Legal Services and Laws of Sri Lanka


SLR-2004 Vol.1-P365

SLR - 2004 Vol.1, Page No - 365

REV. SERUWILA SARANKITHI AND OTHERS

v

THE ATTORNEY-GENERAL AND OTHERS

COURT OF APPEAL

WIJAYARATNE, J.,

C.A. 852/2002 (Writ)

NOVEMBER 4, 2003
Provincial Councils Act, No. 42 of 1987, section 37(2)(a) - Writ of mandamustoholdaPollReferendumintheEastern
Province - Constitution, Articles 31, 35, 31(3), 44(2) and 87(1) - Immunity of.thePresident-Attorney-Generalmadea
party - Maintainability - Referendum Act, No. 7 of1981,section2-Necessaryparty-Laches-Evidentialvalueof
documents.

The petitioner sought a writ of mandamus directing the respondents to take necessary action to hold a Poll Referendum inthe
Eastern Province under section 37(2)(a) of Act, No. 42 of 1987 and a direction on the respondents torefrainfromaltering
the administrative structure of the Eastern Province without holding such a Poll.

The respondents objected to the application (1) on the ground that the Attorney-General has been wronglynamedasthe1st
respondent in terms of Article, 35 (2) necessary parties have not been named, (3) laches, (4) writ does not liewherethere
is a discretionary power and (5) documents attached cannot be relied upon.

Held:

1. The only instances in which acts or omissions of the President couldbethesubjectofjudicialproceedingsthrough
representation of the Attorney-General are in relation to the exercise of any power pertaining toanysubjectorfunction
assigned to the President under Article 44(4).

2. Determining the date of the Poll is one vested with the President in terms of section 37(2) of Act, No. 42 of1987.
This is not a function covered by Article 44(2). The petitioners cannot institute proceedings making theAttorney-Generala
party representing the President under and in terms of Article 35.
3. In terms of Article 87(1) and section 2 of Act, No. 7 of 1981, conductingaReferendumisthefunctionofthe
Commissioner of Elections. The Commissioner of Elections has not been made a party. It is fatal to this application.
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4. The application for mandamus is made after six months of the gazette notification. Mandamus will be refused to an
applicant guilty of undue delay.

5. In terms of section 37 of Act, No.42 of 1987 the power to determine the date of the Poll and to postpone same is
vested in the President and that too is left to the discretion of the President.

Per Wijayaratne, J.

"Copies of documents which are publications through printed and electronic media are not authentic documents as required by
the law of evidence and cannot be acted upon by a court of law."
APPLICATION for a writ of mandamus

Cases referred to:

1. Mallikarachchi v Shiva Pasupathy- Attorney-General (1985) 1 Sri LR 74

2. Abdul Rahuman v Mayor of Colombo - 69 NLR 211
Elmore Perera for petitioner

M. N. B. Fernando, Senior State Counsel for respondent
Cur. adv. vult
January 01,2004
WIJAYARATNE, J.
The several petitioners of whom 1st to 6th named are describedaselectorsofEasternProvince,makethisapplication
invoking the writ jurisdiction of this Court, against the 1st to 3rd respondents who are the Attorney-General,theMinister
and the Secretary of the Ministry of Home Affairs, Provincial Councils and Local Government

The substantial relief sought by the petitioners is the grant and issue of a mandate .inthenatureofwritofmandamus
directing the respondents to take necessary action to hold a poll in the Eastern Province underthepresentadministrative
structure as required by section 37(2)(a) of the Act, No. 42 of 1987. They also sought adirectiontotherespondentsto
refrain from altering administrative structure of Eastern Province without holding such a poll. The
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above reliefs are sought on the premise that the establishment of an InterimAdministrationlinkingtheEasternProvince
with the Northern Province without holding a poll, is imminent and establishment of such interim administrations willresult
in an irreversible and irrevocable de facto merger of the Eastern Province with the Northern Provinceinblatantdisregard
of the clear wishes of the majority of electors of the Eastern Province.

The first respondent, responding to the notice of suchapplicationwhilstresistingtheapplicationraisedpreliminary
objection to the maintainability of the same.ThematterofthepreliminaryobjectionswasarguedbeforetheBench
Comprising the two judges named above, with the appointment of H/L Tilakawardena J, (P/CA) to the Supreme Court,beforethe
judgment and order on the matter of such objections, the parties agreed that judgment be given by mealoneasoneofthe
judges before whom the matter was argued. Accordingly I shall deal with each of the objections raised as follows:

(a) The Attorney-General has been wrongly named as the 1st respondent to this application in termsofArticle35
of the Constitution.

The paragraph 2 of the petition and the corresponding paragraph of the affidavit of the petitioners state that

'The 1st respondent is the Hon. Attorney-General who has been made as party in terms of the Rules of the Supreme Courtand
the provisions of Article 35 of the Constitution in as much as the date for the poll.... has to be determined byH.E.the
President"

Thus it is the declared position of the petitioners that the 1st respondent is made apartytothisapplicationbothin
terms of Rules of Supreme Court and more so in terms of the provisions of Article 35 of theConstitution.Thismeansthat
the petitioner concedes that President who has to determine the date of the poll, cannot be suedorproceedingscannotbe
instituted against, in terms of the provisions of Article 35 of the Constitution. However thepetitionerselectedtohave
these proceedings instituted against the Attorney-General purportedly in terms of Article 35(3)oftheConstitutionwhich
reads:
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"The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedingsinanycourt
in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining inhis
charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2)ofArticle129orto
proceedings in the Supreme Court under Article 130(a) relating to the election of the President:

Provided that any such proceedings in relation to the exercise of any power pertaining to any such subject or function shall
be instituted against the Attorney-General'

According to the above provisions of Sub Article 3 the only instances in which acts or omissions of thePresidentcouldbe
subject of judicial proceedings through the representation of the Attorney-General are in relation totheexerciseofany
power pertaining to any subject or function assigned to the President under Article 44(2) of the Constitution.Definingthe
nature and the scope of proceedings which may be instituted against the Attorney- so General, the Supreme Court inthecase
of Mallikarachchi v Shiva Pasupathi, Attorney-General (1)

"The petitioner's complaint of illegality of the proscriptionordermadebythePresidentdoesnotqualifytobea
proceedings in relation to the exercise of any power pertaining to any subject or function in thechargeofthePresident
under Article 44(2) and hence these proceedings could not have been instituted against theAttorney-General.TheAttorney-
General is not competent to represent President in proceedings not covered by the proviso to Article 35(3). Rule65ofthe
Supreme Court Rules requiring the Attorney-General tobecitedasarespondentinproceedingsfortheviolationof
Fundamental Rights under Article 126 of the Constitution does not visualise the Attorney-Generalbeingmadeasoleparty
respondent to answer the allegations in the petition'.
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In deed, the petitioners have conceded that the powers of determining the date of the poll is one vested withthePresident
in terms of the provisions of sec. 37(2)(a) of Provincial Council Act, No.42 of 1987. There is notevenasuggestionthat
such is a function that is 100 covered by Article 44(2) of the Constitution. Then the petitioner couldnothaveinstituted
these proceedings making Attorney-General a party representing the PresidentunderandintermsofArticle35ofthe
Constitution, and the objection is validly raised.
b) Failure to name the relevant parties.
The petitioners seeking the issues of' a mandate in the nature of mandamus to hold thepollhavenotmadetheauthority
whose duty and responsibility it is to hold the poll referendum to enable the elector to decide whether provincesshouldbe
linked or constitute separate administrative units. In terms of the provisions of Article no 87(1) oftheConstitutionand
section 2 of the Referendum Act, No. 7 of 1981 conducting a referendum is the function of the Commissioner of Elections.Any
of the respondents named in this application has no power or authority to conduct a poll for the purposementionedinthis
application. Accordingly mandamus will not be issued as the respondents have nopowertoperformtheactsoughttobe
mandated in this application.
c) Laches on the part of petitioners
In the application dated 03rd May 2002 the petitioners (in para. 18 of the petition) concedes thatthePresidentbyorder
published 120 in the Gazette dated 7.11.2001 the Poll in the Eastern Province was postponed to16.11.2002.Thepetitioners
complain that the proposal to be put to the electors at the referendum have notbeenspecifiedintheproclamation.The
application for mandamus is made at least six months after the Gazette notification and thepetitionersdonotappearto
explain the delay in making this application. Not even in their submissions, dothepetitionersexplainsuchdelay.The
accepted norm in the field of administrative law is that "mandamus is refused to an applicant guilty of undue delay.Inthe
case of Abdul Rahuman v The Mayor of Colombo (2) with the unexplained delay, it was held that:

"it is sufficient for us to say that in view of this delay and the consequences of such delay, an application for awritof
mandamus must fail."
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d) Writ of mandamus does not lie where there is a discretionary power.

The petitioners in their prayer to the petition seek issuance of a "Writofmandamusdirectingtherespondentstotake
necessary action to hold a poll in the Eastern Province...... as required by sec.
37(2) (a) of the Provincial Councils Act,- No. 42 of 1987 as early aspossible."

However the petitioners concede in their application in terms of the provision of sec. 37 of the Provincial Councils Actthe
power to determine the date of the Poll and to postpone the same is vested in the President andthattooislefttothe
discretion of the President. In their submissions too the petitioners concede that"thePresidentmayinherdiscretion
decide to postpone the saidpolls....."ItisbeyondargumentthatintheeventofthePresidentexercisingher
discretionary power and decides to postpone the poll, there is nothing that any of therespondentscoulddotoholdthe
pollfor that matter not even theElection Commissioner could perform toward theconductofthepoll.Accordinglythe
petitioners', application to compel the respondents to take necessary action to hold a poll, the date of holding the sameis
solely determined by the President in the exercise of her discretionarypowers,isamisconceptionoflawandisnot
tenable.

e) Evedential value of the documents relied on by the petitioner.
The petitioners have attached copies of many a document which are publications throughprintedandelectronicmedia,and
rely on them as providing the basis of their contentions as grounds for the issuanceofawritofmandamus.Thematter
referred to there mayperhaps be the subject of common knowledge of many a member of public in thiscountryandeventhe
rest of the world. However the documents attached to the petition are not authentic documentsasrequiredbythelawof
evidence and cannot be acted upon by a Court of Law.

Accordingly I hold that the several preliminary objections as discussed above, are taken validly andupholdthesame.The
matters of such objections go to the root of the matter of the application and hence the application of thepetitionersfor
the. issuance of mandate in the nature of writ of mandamus cannot be maintained. Noticerefused.
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In the result the application is rejected. No order of costs is made as the application is one made in the exercise of a
citizens franchise.

Application dismissed.


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