissioner of Elections, failed to require the Petitioner to nominate a member of the T.U.L.F. to fill thevacancy
although he was under duty to do so and

(ii)the Commissioner of Elections has informed petitioner that he hasdecided torequiretheSecretaryoftheUnited
National Party (U.N.P.) to nominate a member of the U.N.P. to fill the vacancy.

The Commissioner of Elections resisted the application for a writ of certiorarionthegroundthathehadnotmadea
decision requiring the 2nd respondent (Secretary of the U.N.P.) to nominate a member of the U.N.P. and that hewasonlyin
the process of determining the political party to which the deceased member belonged. He resisted the application for awrit
of mandamus on the ground that he has not refused or declined to act in accordance with Article 161(d) (iii).

Held :
(i) There has necessarily to be a formal decisionordeterminationbytheCommissionerrequiringtheSecretaryofa
political party to nominate a member of that party to fill a vacancy in Parliament before a writ ofcertioraricouldissue
quashing that decision or determination. As that situation has not yet arisen, the application is premature.

(ii) Mandamus is an extraordinary residuary and supplementary remedy to be granted only whenthereisnoothermeansof
obtaining justice. The Court will decline to excercise its discretion in favour of a petitioner, ifaspecificalternative
remedy "equally convenient, beneficial and effectual" is available.

Case referred to:
(1) Ex Parte Pritchard (1953) All E. R. 766 at 772

APPEAL for writs of certiorari of mandamus.

V S. A. Pullenayagam with M. Sivarajasingham, G. Kumaralingam, S. C. Chandrahasan and C. V Vivekananda for petitioner.

V C. Gunatillaka, Solicitor-General with Suri Ratnapala, State Counsel for 1st respondent.

K. N. Choksy with Daya Pelpola, Henry Jayamaha and Lakshman de Alwis for 2nd respondent.

11th August, 1980
WIMALARATNE, J. (President of the Court of Appeal)
Mylvaganam Canagaratnam was declared elected as the second member to represent the electoraldistrictofPottuvilinthe
National State Assembly at an election held on 12.9.77. He was the nominee of the Tamil UnitedLiberationFront(T.U.L.F.)
whose SecretaryGeneral is the petitioner. He made a statement in the National State Assembly on 19.12.77 of hisdecisionto
join the Government Parliamentary Group, but the petitioner avers that he remained a member of the T.U.L.F., and that hedid
not resign nor was he expelled from that party.

He diedon 20.4.80, and by virtue of Article 66 of the Constitution of the Democratic Socialist Republic of Sri Lanka,that
seat became vacant. Article 161(d) (i) of the Constitution provides that where a vacancyinthemembershipofthefirst
Parliament occurs, otherwise than on the election of a Member being declared void,suchvacancyshallbefilledinthe
manner provided by Article 161(d) (iii), which is in the following terms:-

" where a vacancy as is referred to in sub-paragraph (i) or (ii) hasoccurred,theSecretary-GeneralofParliament
shall forthwith inform the Commissioner of Elections of such vacancy. The CommissionerofElectionsshallthereupon
require the Secretary of the political party to which such Member belonged to nominate a member of such partytofill
such vacancy. Upon the receipt of such nomination the Commissioner shall declaresuch person to be the Memberforthe
electoral district in respect of which the vacancy occurred."

The petitioner avers that the Commissioner of Elections, who is the 1st respondent,failedtorequirethepetitionerto
nominate a member of the TULF. to fill the vacancy, although he was under a duty to do so. Alleging that the1strespondent
had informed the petitioner that he has decided to require the Secretary of the United National Party (U.N.P.) to nominatea
member of the U.N.P. to fill the vacancy, the petitioner filed this application on 21.5.80 seeking:-

(a)a mandate in the nature of a Writ of Certiorari, quashing the decision of the 1strespondentrequiringthe2nd
respondent to nominate a member of the U.N.P. to fill the vacancy, on the ground that he has made the decisionwithout
jurisdiction or in excess of his jurisdiction:

(b)an order restraining the 2nd respondent from nominating a member of the U.N.P.and

(c)a mandate in the nature of a Writ of Mandamus directing the 1st respondent to require the petitionertonominate
a member of the T.U.L.F.

Both respondents have filed statements of objections, supported evidence. The 1st respondent has taken up the bydocumentary
position that when thepetitioner filed this present application he hadnot made a decision requiringthe2ndrespondent
to nominate a member of the U.N.P. He was only in the process of determiningthepoliticalpartytowhichthedeceased
Member belonged when the petitioner addressed a letter dated 24.4.80 (1R2) requesting himtowithholdactionpendingthe
decision on a letter addressed by him to His Excellency the President (1 R3). As the position of theT.U.L.Fhabeenmade
known in the letter 1R3 he proceeded to make inquire from the 2nd respondent in order to determinethepoliticalpartyto
which the deceased Member belonged. He denies specifically th he informed the petitioner that he had decided torequirethe
2nd respondent to nominate a member. He resists the claim for Certiorari on the groundthathehasmadenodecisionor
determination th could be quashed by way of Certiorari, and he resists the claim to Mandamus on the ground thathehasnot
refused or declined to a in accordance with Article 161(d) (iii), and also on the ground that he has not refused ordeclined
to act in accordance with Article 161(d)(iii), and also on the ground that noMandamus could issue to direct him tomakea
decision in favour any particular party.

T.U.L.F. and became a member of the U.N.P. from the date he crossed over to the government group (i.e. from 19.12.77)upto
the time of his demise. I shall refer to this evidence later.

In a statement of counter objections the petitioner has clarified the contents of his petition and hasstatedthatitwas
when Mr. M. Sivasithamparam, the President of the T.U.L.F. met the 1st respondenton20.5.80,thatthelattertoldthe
former that he had decided that the words "the political party to which such member belonged" in Article 161(d)(iii)meant
the political party to which such member belonged at the time of his death. An affidavit signed byMr.Sivasithamparamhas
been filed along with the petitioner's counter-affidavit.

In a counter affidavit the 1st respondent, whilst repeating the denial that he had decided to require the 2ndrespondentto
nominate a member of the U.N.P. has averred that he informed Mr. Sivasithamparam that he would be making inquiries as tothe
party to which the deceased belonged at the time of his death.

On the question of fact as to whether the 1st respondent hadalreadytakenadecisionby20.5.80torequirethe2nd
respondent to nominate a member of the U.N.P. to fill the vacancy, there couldbeonlyoneanswer,andthatansweris
supplied conclusively by the documents 1 R5 to 1 R8. By 1 R5 dated20.5.80the1strespondentinquiredfromthe2nd
respondent as to whether the deceased became a member of the U.N.P. when he crossed over to the government groupandasto
whether he continued to remain as such until his death. The letter states that thisinformationwasnecessary"beforehe
decides to act." By 1R6 of 21.5.80 the 2nd respondent supplied the information asked for in 1R5. By 1R7 of21.5.80the1st
respondent asked the 2nd respondent to furnish the date when the deceased became a memberoftheU.N.P.,andby1R8of
23.5.80 the 2nd respondent supplied that information. If the 1st respondent had by 20.5.80 alreadydecidedtorequirethe
2nd respondent to nominate a member, there was no purpose served by the correspondence contained in the above documents.

When confronted with this situation learned Counsel for the petitioner contended that the decision he wasseekingtoquash
was the decision of the 1st respondent that the words "the political party to which such member belonged" meant the partyto
which the member belonged at the time of his death. The question arises as to whether such a "decision" is one whichcanbe
quashed by way of Certiorari. The learned Solicitor-General characterised it as only a"thinking"ofthe1strespondent,
whilst learned Counsel for the 2ndrespondent submitted that something much more formal than thatwasrequiredbeforea
writ could issue.

Certiorari lies normally to quash the decisions or determinations of bodies or persons having a duty toactjudicially.As
observed by Parker, J. "It cannot be too clearly understood that the remedy by way of Certiorari only liestobringupto
this Court and quash something which is a determination or a decision." Ex Parte Pritchar(1). Iaminagreementwiththe
contention of Counsel for the respondents that in thecontextofArticle161(d)(iii)oftheConstitutiontherehas
necessarily to be a formal decision or determination by the 1st respondent requiring the Secretary of apoliticalpartyto
nominate a member of that party to fill a vacancy in the membership of the First Parliament,beforeaWritofCertiorari
could issue quashing that decision or determination. As that situation has not as yet arisen the presentapplicationfora
Writ of Certiorari is premature, and has to be refused. The next question is whether a Writ of Mandamus canissuedirecting
the 1st respondent to require the petitioner to nominate a member of the T.U.L.F. to fill the vacancy. Thepetitionercould
only show that the deceased was nominated as the T.U.L.F.candidateforthePottuvilSeat.Whilstconcedingthatthe
deceased made a statement in the National State Assembly that he had decided to join the GovernmentParliamentaryGroupon
19.12.77, the petitioner contends that he did not in fact jointheU.N.P.,butremainedamemberoftheT.U.L.F.To
contradict this averment the 2nd respondent relies on a large volume of evidence. The sequenceofeventswassomewhatas
follows:-

On 19.12.77 when the deceased made the statement in the National State Assembly, the petitioner had observed,"Weare
not turn coats. We have certain principles and policies. You are a disgrace. A disgraceful specimen of humanity. Resign
your seat and contest if you can." (Hansard - 19.12.77)

On 23.12.77 the deceased wrote the letter 2R1 to the General Secretary of the U.N.P applyingformembershipofthat
party, and agreeing to accept its principles, policy and programme. On the same date he was issued the membershipcard
of the Party (X3). 2R3 shows that the subscription fee of Rs. 25/- for the month of January, 1978hadbeenrecovered
from him through the Secretary of the National State Assemblylikewise 2R3(a) is proof of payment of subscriptionfor
June 1978. The Certificate of the Secretary-General of Parliament (2R4) shows that he had paid thepartysubscription
up to the time of his death. He was appointed a District Minister, which appointment could be held only byMembersof
Parliament who belonged to the party. His involvement in organising party activitiesinthePottuvilElectorateis
reflected in the documents marked 2R7.

As against this mass of evidence we have not been furnished withreliabledocumentaryevidencetodemonstratethatthe
deceased yet remained a member of the T.U.L.F. The answer to the question "to what party did Canagaratnam belong at thetime
of his death?" can therefore be answered without any hesitation. Likewise, whenthenewConstitutionwaspromulgatedon
7.9.78 he was a Member of the First Parliament and belonged to the U.N.P.

This being the factual situation, it is difficult to see how Mandamus could issue. Mandamus has always beenregardedasan
extraordinary, residuary and 'supplementary' remedy, to be granted only when there is no other meansofobtainingjustice.
The Court will decline to exercise its discretion in favour ofapetitionerifaspecificalternativeremedy'equally
convenient, beneficial and effectual' is available. Mandamus has often been refusedonthegroundthatanotherjudicial
remedy is equally or more appropriate. Thus, the availability of quo warranto has been held to operate as a bartomandamus
- Judicial Review of Administrative Action by, S. A. de Smith (3rd Edition) pages 501, 502.

The 1st respondent's position is that he has not as yet required the Secretary of any political party to nominateamember.
Had it not been for the delay occasioned by the correspondence referred to, and the filing of thepresentapplication,the
1st respondent would by now have made a request for the nomination of a member to fill the vacancy.Ifthe1strespondent
makes the wrong decision, that decision can be questionedbywayofCertiorari.Likewise,ifthe1strespondent,on
receiving a nomination, declares the wrong person to be the second memberfortheelectoraldistrictofPottuvil,that
election can be questioned by way of Quo Warranto. That appears to me to be the petitioner's remedy.

I would accordingly refuse the present application. Under all the circumstances, there will be no costs.

TAMBIAH, J. - I agree.

Application refused.


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