Legal Services and Laws of Sri Lanka


SLR-2001 Vol.3-P207

SLR - 2001 Vol.3, Page No - 207

DHARMADASA GOMES

v.

COMMISSIONER OF ELECTIONS AND ANOTHER

COURT OF APPEAL

DE SILVA, J. (P/CA)

AMARATUNGA, J.

C.A. 1045/2001

JULY 31TH, 2000
Writ of Prohibition - Commissioner of Elections - Referendum Act 7 of 1982 - S. 2 - Constitution -Articles 82,83,85,86,
and 140 - Interpretation Ordinance S. 24, S. 24(1), S. 24(2) - Holding of a Referendum - Can theCommissionerofElections
consider its validity? Applicability of S. 24 on State Officers.

The petitioner sought a Writ of prohibition preventing the Commissioner of Elections from holding aReferendumdirectedto
be held by a Proclamation issued by the President in terms of Section 2.

It was contended that the President has no power to issue a Proclamation and the Commissioner of Elections hasadiscretion
not to carry out the directions given by the President, as such directions are illegal.

Held :
(i) The Commissioner has no judicial power to consider the validity oftheactsoftheHon.Presidentincallingfor
Referendum or Election.

(ii) Where public officers are acting in their official capacity, Section 24 of theInterpretationOrdinance,wouldapply
and no injunction would lie in the circumstances.

Per J. A. N. de Silva, P/CA.
"If the relief prayed for is granted it would amount to an injunctionagainsttheState,asthePresidentunderwhose
direction the Commissioner of Elections is to hold the Referendum, is the Head of State.
(iii) The Commissioner of Elections being a Public Officer is covered by Section 24.

APPLICATION under Article 143 and 14(1) of the Constitution.
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Cases referred to :

1. Samaraweera and another v. Sunpower Systems (pvt) Ltd and another - 1996 - 1 SLR 246.
Petitioner in person.

Saleem Marsoof P.C., A. S. G., with State Counsel Rajiv Goonetilake for Attorney - General.
Cur. adv. vult.
August 02, 2001.
J. A. N. DE SILVA, J. (P/CA)
This is an application for a writ of Prohibition preventing the 1st respondent the Commissioner of Elections fromholdinga
Referendum directed to be held by the Proclamation dated 10. 07. 2001 issued by the President in terms of Section2ofthe
Referendum Act No 7 of 1982. The petitioner Pattiyage Dharmadasa Gomes, who is an Attorney-at-lawhasnotusedthewords
"Writ of Prohibition" in paragraph (C) of the prayer to his petition. That paragraph merely prays to "prohibit"theholding
of the Referendum. The caption of his petition refers to Article 140 of the Constitution. Since the said Article refers toa
Writ of Prohibition we proceed on the basis that he has sought by his petition a Writ of Prohibition.

When this application came up for support on 18. 07. 2001, this Court, without formallyissuingnoticeasprayedforin
prayer (a) of the petitioner's application, has directed the Hon. Attorney General to appear inthisCourttoassistthe
Court and adjourned further hearing for 25. 07. 2001.

When the hearing resumed on 25. 07. 2001, in deference to the request made by this Court,Mr.SaleemMarsoof,President's
Counsel, Additional Solicitor General with a State Counsel appeared in this Court to assist Court.

However before we consider the submissions of the petitioner I would like to advert to thepleadings.ForthispurposeI
reproduce below verbatim paragraph 10 of the petitioners application.
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(10) "The petitioner humbly states that Article 85 is very Clear as to what are the types of bills that be placed beforethe
people. The President ordered under Article 86 to hold a Referendum on amatterofNationalImportance.Butorderinga
Referendum under Article 86 has to be ordered subject to Article 85. Where Article 85 is very clear as to what type ofbills
that can be placed before the people. According to Article 85 no bill which touches the Constitution cannot be placedbefore
the people.

The framers of this Constitution has specifically mentioned in Article 85 there cannot be any change in theConstitutionor
calling the people for a new Constitution as the framers have included very clearArticlesnamelyArticle82and83to
change, to amend, to add or to introduce a new Constitution, replace this Constitution with a new Constitution."

From the paragraph quoted above it is difficult to gather theexactpropositionputforwardbythepetitionerinhis
petition, However in his oral submissions before this Court thepetitionersubmittedthatintermsofArticle86the
Presidents' power to submit any matter of National Importance to the people by referendum is limited bythewordsusedin
Article 85 of the Constitution.

It is relevant to note that the petitioner has prayed for the following reliefs in his petition.
(a) To issue notice on the respondents.
(b) To grant interim relief by issuing an Injunction on the 1st respondent taking any steps to hold aReferendumuntilthe
determination of the petition. If the 1st respondent is allowed to carry out an illegal orderwillresultanirremediable
mischief which might cost millions of public funds.
(c) To prohibit the 1st respondent holding the Referendum which had been ordered by the President of SriLankawhohasno
Constitutional right to order an Referendum for a new Constitution.
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(d) To order the 1st respondent not to carry out any unconstitutional and illegal orders by any person including the
President of Sri Lanka.
(e) Costs.

(f) Such other and further relief as to your Lordships Court shall seem meet.
It is also pertinent to note that the petitioner has not prayed to quash the ProclamationofthePresidentdirectingthe
Commissioner of Elections to have a Referendum. In these circumstances it is redundant toexaminethepoweroftheHon.
President to issue a Proclamation and to have a Referendum. The main contention of the petitioner was that the Presidenthas
no power to issue a Proclamation and the Commissioner of Elections has a discretion not to carry out the directions givenby
the President as such directions are illegal. We are not in agreement with this proposition. We holdthattheCommissioner
of Elections has no judicial power to consider the validity of the acts of the Hon. President in callingforReferendumor
Elections.
We are also mindful of the fact that Section 24 of the Interpretation Ordinance has placed limitations on Court with regard
to the issuing of injunctions on State Officers.

Section 24(1) of the Interpretation Ordinance precludes any Court from granting injunctions against the State, a Ministeror
Deputy Minister upon any ground whatsoever. Furthermore, by Section 24(2),aCourtisevenprecludedfromgrantingan
injunction against a public officer if the effect of so doing would amount to directly or indirectly restrain the State.

Section 24 mentioned above read as follows.
"(1) Nothing in any enactment, whether passed before or after the commencement of this Ordinance, shall be deemedtoconfer
upon any Court jurisdiction to grant injunctions or
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to make orders for specific performance against the State, a Minister or Deputy Minister, upon any ground whatsoever.
(2) No Court shall upon any ground whatsoever grant any injunction or make any order against a public officer, if theeffect
of the granting of such injunction or the making of such order would be, whether directlyorindirectly,torestrainthe
State, a Minister or a Deputy Minister from proceeding with, or to compel the performance bytheState,aMinisterora
Deputy Minister of, any matter or thing.

(3) Where before the coming into operation of the section, any injunction has been granted byanyCourt,whichinjunction
such Court would not have had the jurisdiction to grant if this section had then been inoperation,suchinjunctionshall
for all purpose be deemed to have been and to be null and void and no force or effect in law.

(4) In this section, "injunction" includes a permanent or interim injunction, whether ex parteorotherwise,anenjoining
order, or any other order having the effect of staying or restraining any person or authority referred tointhepreceding
subsections.

(5) The preceding provisions of this section shall not be deemedtoaffectthepowerofanyCourttomakeanorder
declaratory of the rights of parties.

(6) The provisions of this section shall have effect notwithstanding section 6 or any other provisions of thisOrdinanceor
the provisions of any other law."

The decision in Samaraweera and Another v. Sunpower Systems (Pvt.) Ltd. and Another has a direct bearing onthisissue.It
was held in that case, inter alia that where public officers are actingintheirofficialcapacity,section24ofthe
Interpretation Ordinance would apply and no injunction would lie in the circumstances.
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It is observed that if the relief prayed for in this applications - is granted, it would amount to an injunction againstthe
State, as the President under whose direction the Commissioner of Elections is to hold the Referendum, is the Head of State.

The Commissioner of Elections being a public officer is covered by Section 24oftheInterpretationOrdinance.Therefore
this Court cannot grant any of the reliefs prayed for by the petitioner. In the circumstances this applicationisdismissed
however without costs.

Application dismissed.


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