Legal Services and Laws of Sri Lanka


SLR-1996 Vol.2-P301

SLR - 1996 Vol.2, Page No - 301

ALEXANDER

v.

CHANDRANANDA DE SILVA, COMMISSIONER OF ELECTIONS

AND OTHERS
SUPREME COURT.

DHEERARATNE. J.

WADUGODAPITIYA, J, AND

WIJETUNGA, J.

S.C. APPEAL NO. 1/95.

C.A. ELECTION PETITION NO. 2/94.

1ST NOVEMBER, 1995.

14TH AND 21ST DECEMBER 1995.

Election Petition - Parliamentary Elections Act - Sections 91 and 92 - Non compliances relatingtocountingofpreference
votes - whether such non compliance is a ground foravoidingtheelectionofanindividualcandidateasamember-
Interpretation of statutes.

The Appellant was a candidate of the Podujana Eksath Peramuna (PA) at the Parliamentary Elections in 1994 fortheelectoral
district No.9 Hambantota. P.A. won four seats. On the basis of the preference votes for PA. candidates the ReturningOfficer
declared elected as members the 20th, 19th, 17th, and 13th Respondents in that order. The Appellant obtained 388preferences
less than the 13th Respondent and was unsuccessful. In his Petition the Appellant alleged non-compliance with theprovisions
of the Act in the counting of preferences which is a ground set out in section 91(1) (b) of the ParliamentaryElectionsAct
No. 1 of 1981 for challenging an election in respect of any electoral district. ThePetitionersoughtinteralia,fora
declaration that the return of the 13th Respondent as elected wasundueandforadeclarationafterare-scrutinyof
preference votes for the PA., that the Appellant is duly elected as a member of Parliament.

Held:
(1) The Petitioner ought, on the ground alleged by him, haveprayedforavoidanceoftheelectioninrespectofthe
electoral district and not the election of a member.
(2) 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 legislation.
Cases referred to :
1. Munasinghe v. Corea (1953) 55 N.L.R. 265.
2. Bandaranaike v. Premadasa (1989) 1 Sri L.R. 240.
3. Conganige Emmanuel Wallman Anthony v. S. H. M. Chandrasena S.C. Appeal No. 1/94 S.C. Minutes of 14th July 1994.
4. Weerasinghe v. Chandrananda de Silva, Commissioner of Elections 1922 - 1 Sri L.R. 76.
5. Cramas Properties Ltd., v. Connaught Fur Trimmings (1965) 1 W. L. R. 892.
6. Regina v. Broadcasting Complaints Commission Ex-parte Owen (1985) 1 Q. B. 1153.
7. Johnson v. Moreton (1980) A.C. 37.
8. Federal Steam Navigation Co., Ltd., v. Department of Trade & Industry (1974) 2 All E.R. 97.
9. 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 of 1981 read with Article130(b)oftheConstitution
against an order of an election Judge.
Faisz Musthapha, P.C. with Mahanama de Silva, N.M. Saheed and Gaston Jayakody for Appellant.
K.C. Kamalasabayson, D.S.G. with Chanaka de Silva, S.C. for 1st and 2nd Respondents.
26th January, 1996.
DHEERARATNE J.
This is an appeal from an order oftheElectionJudgedismissingaPetitionfiledintermsofsection92ofthe
Parliamentary Elections Act No. 1 of 1981 on a preliminary objection taken on behalf of the1stand2ndRespondents.The
objection relates to a pure question of law, and in order to appreciate the nature ofthatobjectionandthecontentof
arguments adduced for and against, it would be convenient initially to setoutthelegislativebackgroundinwhichthe
Petition was filed.
Article 101(1) of the Constitution enabled the Parliament, by lawtomakeprovisioninteraliafortheprocedurefor
election of Members of Parliament (e)creation of offences relating to such elections (f)thegroundsforavoidingsuch
elections (g)and the manner of determination of disputed elections and such other matters as arenecessaryorincidental
to the election of Members of Parliament (i). Article 102 (2) provided that until Parliament by law makes provision forsuch
matters, the Ceylon (Parliamentary Elections) Order in Council as amended from time to time, shall subject to theprovisions
of the Constitution, mutatis mutandis, apply. By the Parliamentary Elections Act, No.1 of 1981,amongsomeothermatters,
provision was made for what was contemplated in subsections (e) (f) (g) and (i) ofArticle101(1)mentionedabove parts
dealing with those matters in the Order in Council were repealed.
By the 14th Amendment to the Constitution which came into operation on 24.5.1988, Article 99(2) was amended toenableevery
elector, in addition to his vote, to indicate his preferences for not morethanthreecandidatesnominatedbythesame
recognized political party or independent group in whose favour he was exercising his vote. This was animportantdeparture
from the original Article 99(2) which provided for a recognized political party or an independent group contestingelections
to set out in the nomination paper the names of candidatesinorderofpriority-theorderofprioritybeingthat
determined by such party or group. The novel concept ofpreferentialvote,necessitatedamendmentstobemadetothe
Parliamentary Elections Act, in several directions. Primarily, the prioritylisthadtogivewaytoalistofnames
submitted in the alphabetical order in the nomination papereach candidate had tobeassignedaserialnumbersothat
preferences of electors could be conveniently indicatedcounting of votes had to be done preference - wise too declaration
of results and filling of vacancies in accordance with the number of preference votes obtained by each candidatehadtobe
provided for. These, the legislature sought to accomplish by enacting the Amendment ActNo.15of1988whichcameinto
operation on the same day as the 14th Amendment. Thus, subsections of theprincipalenactment15(1)(Nominationpapers),
20(1) (Uncontested elections), 24(1)(b) (Notice of the poll),30(1)(b)(Noticestobeexhibitedatpollingstations),
32(1)(a) (Ballot papers), 53(7) (Counting officer's written statement), 55(h) (Counting officer's sealed packet ofdocuments
to be sent to the returning officer), and 60(1) (Declaration of the result), were repealed and suitablesubstitutionsmade.
Appropriate amendments to the principal enactment were also made in Form A of the firstschedule(Formofthenomination
paper), Form C of the same schedule (Form of the Ballot paper), Form Bofthesecondschedule(Formofdeclarationof
identity), and in the third schedule (Form of directions for the guidance of a voter in voting to be exhibited outsideevery
polling station and in every compartment of every polling station), in order to accommodate preferential voting.
However, the legislature chose to make no amendments to part VII of the principal enactment titled"ElectionPetitions".I
shall set down in full sections 91 and 92 appearing in that part which are relevant to the presentcase.Itmaybenoted
that the emphasis placed on some words in those sections are my own.
91. The election of a candidate as a Member is avoided by his conviction for any corrupt or illegal practice.
92(1). The election in respect of any electoral district shall be declared to be void on an election Petition on anyofthe
following grounds which may be proved to the satisfaction of the Election Judge, namely -
(a) that by reason of general bribery, general treating or general intimidating or other misconductorothercircumstances
whether similar to those enumerated before or not a sectionofelectorswaspreventedfromvotingfortherecognized
political party or independent group which it preferred and thereby materially affected the result of the election
(b) non-compliance with the provisions of this Act relating to elections, if it appears that the election wasnotconducted
with the principles laid down in such provisionsandthatsuchnon-compliancemateriallyaffectedtheresultofthe
election.
(2) The election of a candidate as a Member shall be declared to be void on an election Petitiononanyofthefollowing
grounds which may be proved to the satisfaction of the Election Judge namely-
(a) that a corrupt or illegal practice was committed in connection with the election by the candidate or withhisknowledge
or consent or by any agent of the candidate
(b) that the candidate personally engaged a person as a canvasser or agent or tospeakonhisbehalfknowingthatsuch
person had within seven years previous to such engagement been found guilty of a corrupt practice under the lawrelatingto
the election of the President or the law relating to ReferendaorundertheCeylon(ParliamentaryElections)Orderin
Council, 1946, or under this Act, by a court of competent jurisdiction or by the report of an Election Judge
(c) that the candidate personally engaged a person as a canvasser or agent or tospeakonhisbehalfknowingthatsuch
person had been a person on whom civic disability had been imposed by a resolution passed by Parliament in termsofArticle
81 of the Constitution, and the period of such civic disability specified in such resolution had not expired
(d) that the candidate was at the time of his election a person disqualified for election as a Member.
The Interpretation section 131 of the Act defines an 'election'(unlessthecontextotherwiserequires)asmeaningan
election for the purpose of electing a Member of Parliament.
It is seen that the ground (b) of avoidance oftheelectioninrespectofanyelectoraldistrictconsistsofthree
ingredients, which are:-
(1) non-compliance with the provisions of the Act:
(2) appearance that the election was not conducted with the principles laid down in such provisionsand
(3) such non-compliance materially affecting the results of the election. (See - Munasinghe v. Corea(1) andBandaranaikev.
Premadasa(2)]
The Petitioner unsuccessfully contested as a candidate of the Podujana Eaksath Peramuna (PA) at theparliamentaryelections
held on 16th August 1994 for the Electoral District No. 9 Hambantota. The 1st and 2nd RespondentsaretheCommissionerof
Elections and the Returning Officer of the Electoral District Hambantota respectively, while the 3rd to 81st Respondentsare
all other candidates who contested the said election in that Electoral District. Out ofthetotalnumberofsevenseats
allotted to the Electoral District the PA wonfourseats.Accordingtotheofficialresultsdeterminedintermsof
preferential votes following candidates of the PA were elected with the indicated number of preferences:-
20th Respondent 78977
19th Respondent 63698
17th Respondent 46034
13th Respondent 39376
The Petitioner had obtained according to the official results, 38988 preferences, which is 388 less than thenumbersecured
by the 13th Respondent. The Petitioner made several allegations relating to counting of preferences cast inhisfavourand
non-compliance with the provisions of the Parliamentary Elections Act in the process of counting of preferences, thedetails
of which I need not elaborate here. The reliefs the Petitioner prayed for in his Petition are briefly:-
(a) A declaration that the election for the Electoral District of Hambantota was void totheextentthatcountingand/or
recording of preference votes relating to candidates nominated by thePAwasnotincompliancewiththeParliamentary
Elections Act.
(b) A declaration that the return of the 13th Respondent as elected was undue. (emphasis added)
(c) A declaration that the petitioner was duly elected and/or ought to have been returned as a Member ofParliamentatthe
election.
(d) A declaration that such of the candidates of the PA have been duly elected at the election after a recount.
(e) To make an order permitting the Petitioner or his agents to inspect all ballot papers andotherdocumentsrelatingto
the counting of preference votes of the candidates of the PAatthesaidelectionintermsofsection63(2)ofthe
Parliamentary Elections Act.
(f) To make an order for a recount and/or scrutiny of the preference votes obtained by the candidates of the PA atthesaid
election.
The preliminary objection raised on behalf of the 1st and 2nd Respondents was that the Election Court had no powertogrant
reliefs prayed for as non-compliance with the provisions of the Parliamentary Elections Act in the conductoftheelection
alleged by the Petitioner is a ground for avoidance of the electioninrespectofanyElectoralDistrictintermsof
subsection 92 (1) and not a ground for avoidance of the election of a Candidate as a Member asspecifiedinsubsection92
(2) therefore it was contended that the declaration soughtforpartialavoidanceoftheelectionfortheElectoral
District was bad in law. In support of the objection reliance was placed on the decision of this Court in CanganigeEmmanuel
Wallman Anthony v. S. H. M. Chandrasena.(3) That is a decision on section 92 of the Provincial Councils ElectionsAct,No.2
of 1988. which is couched in almost identical language as the provision under consideration and where the identicalquestion
was dealt with in detail. The Petitioner on the other hand relied onanotherdecisionofthisCourtinWeerasinghev.
Chandrananda de Silva, Commissioner of Elections, (4) where thecontraryviewwasexpressed,somewhatbriefly,onthe
identical question now at hand relating to the Parliamentary Elections Act.

Learned DSG for the 1st and 2nd Respondents drew the attention of Court to the scheme adopted by the legislaturetoprovide
for avoiding an election in respect of any Electoral District on the one hand and in respect of a Memberontheother.He
submits that in terms of section 91 an election of a member is avoided by his conviction for any corrupt or illegalpractice
and further intervention of a Court is unnecessary to unseat him. Section 92 on the whole deals with avoidanceofelections
through the machinery of an election Petition. Subsection 92 (1) deals exclusively with theavoidanceoftheelectionin
respect of any Electoral District and the grounds of avoidance are set out in limbs (a)and(b)whichareofageneral
nature likely to affect the whole election. Subsection (2) deals exclusively with avoidance of the electionofacandidate
as a Member and the grounds of avoidance specified in limbs (a) to (d) in that subsection are of a personalnaturerelevant
to a Member. It was further submitted by him that if non-compliance with the provisions of the Act as complainedofbythe
Petitioner is proved, that could not have materially affected the election of the 13th Respondent only,buttheresultof
the entire election as no reliance could be placed on the official counting of all preference votes at theelectioninthe
Electoral District.
Learned President's Counsel for the Appellant, probably in view of the provisions of Article 101oftheConstitution,did
not urge that this Court has any jurisdiction under 'common law' to supply any supposed omission in the Election Law, buthe
strenuously invited us to adopt a purposive and strained interpretation to section 92. We were rightly notinvitedtoread
limb (b) of subsection 92(1) as also appearing as a limb of subsection 92 (2)that would be tantamounttolegislatingand
not interpreting. Learned Counsel however submitted that we should read the words the Election in respectofanyelectoral
district as also meaning any part of the election in respect of any electoral district, so as to accommodate avoidance ofan
election of a Member on the ground of non-compliance with the provisions of the Act he contended that the "whole"includes
a "part" and we are therefore amply justified in giving the construction he advanced by adopting a purposiveinterpretation.
It was contended that one of the purposes of the Act was to ensurepurityofelections,whichisthefoundationofa
democratic system of government.
Learned Counsel for the Appellant cited several decisions where purposive interpretation was resortedtoordiscussedand
some of the important cases cited by him were - Cramas Properties Ltd v. Connaught Fur Trimmings,(5) Reginav.Broadcasting
Complaints Commission, Exparte Owen (6) Johnson v. Moreton (7) Federal Steam Navigation CoLtdv.DepartmentofTrade&
Industry(8) and In Re Lockwood (deceased) Atherton v. Brook.(9) One can hardly dispute the principles so wellenunciatedin
those decisions.
But, the primary question we have to decide is whether or notconditionsnecessaryfortheapplicationofapurposive
interpretation for the words the election in respect of any electoral district have arisen in this case. There mustexista
compelling reason for us to give a strained interpretation. Looking at the scheme of the Act, I amnotconvincedthatany
absurdity, or repugnancy, or inconsistency or frustration of thepurposesoftheActorthelikehasariseninthe
application of the ordinary sense of those words and I am unable to say that they attract any secondarymeaningcapableof
advancing the Appellant's case. If I understood the submission of Learned President's Counselcorrectly,hispositionwas
that the legislature by some inadvertence overlooked to provide for avoidance of an election of a candidate asaMemberon
the ground of non-compliance of the provisions of the Act. Perhaps,itwassosupposedinWeerasinghe'scase(supra).
Assuming there was such inadvertence, I think it is relevant in thatconnectiontoremindourselvesthewordsofLord
Diplock in Jones v. Wrotham Park Settled Estates(10) where he said
........... I am not reluctant to adopt a purposive construction where to apply the literal meaningofthelegislative
language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task onwhicha
court of justice is engaged remains one of construction, even where this involves reading into the Act wordswhicharenot
expressly included in it. Kammins Ballrooms Co Ltd v. Zenith Investments (Torquay) Ltd.* provide an instance of thisbutin
that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it waspossible
to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief wasthatitwas
the purpose of the Act to remedy secondly,itwasapparentthatthedraftsmanandParliamenthadbyinadvertence
overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Actwastobe
achievedand thirdly, it was possible to state with certainty what were the additional words that would havebeeninserted
by the draftsman and approved by Parliament had their attention been drawn to the omission before the Billwaspassedinto
law . Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannotbe
justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliamenthaspassed.
Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function whichunder
the constitution of this country is vested in the legislature to the exclusion of the courts.
Considering the purpose which the enactment sought to achieve, coulditeverbesaidthat"itwasapparentthatthe
draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, aneventualitythatrequiredtobe
dealt with if the purpose of the Act was to be achieved"? I should think not. This apart, the fact that this very purposeto
be achieved after the new system of voting was decided upon, was to bring the existing provisionsintolinewiththenew
concept of preferential voting, and to this and several amendments were made totheprincipalenactment.Theindication,
therefore, clearly is that the attentionofthelegislaturewasspecificallydirectedtothis,veryend.Inthese
circumstances I find it impossible to accept the suggestion of the Appellant that there was inadvertence on the partofthe
draftsman or Parliament. Thus the only interpretation possible is that what was enacteddidinfactgiveeffecttothe
intention of the legislature. Then again, if, as invited to do so by learned President's Counsel, we weretointerpretthe
words "election in respect of any electoral district" to mean and include "any part of it", and therefore tomean"election
of a member" by aprocessofjudicialactivismorpurposiveinterpretation,wewillthenrunintocertainother
difficulties. First, we would have to totally disregard the sharp distinction so neatlydrawnbythelegislaturebetween
subsections 92(1) and 92(2). Secondly, we have to permit parties to seek partial avoidance of an election inrespectofan
electoral district even on the several grounds mentioned in subsection 92(1)(a) as well, a situationthelegislatureseems
to have never contemplated. In my view, therefore what learned President's Counsel for the Appellant is asking this Courtto
do is to cross the boundary between construction and legislation and usurp the function ofParliament.Suchathingthis
Court cannot do.
If the allegations made by the Petitioner regarding counting of preference votes are correct, Iaminagreementwiththe
observations of my brother Kulatunga, J. in Anthony'scase(supra)thattheseveralactsofnon-compliancewiththe
provisions of the Act, having regard to their magnitude or implications must logically affect the result of theelectionof
the entire district, and therefore, in terms of the Act, the Petitioner ought to have prayed for avoidanceoftheelection
of the electoral district.
For the above reasons, the order of the Election Judge is affirmed and the appeal is dismissed with costs payable to the1st
and 2nd Respondents fixed at Rs.10,000/-.

WADUGODAPITIYA, J. - I agree.

WIJETUNGA, J. - I agree.

Appeal dismissed.


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