Legal Services and Laws of Sri Lanka
SLR - 2000 Vol.3, Page No - 127
DAYANANDA DISSANAYAKE (COMMISSIONER OF ELECTIONS AND OTHERS)
COURT OF APPEAL
19TH JULY, 1999
24TH SEPTEMBER, 1999
19TH OCTOBER, 1999
12TH NOVEMBER, 1999
06TH, 07TH DECEMBER, 1999
01ST. 14TH, 30TH MARCH, 2000
27TH ARIAL, 2000
Parliamentary Elections Act 1 of 1981 - S. 64 (2) (4) Filling of vacancies if nomination paper is exhausted -Nominationof
members outside the nomination list - Is it permissible? Constitution -Article 13(b), Article 101(1) (h) - otherwise.
The Petitioner is a Member of Parliament and the SecretaryGeneralofarecognisedpoliticalpartyE.P.D.P.The
Petitioner contested the electoral district of Jaffna at the General Elections of 1994astheLeaderoftheIndependent
Group 2, which had 13 members in the 'Nomination Paperof the 13 candidates Nos 1 - 9 were declared elected. Soon afterthe
election No. 9 in the list resigned and No. 10 was thereafter declared elected. The Petitioner contends that Nos. 11, 12,13
(3rd, 4th and 5th Respondents) resigned. Nos. 4 and 10 were expelled from the Party.
The Petitioner thereafter made representations to the 1st Respondent seeking permission to nominate two members fromoutside
the Nomination list, as the nomination paper has already been exhausted. The 1st Respondent however certifiedthenamesof
the 3rd (No. 11) and the 4th Respondent-defendant (No. 12)and gazetted the names of the 3rd and 4thRespondentsdeclaring
them as members of Parliament.
The Petitioner challenged this decision on the ground that, it is unlawful without authority more, so, asthe3rdand4th
Respondents had resigned from the group. The 3rd and 4th Respondents contention is that, the letter ofresigntionwerenot
genuine and that they have been forged or fabricated. -
(i) The Respondents have at no stage denied the signatures appearing in the letter of resignation. Theirargumentseemsto
be that, the Petitioner has made use of the papers obtained by him signed in blank atoraboutthetimeoftheGeneral
Election of 1994 to fabricate these letters of resignation.
Per Yapa J.,
"It is hard to believe firstly that the Respondents whowereintendingtorepresentthevotersinParliamentareso
irresponsible and foolish to have given such papers signed in blank, so as to give him a free hand tousetheirsignatures
for whatever purpose the Petitioner thought it fit, secondly even assuming that the Respondents were so stupid to havegiven
such papers signed in blank, it would still appear impossible for one to believe that the signatures aresoplacedinthe
manner that is found in the resignation letters."
(ii) According to S.64(3), exhaustation of a Nomination Paper can take place not onlybyElectionorotherwisebutalso
where none of the candidates whose names remain on such a nomination paper have secured any preferences.
(iii) The word "otherwise" in S.64(3) has an extended meaning, exhausted by election or otherwise would necessarilyinclude,
death, expulsion, or resignation of a candidate whose name appears in the nomination paper.Suchaninterpretationisin
harmony with the 1978 Constitution.
Further held -
(i) In the event of there being no dispute or controversy with regard to the expulsion or theresignation,theauthorities
should comply with the provisions of S.64(3) and S.64(4) of the Parliamentary Elections Act. for thefillingofvacancies.
If a situation arises where there is a dispute or controversy on the matter of expulsion or resignation then suchadispute
may well have to be resolved by Court before the Authorities could take action in terms of S.64(3), S.64(1).
APPLICATION for Writs in the nature of Certiorari and Mandamus.
Case referred to :
1. National Association of Local Government Officers vs. Bolton Corporation - 1943 Ac 166 at 177.
L. C. Seneviratne P. C., with U. Abdul Najim for Petitioner.
K. Sripavan D. S. G., for 1st and 2nd Respondents.
Srinath Perera, P. C., with Nevil Ananda for 3rd Respondent.
Faiz Musthapha P. C., with N. M. Suhaid and A. M. Pandiraratne for 4th Respondent.
K. S. Ratnavel with Gamini Senanayake for 5th Respondent.
Cur. adv. vult.
August 04, 2000.
HECTOR YAPA, J.
The petitioner is a Member of Parliament representing Electoral District of Jaffna. He is also the Secretary-Generalofthe
Eelam People's Domocratic Party (hereinafter referred to as theE.P.D.P.)whichisarecognizedpoliticalparty.
Petitioner contested the Electoral District of Jaffna at the General Elections of 1994astheleaderoftheIndependent
Group No. 2. At the relevant time the 1st respondentwastheCommissionerofElections.The2nd"respondentwasthe
Returning Officer for the Electoral District of Jaffna in his ex officiocapacity.Thenamesofthe3rd,4thand5th
respondents appeared as candidates Nos. 11, 12 and 13 in the nomination paper, according to their preferentialvoteatthe
poll (General Elections 1994) for the Electoral DistrictofJaffna.The6threspondentwastheSecretaryGeneralof
Petitioner has stated in his application dated 12.04.1999, that prior to the 1994 General Elections the E. P. D. P.andthe
United National Party (hereinafter referred to as the U. N. P.) came to an understanding to submittheirnominationsunder
the leadership of the petitioner as an Independent Group for the Electoral District of Jaffna to contest the Parliamentary
Elections of 1994. Consequent to the said understanding they formed an Independent Group underthepetitioner'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 submitted their nomination paper fortheParliamentaryElectionsof1994,tothe
Returning Officer for the Electoral District of Jaffna and this group was recognised forallpurposesastheIndependent
Group No. 2,.in terms of the provisions of the Parliamentary Elections Act, No. 1 of 1981, contesting the ElectoralDistrict
of Jaffna. After the poll these 13 candidates from the Independent Group No. 2, were placed in the following orderaccording
to their preferential vote.
1. Nythiyanantha Douglas Devananda.
2. Alagaiah Rasamanickam.
3. Umapathisivam Baskaran.
4. Rajendram Ramamoorthy.
5. Nadarajah Atputharajah.
6. Murugesu Chandrakumar.
7. Sangarapillai Sivathasan.
8. Sinniah Thangavel.
9. M. A. Gafoor Zafarullah.
10. Rajendram Rameshvaran.
11. Suppiah Jeganathan.
12. Mohamed Sultan Raheem.
13. 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 after the election held in 1994, Mr. M. A. Gafoor Zafarullahtenderedhis
resignation and in terms of Parliamentary Elections Act, No. 1 of 1981, Mr.RajendramRameshvarancandidateNo.10,was
declared elected by the Commissioner of Elections
to represent the Independent Group No. 2, for the Electoral District of Jaffna.
The petitioner alleges in his application that the 3rd, 4th and 5th respondents whowerecandidatesNos.11,12and13
according 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 letters dated 22.07.1995 andtherebytheyceasedtheirrelationship
with the Independent Group No. 2. In their lettersofresignationaddressedtothepetitionerthe3rd,4thand5th
respondents have inter alia stated as follows:
"I wish to inform you that I am no longer in agreement with the policies followed by you and I am not able to continueasa
member of the Independent Group led by you. I therefore wish toinformyouthatthislettershouldbetreatedasmy
immediate resignation from the Independent Group No. 2, for the Electoral District of Jaffna for all purposes."
The three resignation letters of the 3rd, 4th and 5th respondent are produced marked P1(a), P2(a) and P3(a).Thereafterthe
petitioner has forwarded the said resignation letters of the 3rd, 4th and 5th respondents to the ReturningOfficerforthe
Electoral District of Jaffna, (2nd respondent) for his information and necessary action along with the petitioner'scovering
letters dated 24.07.1995 produced marked P 1, P2 and P3. In addition the petitioner has sent the copies of thesaidletters
of resignation of the 3rd, 4th and 5th respondents under registered cover to the Commissioner of Elections(1strespondent)
and the Secretary General of Parliament (6th respondent) for their information and necessary action.
The petitioner has further stated in his application that in August 1994, a Member of Parliamentofhisgroupinwriting
indicated his willingness to resign from Parliament and therefore by his letter dated04.09.1995producedmarkedP5,the
petitioner sought the advice of the 1st respondent with
regard to the filling of the vacancy, in the event of the said Member of Parliament resigning, since by thenthenomination
paper of the Independent Group No. 2, for the Electoral District of Jaffna has already been exhausted by theresignationof
the three remaining members of the group referred to above, namely, . 3rd,4thand5threspondents.The1strespondent
(Commissioner of Elections) replied the said letter (P5) by his undated letter of September 1995, produced markedP6,which
stated inter alia as follows. "There is no provision in the Parliamentary Elections Act No. 1 of 1981 to cause avacancyto
be filled by a member nominated outside the nomination paper until all the candidates whose names appearinthenomination
paper submitted by any recognised political party or IndependentGroupinrespectofanelectoraldistricthavebeen
exhausted by election or otherwise." Thereafter the petitioner by his letter dated20.10.1995producedmarkedP7,sought
clarification regard to the contents of the said letter P6, for which no reply was received. Thepetitionerhoweverstated
that subsequently he received a letter dated 15.12.1995 produced marked P8 fromtheReturningOfficerfortheElectoral
District of Jaffna Mr. C. Pathmanathan who was the predecessor in office of the 2nd respondent, which statedthatthereis
no provision under the Parliamentary Elections Act, No. 1 of 1981, for a candidate to resign from his candidature.Itwould
appear that this reply is in response to a letter sent by the petitioner dated 24.07.1995, which hasnotbeenproducedin
the case. The petitioner did not take any further steps on the said letter P8, since Mr. R. Ramamoorthy didnotresignand
therefore the need to fill his vacancy as a Member of Parliament did not arise.
According to the application of the petitioner it would appear that, consequent to the two decisions of the Supreme Courtin
S. C. Special Applications Nos. 02/99 and 03/99 delivered on 30.03,1999, affirming the validity of the expulsion ofthetwo
Members of Parliament, namely, Mr. Rajendram Rameshvaran and Mr. Rajendram
Ramamoorthy from the Independent Group No. 2, two seats of the Independent Group No. 2, for the Electoral District ofJaffna
in Parliament became vacant with effect from 30.03.1999. Hence the petitioner made representation to the1strespondenton
01.04.1999, stating that the nomination paper of the Independent Group No. 2,fortheElectoralDistrictofJaffnahas
already been exhausted with effect from 22.07.1995, due totheresignationsofthe3rd,4thand5threspondentsand
requested the 1st respondent to permit the petitioner to nominate two members from the Independent Group No.2,(whichhas
to be out side the nomination list) to be declared elected to represent the said group for the Electoral DistrictofJaffna
in Parliament, in terms of the provisions of the Parliamentary Elections Act, No. 1 of 1981. This letter isproducedmarked
P9. In this matter the position taken up by the petitioner is that, having regard to the constitutional andotherstatutory
provisions as referred to in his application, the 1st respondent who is the Commissioner of Electionsislegallyboundto
act in the following manner.
(a) That the 1st respondent (Commissioner of Elections) is bound by law to call upon the 2nd respondent(ReturningOfficer)
to furnish his return in Form M, two names from the Nomination Paper of theIndependentGroupNo.2,fortheElectoral
District of Jaffna, in order to fill the vacancies created in Parliament, in view of the abovementioneddecisionsofthe
(b) Thereupon the 2nd respondent is bound in law to inform the 1st respondent that thenamesappearingintheNomination
Paper of the Independent Group No. 2, have been now exhausted.
(c) Upon receipt of such information, the 1st respondent is bound by law to call upon the petitioner to nominate twopersons
who are members of the Independent Group No. 2, to fill the said vacancies.
Therefore under these circumstances the petitioner contends that, the 2nd respondent has no option other than toinformthe
1st respondent that the nomination paper of the Independent Group No. 2, for theElectoralDistrictofJaffna.hasbeen
exhausted with effect from 22.07.1995. However, the petitioner states that the 2nd respondent unlawfully andactingwithout
authority has certified the names of the 3rd and the 4threspondentsandforwardedhisreturninFormMtothe1st
respondent to declare them (3rd and 4th respondents) to be elected as Members of Parliament from theIndependentGroupNo.
2, for the Electoral District of Jaffna, in order to fill the two vacancies created in Parliament duetotheexpulsionof
the two members referred to above. Thereupon the 1strespondenthasalsoactingunlawfullyandwithoutauthorityhas
proceeded to cause the publication of the Gazette notice declaring the 3rd and 4th respondents as Members of Parliamentfrom
the Independent Group No. 2, for the Electoral District ofJaffna.ThesaidGazetteExtraordinaryNo.1074/10dated
08.04.1999 relating to the filling of the said two vacancies mentioned above has been produced marked P10andP11.The
petitioner therefore has stated in his application that the publication of the said Gazette Notification marked P10andP
11 by the 1st respondent would cause irremediable loss and. prejudice to the petitioner in his capacityastheleaderand
member of the Independent Group No. 2. Hence among other relief, the petitioner sought an interim orderfromtheCourtof
Appeal staying the operation of the said Gazette Notification marked P 10 and P 11, until thefinaldeterminationofthis
application. Since the Court of Appeal refused to grant the said interim relief, it wouldappearthatthepetitionerhas
obtained the said interim relief from the Supreme Court in S. C. Spl. L. A. No. 96/99, and the said interim orderistobe
operative until the conclusion of the proceedings in the Court of Appeal (vide P17).Inadditionthepetitionerinthis
application has sought the following relief:-
(i) A writ of certiorari to quash the certificate made by the 2nd respondent in terms of Section 64 (2) of theParliamentary
Elections Act, No. 1 of 1981, in From M, naming the 3rd and 4threspondentsasMembersofParliament.(ii)Awritof
Certiorari to quash the 1st respondent's Gazette notice i. e. Gazette Extraordinary bearing No.1074/10dated08.04.1999
marked P 10 and P 11 which declared the 3rd and 4th respondents as having been elected as members of Parliament.
(iii) A writ of mandamus (petitioner should have applied for a writ of Prohibition in this instance) to directthe1stand
2nd respondents not to consider 5th respondent's name in filling any future vacancy if any, from theIndependentGroupNo.
2, for the Electoral District of Jaffna. (iv) A writ of Mandamustodirectthe1stand2ndrespondentstotreatthe
nomination paper of the Independent Group No. 2, for the Electoral Distract of Jaffna, as having been exhaustedbyelection
or otherwise in terms of the Parliamentary Elections Act, No. 1 of 1981, and (v)awritofMandamustodirectthe1st
respondent to call upon the petitioner to nominate two members of the Independent Group No. 2,inordertofillthetwo
vacancies in parliament on behalf of the Independent Group No. 2, for the Electoral District of Jaffna.
In the objections filed by the 3rd 4th and 5th respondents, the position taken up by them is that, the contentssetoutin
the resignation letters, namely P 1 (a), P2 (a) and P3 (a) are false in that there was no agreementbetweenthepetitioner
and the 3rd, 4th and 5th respondents with regard to the acceptance of the policies followed by the E. P. D. P. It isfurther
alleged by the 3rd, 4th and 5th respondents that at about the time of the Parliamentary Electionsof1994,thepetitioner
had obtained number of documents (meaning papers) signed in blank from the said respondentsforthepurposeofutilizing
them in connection with the said election. In other wordstheimpressionthatthe3rd,4thand5threspondentswere
attempting to create in the mind of the Court is that the petitioner has prepared the said resignation letters P 1 (a),
P2 (a) and P3 (a) using the papers he had obtained from the 3rd, 4th and 5th respondents signed in blank. Therefore the3rd,
4th and 5th respondents moved for the dismissal of the petitioner's application. However in the counter objectionsfiledby
the petitioner, he has taken up the position that, it was impossible to make use of the signatures ontheblanksheetsof
paper to prepare the said letters of resignation. Further the petitioner has tendered seven affidavits markedP15(a)to
P15 (f) and P16 obtained from the other candidateswhowereelectedtoParliament(exceptthoseexpelled),fromthe
Independent Group No. 2, for the Electoral District of Jaffna, stating that the petitioner had not obtained theirsignatures
or that of any other candidate in blank papers at or about the timeoftheGeneralElectionsof1994.Itwasfurther
contended by the petitioner that the 3rd and 4th respondents have not denied or contradicted the pressinterviewsgivento
the Tamil Newspapers Virakasari and Thinakkural admitting their resignations, as evidenced by thepublicationappearingin
the said newspapers marked P12, P13 and P14 with English TranslationsmarkedP12(a),P13(a)andP14(a).Inthese
circumstances the petitioner has maintained that, he is entitledtoproceedwiththisapplicationforthepurposeof
obtaining the relief as prayed for in the application.
At the hearing of this application learned Counsel for the petitioner submitted that in view oftheexpulsionofthetwo
members 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 two candidates in the nomination paper of the Independent Group No. 2, namely,3rd
and 4th respondents are entitled to be declared elected as Members of Parliament. However the learnedCounselarguedthat,
since the 3rd, 4th and 5th respondents who were candidates numbers 11, 12, and 13, in the nomination paper accordingtothe
preferential vote at the poll, have resigned from the membership of the Independent Group No.2,theyhaveceasedtobe
candidates of the said
Independent Group No. 2, and therefore they are not entitled by lawtobedeclaredasMembersofParliamentfromthe
Independent Group No. 2. Hence Counsel submitted that it was unlawful for the 1st and 2nd respondents to declare the 3rdand
4th respondents as Members of Parliament. Learned Counsel further submitted that the contentionofthe3rd,4thand5th
respondents that (i) they have not resigned from their membership in the Independent Group No. 2 and (ii) that inanyevent
a candidate cannot lose his candidacy by resignation before he is declared a Member of Parliament is withoutanybasisand
therefore unacceptable. On this question of resignation, learned Counsel contended thatthelettersofresignationdated
22.07.1995 (P1 (a), P2 (a) and P3 (a)) of the 3rd, 4th and 5th respondents addressed to the petitioner who is theleaderof
the Independent Group No. 2 and the covering letters addressed by the petitionerdated24.07.1995tothe2ndrespondent
(Returning Officer) enclosing the said letters of resignation (Vide P 1, P2andP3)withcopiestothe1strespondent
(Commissioner of Elections) and the 6th respondent (Secretary General of Parliament) under registered articlereceiptdated
25.07.1990 marked P4, are sufficient proof of the fact thatthe3rd,4thand5threspondentshaveresignedfromthe
Independent Group No. 2. Besides Counsel contended that the fact that the resignation letters P1 (a), P2 (a) and P3 (a)have
been certified as having been duly signed by the respective respondents by a Justice of Peace establishes the genuinenessof
the said letters of resignation. According to the Counsel for the petitioner the Justice of Peace (who is now dead)whohas
certified the resignation letters was the same Justice of Peace who attested the oath of the saidrespondentscontainedin
the nomination paper of the Independent Group No. 2. It may well be that since these letter of resignation werepreparedin
English the need arose to read and understand before signing them. Counsel further referred to the newsitemspublishedin
the Tamil paper Virakesari and Thinakkural of 14.04.1999 (vide P12 and P13 with English Translations P12(a),P13(a))
where the 4th respondent has admitted the fact
of his resignation from the Independent Group No. 2 and thenewsitempublishedintheTamilpaperThinakkuraldated
16.04.1999 (vide P 14 with English Translation P 14 (a)), where the 3rd respondent has admitted the fact ofhisresignation
from the said Independent Group. Therefore Counsel submitted that the failure of the 3rdand4threspondentstodenyor
contradict the said statements attributed to them, and for that matter, their failure to give any explanation as towhythe
said newspapers published such material relating to their resignations from the Independent Group No.2,clearlyindicates
that the 3rd and 4th respondents have infact resigned from the Independent Group No. 2.
Learned Counsel for the 3rd, 4th and 5th respondents on the other hand submitted that the said lettersofresignationwere
not genuine and the said letters have been forged orfabricated.Tosupportthiscontention,Counselreferredtothe
contents in the letters of resignation, which according to him were false, in that, at no stage there had been anyagreement
with regard to the acceptance of the policies followed by the petitioner. Ontheotherhand,ifthe3rd,4thand5th
respondents had agreed with the policies of the E. P. D. P. there was absolutely no necessity for them tohavejoinedwith
the petitioner to contest the elections as an Independent Group. Counselpointedoutthatanexaminationofthethree
letters of resignation namely P1 (a), P2 (a) and P3 (a) would reveal that these letters are identicalexceptforthefact
that the addresses of the writers appearing on them are different. Further the presence of the certificate of the Justiceof
the Peace to the effect that "the above letter of resignation was read over ... and after having understood thesamesigned
in my presence on this 22nd day of July 1995 at Colombo" makes it more suspicious for the reason that, if the3rd,4thand
5th respondents prepared the said letters, then, obviously they have prepared these letters havingunderstoodthecontents
thereof. If that be the case, then there was no 'necessity for a third party namely, a Justice of Peace togetthewriters
of these letters themselves to read it, in order
to ensure that the persons who wrote them understood the contents of such letters theythemselveshavewritten.Therefore
learned Counsel submitted that these special features observed in these letters of resignation clearly showedandsupported
the fact that the letters of resignation marked P1 (a), P2 (a) and P3 (a) were fabrications.
One important fact to be noted in this case is that, 3rd, 4th and 5th respondents have atnostagedeniedthesignatures
appearing in their letters of resignation. Their argument seems to be that,thepetitionerhasmadeuseofthepapers
obtained by him signed in blank from the three respondents at or aboutthetimeoftheGeneralElectionsof1994,to
fabricate these letters of resignation marked P1 (a), P2 (a) and P3 (a). However it is hard to believe firstly that the3rd,
4th and 5th respondents who were intending to represent the voters in Parliament for the Electoral District of Jaffna atthe
General Elections of 1994, are so irresponsible and foolish to have given such papers signed in blank to thepetitioner,so
as to give him a free hand to use their signatures for whatever purpose the petitioner thought it fit. Furtherthisconduct
does not stand to reason. Secondly, even assuming that the 3rd, 4th and 5th respondents had beensostupidtohavegiven
such papers signed in blank, it would still appear impossible for one to believe that their signatures are so placedinthe
blank sheets so as to enable the petitioner to fabricate these letters of resignation in the manner' thatisfoundinthe
resignation letters marked P1 (a), P2 (a) and P3 (a). A closeexaminationofthesethreelettersofresignationwould
clearly show that the signatures appearing on them havebeenplacedafterthesaidlettersofresignationhavebeen
prepared. In addition it is to be noted that some of the Members of Parliament of the Independent Group No. 2havetendered
affidavits marked P15 (a) to P15 (f) and P16 denying categorically that the petitioner had obtained on blank sheets ofpaper
the signatures of the candidates of the Independent Group No. 2, at or about the time of the General Elections 1994.Another
factor that weighs heavily against the 3rd and 4th respondents
is the fact that they have not denied or explained the interviews granted by them to the press namely, theTamilNewspapers
Virakesari and Thinakkural (P12, P13 and P14) referred to above. This fact supports the position taken up bythepetitioner
that the 3rd and 4th respondents have infact resigned. If these news items which appeared in thepresswereincorrect,we
are unable to understand why the 3rd and 4th respondents remained silent withoutcontradictingthatposition.Afterall,
these news items refer to the interviews granted by the 3rd and 4th respondents personally. In respect of the 5threspondent
there is also another letter dated 24.07.1995 signed by the 5th respondent addressed to the 1strespondent(markedbythe
Counsel for the petitioner as P 18 at the hearing of this application) where he (5th respondent) hasadmittedthathehas
handed over his resignation on 22.07.1995 as a member of theIndependentGroupledbyMr.N.DouglasDevananda.(the
petitioner in this application). Authenticity of this letter has not been challenged.
Another relevant observation to be made here is that, theresignationsofthe3rd,4thand5threspondentsfromthe
Independent Group No. 2, seems to have taken place in the year 1995, when there was no prospect of any vacanciesarisingin
Parliament to be filled from the nomination list. In other words it would appear that the three respondents have resignedat
a time when they had no expectation of finding a place in Parliament. However four years later i. e. in the year1999,when
there appeared some prospects for the 3rd, 4th and 5th respondents to enter Parliament, it is seen that theyhavetakenup
the position that the three resignation letters signed and tendered by them to the petitioner are not genuine andthatthey
are fabrications, a position which cannot be supported from the material available before the Court. Therefore weholdthat
the three letters of resignation signed by the 3rd, 4th and 5th respondents marked P1 (a), P2 (a) and P3 (a) are genuineand
therefore the said three respondents have in fact resigned from the Independent Group No. 2.
The other matter to be considered in this application is that, since the resignations of the 3rd,4thand5threspondents
are valid and therefore the nomination paper of the Independent Group No.2hasbeenexhausted,isthe2ndrespondent
(Returning Officer) bound to inform so, to the 1st respondent (Commissioner of Elections) andthenisthe1strespondent
bound by law to call upon the petitioner to nominate two persons who are members of the Independent Group No. 2, to fillthe
two vacancies in Parliament. Learned Counsel for the petitioner and the respondents have referred to the relevantprovisions
in the constitution and the Parliamentary Elections Act, No. 1 of 1981 asamendedbyParliamentaryElections(Amendment)
Act, No. 15 of 1988.
Article 99 (13) (b) of the 1978 constitution provides as follows:
Where the seat of a Member of Parliament becomes vacant as provided in Article 66 (other than paragraph (g) of thatArticle)
or by virtue of the preceding provisions of this paragraph, the person whose name appears first in order of priorityinthe
relevant nomination paper (excluding the names of any persons who have previously been. declared elected) shallbedeclared
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 filled when all the candidates whose names appearinginthenomination
paper of a recognized political party or independent group have been exhausted by election or otherwiseand ...........
Accordingly Parliamentary Elections Act, No. 1 of 1981, as amended by Act, No. 15 of 1988,followingprovisionshavebeen
made for the filling of such vacancies.
Section 64 (1) Where the seat of a Member of Parliament becomes vacant as provided in Article 66 of theConstitution(other
than paragraph (g) of that Article) or by virtue of the provisions of paragraph 13 (a) of Article99oftheConstitution,
the Secretary-General of Parliament shall inform the Commissioner who shall direct the returningofficeroftheelectoral
district which returned such Member to fill the vacancy as providedforunderparagraph13(b)ofArticle99ofthe
Constitution within one month of such direction.
(2) The returning officershallforthwithaftercomplyingwiththedirectionoftheCommissioner,makeareturn,
substantially in Form M set out in the First Schedule to this Act to the Commissioner who shall cause the name of theMember
so declared elected to be published in the Gazette.
(3) Where all the candidates whose names appear in the nomination papersubmittedbyanyrecognizedpoliticalpartyor
independent group in respect of an electoral district have been exhausted by election orotherwiseorwherenoneofthe
candidates whose names remain on such a nomination paper have secured any preferences, and thereafter a . vacancyoccursto
be filled by a member nominated by such party or group, the returning officer of such electoraldistrictshallinformthe
(Vide Section 17 of the (amendment) Act, No. 15 of 1988.)
(4) Upon the receipt of such information the Commissioner shall require the secretary of the recognizedpoliticalpartyor
the group leader of the independent group to which the Member who vacated the seat belonged, to nominateamemberofsuch
party or group to fill the vacancy. Upon the receipt of such nomination the Commissioner shall declare such persontobea
Member for the electoral district in respect of which the vacancy occurred, and cause the name of the Member sodeclaredto
be published in the Gazette.
Learned Counsel for the petitioner submitted that the applicable provisions for the filling of a vacancy when thenomination
paper of a political party or Independent Group has become exhausted is to be found in Section 64(3)andSection64(4)of
the Parliamentary Elections Act as amended. According to the amended Section 64(3), exhaustionofanominationpapercan
take place not only by Election or otherwise, but also where none of the candidates whose names remain on suchanomination
paper have secured any preferences. Therefore learned Counsel for the petitioner contendedthatthewords"orotherwise"
appearing in the phrase nomination paper ... exhausted by election or otherwise ...ascontainedinSection64(3)would
include other instances where a candidate ceases to be a member of a politicalpartyorIndependentGroup.Accordingto
Counsel such instances would include when the nomination paper is exhausted by death, expulsion or resignation (or anyother
manner) of a candidate, and in which event he ceases to be a member of a politicalpartyorIndependentGroup.Inother
words Counsel was trying to give an interpretation to thewords"orotherwise"inSection64(3)oftheParliamentary
Elections 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
Corporation(1) at 177, where the words "or otherwise" have been interpreted to mean "or in anotherway".ThereforeCounsel
argued that the words "or otherwise" would clearly include instances where candidates whose names appearinthenomination
paper of a political party or Independent Group has died or expelled or resigned from such a political partyorIndependent
Group and thereby ceased to be candidates. In order to support his contentionlearnedCounselcitedthecaseofC.A.
220/94, C. A. minutes of 05.05.1994, (which was an Application for a writ of Prohibition and Mandamus on the Commissionerof
Elections), where the Court of Appeal comprising of Justice S. N. Silva President/ C. A. (as he was then) and Justice Dr.R.
Ranaraja gave judgment permitting the 1st respondent (Commissioner of Elections) to declare the4threspondentelectedto
fill the vacancy created by the resignation of the 3rd respondent,(IncumbentMemberofParliament)by-passingthe2nd
respondent who has been a member of the Sri Lanka Muslim Congress and would otherwisehavebeenentitledtobedeclared
elected to fill the vacancy created by the 3rd respondent's resignation, but for the fact that the 2nd respondent hasceased
to be a member of the Sri Lanka Muslim Congress upon his expulsion which was not challenged by him(2ndrespondent).Hence
Counsel submitted that, in terms ofSection64(3)oftheParliamentaryElectionsAct,thenominationpaperofthe
Independent Group No. 2, has been exhausted by virtue of the resignations of the 3rd, 4th and 5th respondents, whohavenow
ceased to be the candidates of the Independent Group No. 2. In the circumstances Counsel for thepetitionercontendedthat
in terms of Section 64(4) of the Parliamentary Elections Act, the 1st respondent (Commissioner of Elections) isrequiredby
law to call upon the Secretary of the Independent Group No. 2, who is the petitioner inthisapplicationtonominatetwo
members from his group to fill the two vacancies created in Parliament.
However, learned Counsel for the 3rd respondent (Counsel for the 4th and 5threspondentsassociatedthemselveswiththis
argument) contended that the words "or otherwise" contained in Section 64(3) of the Parliamentary Elections Actasamended,
will not include a resignation of a candidate whose nameappearsinthenominationpapersubmittedbyanyrecognised
political party or Independent Group in respect of an Electoral District. Learned Counsel's reasoning was that, if thewords
"or otherwise" are interpreted to include a "resignation" of a candidate whose name appears inthenominationpaperwould
create a situation where the Returning Officer will be called upon to holdaninquiryinordertodecidethequestion
whether a particular resignation of a candidate is genuine or not. As a resultofthissituationarising,theReturning
Officer will have to embark on an investigation or inquiry todecidewhetheracandidatehasinfactresigned.Learned
Counsel therefore submitted that the words "or otherwise" should only include such instances where no suchinvestigationor
inquiry becomes necessary by the Returning Officer. Hence Counsel contended that the only meaning that could be given tothe
words "or otherwise" would be the death of a candidate. Therefore it would appear that,iftheargument:ofthelearned
Counsel for the 3rd respondent is accepted as correct, then, the exhaustion of a nomination paper canariseonlyinthree
situations under Section 64(3) of the Parliamentary ElectionsAct,namely,whenthenominationpaperisexhaustedby
election, death or where none of the candidates whose names remain on such nomination paperhavesecuredanypreferences.
Therefore according to the Counsel's argument the one and only meaning that could be given to thewords"orotherwise"is
death of a candidate.
We find it difficult to accept this contention of Counsel for the reason that, if that was the intention of Parliament,then
surely Section 64(3) of the said act would have stated very clearly the words "the nomination paper . . . exhausted by
election or death, without using the words by "election or otherwise". Further the words "or otherwise" cannot be givensuch
a restricted meaning as suggested by learned Counsel for the 3rd respondent, as it was never the intention of theParliament
for the reason the phrase "or otherwise" by itself connotes a liberal meaning. The Oxford English Dictionary, SecondEdition
Volume X gives to the word "otherwise" the following meanings i. e. in another way, or in other waysin a differentmanner,
or by other meansdifferently. It wouldappearthereforetheword"otherwise"hasanextendedmeaningandinthe
circumstances it would be very clear as suggested by learned Counsel for the petitioner,that,whenSection64(3)stated
that the nomination paper ........... "exhausted by election or otherwise" the said words wouldnecessarilyincludedeath,
expulsion or resignation of a candidate whose name appears in the nomination paper. Suchaninterpretationisinharmony
with the 1978 constitution. (Vide Article 66.)
Further in the event of there being no dispute or controversy with regard to the expulsion or the resignation of acandidate
whose name appears in the nomination paper, then, in our considered viewtheReturningOfficerandtheCommissionerof
Elections should accordingly comply with the provisions of Sections 64(3) and 64(4) of the ParliamentaryElectionsActfor
the filling of vacancies. However if a situation arises where there is a dispute or controversy on thematterofexpulsion
or resignation (as in this case), then, such a dispute may well have to be resolved by Court before the Returning Officeror
the Commissioner of Elections could take action in terms of Sections 64(3) and 64(4) of the said act.
Further we cannot subscribe to the view as suggested by Counsel for the 3rd, 4th and 5th respondents that, a candidatewhose
name appears in the nomination paper cannot resign until he has got himself elected to Parliament. Such an interpretationis
artificial and contrary to one's freedom of thought or conscience. In the same way we are unable
to accept the argument of Counsel for the 3rd, 4th and 5th respondents that in this case a writ of Certiorari doesnotlie,
since there is no determination or decision by the 1st and the 2nd respondents who were merely complying withthestatutory
provisions. On the contrary it must be stated here that the decision or determination made by the 1st and 2nd respondentsin
this case, as evident from the material available, has been unlawful and an in excess of 'their authority.
Therefore in the present application we are of the view that the 3rd, 4th and 5th respondents have resigned and furtherthat
the words "or otherwise" in Section 64(3) of the Parliamentary Elections Act as amended would include amongotherthingsa
resignation. In the circumstances we hold that the 1st and the 2nd respondents have acted unlawfully and in excessoftheir
authority, when the 2nd respondent (Returning Officer) decided to forwardhisreturninFormMtothe1strespondent
(Commissioner of Elections) to declare the 3rd and 4th respondents to beelectedasmembersofParliamentandthe1st
respondent proceeded to cause the publication of the Gazette Extraordinary No. 1074/ 10 dated 08.04.1999 marked P10 and P11.
For the aforesaid reasons we make order granting a writ of Certiorari asprayedforinthepetition(i)toquashthe
certificate made by the 2nd respondent in terms of Section 64(2) of the Parliamentary Elections Act, inFormMnamingthe
3rd and 4th respondents as members of Parliament and (ii) toquashthe1strespondent'sGazettenoticei.e.Gazette
Extraordinary bearing No. 1074/ 10 dated 08.04.1999 marked P 10 and P 11 which. declaredthe3rdand4threspondentsas
having been elected as Members of Parliament. In addition we issue a writ of Mandamus as prayed for in thepetition(i)to
direct the 1st and the 2nd respondents to treat the nomination paper oftheIndependentGroupNo.2fortheElectoral
District of Jaffna
as having been exhausted by election or otherwise in terms of the Parliamentary Elections Act, No. 1 of 1981 asamendedand
(ii) to direct the 1st respondent to take necessary and consequential steps to calluponthepetitionertonominatetwo
members of the Independent Group No. 2 in order to fill the vacancies in Parliament on behalf of the Independent Group No.2
for the Electoral District of Jaffna. Since we have held that the 5th respondent has resigned, it is unnecessary to makeany
order in respect of him. Further we deeply appreciate the assistance given to us by Counsel.
KULATILAKA, J. - I agree.