KARUNATHILAKA AND ANOTHER
v.
DAYANANDA DISSANAYAKE,
COMMISSIONER OF ELECTIONS AND OTHERS
(Case No. 1)
SUPREME COURT
G. P. S. DE SILVA, CJ.,
FERNANDO, J. AND
GUNASEKERA. J.
S.C.
APPLICATION NO. 509/98
DECEMBER 04 AND 07,
1998
Fundamental rights Provincial Councils
Election Date of the poll S. 22 (1) of the Provincial Councils
Elections Act Cancellation of the date by Emergency Regulation
Articles 12 (1) and 14 (1) (a) of the Constitution.
The period of office
of the Central, Uva, North Central, Western and Sabaragamuwa Provincial
Councils came to an end in June, 1998. The
Commissioner of Elections (the 1st respondent) fixed the nomination
period in terms of section 10 of the Provincial Councils Elections Act, No. 2 of 1988. After the receipt of nominations which concluded on 15.07.1998 each returning officer fixed 28.8.98 as the date of the poll by a notice
under section 22 (1) of the Act. The
issue of postal ballot papers in terms of section 24 of the Act read with
Regulation 10 of the second schedule to the Act was fixed for 4.8.98. But by telegram
dated 3.8.98, the respective
returning officers suspended the postal voting without adducing any reason
therefore. The very next day on 4.8.98 the
President issued a Proclamation under section 2 of the Public Security Ordinance (PSO) bringing the provisions of
Part II of the Ordinance into operation throughout
Held:
1. The making of the
Proclamation and the Regulation as well as the conduct of the respondents in
relation to the five elections, clearly constitute "executive action"
and the court would ordinarily have jurisdiction under
Article 126 of the Constitution. That jurisdiction is not ousted by Article 35. Article 35 only
prohibits the institution of legal proceedings against the President while in
office. It does not exclude judicial review of an impugned act or omission
against some other person who does not enjoy immunity from suit but relies on
an act done by the President in order to justify his conduct.
2. In the exercise of its
jurisdiction under Article 126 the court has the power,notwithstanding
the ouster clause in section 8 of the PSO, to review the validity of the
impugned regulation.
3. The impugned regulation
is not a valid exercise of the power under section 5 of the PSO. It is not an Emergency Regulation. It has,
rather, the character of an order purporting to suspend notices lawfully issued
under the Act. Such an order is
not authorized by law. In any event, the impugned regulation cannot be
sustained as being for a purpose set out in section 5 of the PSO as the
petitioner had established that prima facie
upto the end of July, 1998, there was no known threat to national security,
public order, etc., and the
respondents failed to show that even in August, 1998,there
was any such threat.
4. The suspension of the issue of postal
ballot papers in which the 1st
respondent
acquiesced was unlawful, arbitrary and not bona
fide; it was done with knowledge that the impugned proclamation and
regulation would be made the next day and for a collateral purpose; whether the
impugned regulation was valid or not the 1st respondent had the power to appoint a
fresh date for the poll in terms of section 22 (6) of the Provincial Councils
Elections Act. He failed to exercise that power. In the meantime the date of he poll for the North Western
Provincial Council was fixed for 25.1.1999 whereby the voters of the other five
provinces were treated less favourably. In the circumstances Article 12 (1) was
infringed.
5. The respondents also
infringed the petitioner's rights under Article 14 (1) (a) of the Constitution.
The freedom of "speech and expression" guaranteed by that Article
should be broadly construed to include the exercise of the right of an elector
to vote at the election.
Per Fernando, J.
"The silent and secret expression of a citizen's preference between one candidate and another by casting his vote is no less an exercise of the freedom of speech and expression than the most eloquent speech from a public platform."
Cases
referred to:
1. Joseph
Perera v. AG (1992) 1 Sri LR 199, 230.
2. Wickremabandu
v. Herath (1990) 2 Sri LR 348, 361, 374.
3. Silva
v. Bandaranayake (1997) 1 Sri LR 92.
4. Weerasinghe
v. Samarasinghe (1966) 68 NLR 361.
APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonesekera with
Suranjith Hewamanne, J. C. Weliamuna and Ms. Krishanthi Pinto Jayawardena for the petitioners.
K. C. Kamalasabayson, PC, SG with U.
Egalahewa, S. C. Viran Corea, SC and M.
Gopallawa, SC for the respondents.
Cur. adv. Vult.
FERNANDO,J.
This application is
a sequel to the failure to hold elections for the Provincial Councils of the
Central, Uva, North Central, Western and Sabaragamuwa provinces.
The five year
terms of office of those Provincial Councils came to an end in June, 1998,
although not on the same day. Each province consists of two or more
administrative districts, and each such district constitutes an electoral area
for the purpose of elections to the Provincial Council of that province.
Section 7 of the Provincial Councils Elections Act, No. 2 of 1988, (the Act),
requires the Commissioner of Elections to appoint a returning officer for each
such district. Section 10 provides:
(1) Within one week of the
dissolution of a Provincial Council by reason of the operation of Article 154E
of the Constitution . . . the Commissioner shall publish a notice of his
intention to hold an election to such Council. The notice shall specify [the
"nomination period"] during which such nomination papers
shall be received by
the returning officer of each administrative district in the province. . .
(2) The nomination period
shall commence on the fourteenth day after the publication of the notice . . .
and expire . . . on the twenty first day after the day of publication of
such notice."
Notices under
section 10 of the Act were duly published in June, 1998. The nomination periods
for two elections expired on 3.7.98, for the third on 11.7.98, and for the
other two on 15.7.98, and the nomination processes had been completed by those
dates. All five elections being contested, section 22 (1) required every
returning officer, "as soon as may be after the conclusion of the
[nomination] proceedings", to publish a notice specifying the date of poll
"being a date not less than five weeks or more than eight weeks
from the date of publication of the notice" as well as other
particulars relating to the duly nominated candidates and the situation of the
polling stations. Notices in respect of all the districts twelve in
number were published on 15.7.98, fixing 28.8.98 as the date of poll.
It appears from
the above statutory provisions that the Act was intended to ensure a speedy
election, within about three months of dissolution. That object would have been
achieved had the poll been taken on 28.8.98. But that did not happen.
In this
application the two petitioners complain that the failure of the 1st respondent,
the Commissioner of Elections (the Commissioner), and the 2nd to 13th respondents (the returning officers of the
twelve districts) to hold elections to the five Provincial Councils, on and
after 28.8.98, was an infringement of their fundamental rights under Articles
12 (1) and 14 (1) (a).
Before that
date of poll was fixed, the 1st respondent had summoned a meeting of
all recognized political parties. According to the minutes of that meeting,
held on 25.6.98, the 1st respondent stated
that "elections to Provincial Councils will be
held on a single day as mentioned at the previous meeting", and the
Inspector General of Police stated that "necessary security will be
provided for the election and that he is working out a scheme to fulfil these
requirements". He made no reference to any difficulty in providing
security, whether the five elections were simultaneous or staggered.
The 1st respondent,
in his affidavit filed in these proceedings, did not allege any change in the
security situation, or any difficulty in obtaining or providing security for
the poll. On the other hand, in support of their contention that security was
not a problem during the relevant period, the petitioners pointed out that the
I must refer at
this stage to another important matter. The Act provides for postal voting.
Regulation 10 of the Postal Voters' (Provincial Councils Elections)
Regulations, 1988, contained in the second schedule to the Act, requires every
returning officer "not later than ten days after the last day of the
nomination period" to give notice of the time and place at which he would
issue postal ballot papers.
Regulation 17
provides that every returning officer "shall, immediately on receipt of a
[postal ballot] before the close of the poll, place it unopened in the postal
voters' ballot box"; and Regulation 19 provides for the counting of postal
votes "as soon as possible after the close of the poll". There is
thus no provision and, indeed, no need for provision for a
separate date of poll in respect of postal voting. The postal voting process is
ancillary to the poll itself, and would end with the poll, whether taken on the
date originally fixed or on some subsequent date. The Regulations do not
expressly authorize the postponement or cancellation of the postal voting
process. That is unnecessary: if the original date of poll is postponed,
Regulation 17 ensures that the postal voting process would continue
until the close of the poll on the new date; and if
the poll itself is validly cancelled, that would automatically abort that
process.
It is not
disputed that all the returning officers had given notice that postal ballot
papers would be issued on 4.8.98. The petitioners produced one such notice
dated 23.7.98. If all the notices had been issued on that date, it would mean
that in respect of three Provincial Councils notices had been issued more than
ten days after the last day of the nomination period. Nevertheless, that would
have left 24 days for the completion of the postal voting process. The
petitioners averred that "by telegram dated 3.8.98, the respective
returning officers suspended the postal voting that was fixed for 4.8.98 . . .
and no reasons were given for such suspension", and this the respondents
admitted. A copy of one such telegram sent by the Assistant Commissioner of
Elections, Kalutatra, was produced. Our attention was not drawn to any
provision of the Act or of the Regulations which empowered the Commissioner, an
Assistant Commissioner, or returning officers to suspend the issue of postal
ballot papers; or to restart that process after suspension. But even if such
provisions can be implied, that suspension, at that point of time, made it
extremely difficult to restart the postal voting process in time to complete it
by 28.8.98. It is most unsatisfactory that neither the 1st respondent, nor the 2nd to 13th respondents, have explained to the public and
to this Court, why the issue of postal ballot papers was suspended. Article 103
of the Constitution guarantees to the Commissioner of Elections a high degree
of independence in order to ensure that he may duly exercise
efficiently, impartially and without interference the important
functions entrusted to him by Article 104 in regard to the conduct of elections,
including Provincial Council elections. But the constitutional guarantee of
independence does not authorize arbitrariness. That guarantee is essential for
the Rule of Law, and one corollary of independence is accountability.
Accordingly, the Commissioner could not withhold the reasons for his conduct
just as the constitutional guarantee of independence of the Judiciary does not
dispense with the need to give reasons for judgments.
The very next
day, on 4.8.98, HE the President issued a Proclamation under section 2 bringing
the provisions of Part II of the Public Security Ordinance (PSO) into operation
throughout Sri Lanka, and made the following Regulation (the "impugned
Regulation") under section 5 :
"For so long, and so long only, as Part II of the Public Security
Ordinance is in operation in a province for which a Provincial Council
specified in Column I of the Schedule hereto has been established, such part of
the Notice under section 22 of the Provincial Councils Elections Act, No. 2 of
1988, published in the Gazette specified in the corresponding entry in Column
II of the Schedule hereto, as relates to the date of poll for the holding of
elections to such Provincial Council shall be deemed, for all purposes, to be
of no effect."
The previous
Proclamation under section 2, made one month before, had brought the provisions
of Part II of the PSO into operation in
the Northern and Eastern provinces and in some
parts only of the other seven Provinces : namely, in specified parts of seven (out of the seventeen)
districts in those seven provinces. Indeed, it was the Petitioners' contention
which was not disputed that for a considerable period before August,
1998, the Proclamations made, from time to time, under section 2 applied mainly
to those two provinces, and not to the whole of Sri Lanka. The petitioners also
averred that the 1994 Presidential Election had been held while a similar
Proclamation had been in force.
The learned
Solicitor General stated during the oral argument that the impugned
Emergency Regulation was the only one made pursuant to the extension of the
emergency to the whole of Sri Lanka.
The poll was
not taken on 28.8.98. It must be noted that the impugned Regulation did not
purport to cancel the five elections altogether, but only to "deem to be
of no effect" in effect, to cancel the particular date of
poll (namely, 28.8.98) already fixed by notices
under section 22. It
invalidated or suspended those notices, but did not purport to override, amend
or suspend any provision of the Act or of the Regulations, and it left
untouched the provisions of section 22 (6) :
"(6) Where at an election of members of a Provincial Council from
the administrative districts within the Province for which that Provincial
Council is established, due to any emergency or unforeseen circumstances
the poll in any such administrative district cannot be taken on the day
specified in the notice published under subsection (1), the Commissioner [of Elections] may, by notice published in the Gazette,
appoint another day for the taking of the
poll in such administrative district and in every other administrative
district within that province, such other day being a day not earlier than the
fourteenth day after the publication of the notice in [the] Gazette." [emphasis added]
Although speedy
elections were, undeniably, a matter of paramount public importance, the 1st respondent did nothing, on and after 4.8.98,
to fix another date of poll.
The petitioners
filed this application on 3.9.98, alleging that:
(1) the Proclamation was an
unwarranted and unlawful exercise of discretion contrary to the Constitution,
not made bona fide or in
consideration of the security situation in the country or the five provinces,
but solely in order to postpone the five elections;
(2) the Proclamation and the
impugned Regulation constituted an unlawful interference with and usurpation of
functions vested in the Commissioner of Elections, under the Constitution and
the Act, and compromised his constitutionally guaranteed independent status;
(3) the impugned Regulation
was contrary to Article 155 (2) of the Constitution, because it had the legal
effect of overriding and suspending the provisions of the Constitution relating
to
(i) the
continued existence of the five Provincial Councils,
(ii) the franchise, and
(iii) Articles 12 (1) and 14 (1) (a); and
(4) the conduct of the 1st to 13th respondents in not holding the said five
elections was "unreasonable, arbitrary, contrary to law, for a collateral
purpose, discriminatory, and in violation of Article 12 (1) and Article 14 (1)
(a) of the Constitution".
They prayed for
a declaration that their fundamental rights under Articles 12 (1) and 14 (1) (a) had been violated, and for an order
directing the 1st to 13th respondents to nominate a fresh date for the
five elections and to take steps to hold those elections in terms of section 22
of the Act forthwith. Although they prayed for costs they did not ask for
compensation.
At this stage I
must mention two important events which occurred thereafter, in or about
November, 1998: the Provincial
Councils Elections (Special Provisions) Bill (the Bill) was placed on the Order
Paper of Parliament, and the Provincial Council of the North Western
province was dissolved upon the expiration of its five year term of
office.
The Bill sought
to achieve two objectives. Clause 2 purported to vest in the Commissioner the
duty, within four weeks of the date of commencement of the Bill when enacted
into law, to appoint a date of poll for the said five elections "having
regard to the periods specified in section 22 (1) (c)" of the Act, "in lieu of the date of poll specified
in the Notice published under section 22". Clause 3 purported to empower
the Secretary of a recognized political party or the group leader of an
independent group to substitute, in place of the name of any candidate
appearing in an already completed and accepted nomination paper, the name of
another person with his consent but without the consent of, and even
without notice to, the former candidate.
The Bill
contained no provision which would have enabled the Commissioner or the
returning officers, notwithstanding the lapse of
more than ten days
after the last day of the nomination periods, to give notice afresh of the time
and place of issue of postal ballot papers. It is true that Regulation 10 (2)
does provide for a "subsequent issue" of postal ballot papers, but
that cannot be done unless an initial issue (ie of the identical ballot papers)
had already taken place under Regulation 10 (1). And even if an initial issue
had taken place, the "subsequent issue" contemplated by Regulation 10
(2) is an issue of identical ballot papers, and not of "amended"
ballot papers.
This Court, in
its determination made on 30.11.98, held that both clauses were inconsistent
with, inter alia, Article 12 (1) of
the Constitution. In coming to that conclusion, this Court found that the Act
already made provision, in section 22 (6), for fixing another date for the
poll, and went on to consider the impact of the Bill on that provision:
"If for any reason, which falls within the ambit of "any
emergency or unforeseen circumstances", the poll cannot be taken on the
day specified by the returning officer under section 22 (1), section 22 (6)
gives the Commissioner the power to appoint another day. It is clear that he
may do so either before the appointed
day, or on or after the appointed
day; for instance, if one week before that
day widespread floods (or a serious epidemic) make it evident that a proper
poll cannot be held on that day, or if on
that day, any "emergency or unforeseen circumstances" prevent the
taking of the poll. Here, on 4.8.98, the Commissioner was faced with an
Emergency Regulation purporting to suspend the notices issued under section 22
in relation to the date of poll. If the Proclamation had ceased to be operative
before 28.8.98 (in all five provinces or even in one province) by
virtue of revocation, or disapproval by Parliament, or otherwise then
some or all of those notices would once again have become unquestionably
operative, and the poll could have been taken on 28.8.98. But that did not
happen, and ex facie the Proclamation
continued to be operative: and so the poll was not taken on the due date. As far as the Commissioner was concerned, on and after 28.8.98 the position (whether the Regulation was valid or not)
was that the poll had not been taken on
the due date because of "emergency
or unforeseen
circumstances". Section 22 (6) was
therefore applicable. He had therefore the power to appoint another day
for the poll. And if he had done so, a poll would have been taken on the
basis of (i) the notice which he then issued under section 22 (6), which notice
could not have been affected in any way by the Emergency Regulation previously
made on 4.8.98, and (ii) the nominations already published in the
"nominations" part of the notices issued by the returning officers on
15.7.98, which part the Emergency Regulation had not touched." [emphasis
added]
From the
learned Solicitor General's written submissions filed in this
application, it appears that he does not agree with the conclusion that
"as far as the Commissioner was concerned, on and after 28.8.98 the
position (whether the Regulation was
valid or not) was that the poll had not been taken on the due date because
of 'emergency or unforeseen circumstances' [and that] he had therefore the
power to appoint another date for the poll". The learned Solicitor General
contended that the Commissioner could exercise his power only if the
Proclamation and Regulation are valid: if not, "section 22 (6) cannot be
invoked".
I am unable to
accept that contention because it requires the addition of restrictive words to
section 22 (6), so as to make it read:
"Where . .
. due to any emergency or unforeseen circumstances, arising otherwise than from the unlawful [or invalid or improper] acts
of any person, the poll . . . cannot
be taken on the day specified . . . the Commissioner may . . . appoint another
day . . ."
The language of
section 22 (6) is plain and unambiguous. The word "any", used in
relation to "emergency or unforeseen circumstances", is an
unambiguously clear indication that all
such events and circumstances are included, howsoever caused. There is no
justification for restricting that provision in any way: it applies whether the
emergency or the unforeseen circumstances are the consequence of natural causes
or of human acts; and in regard to
the latter, whether
they are the acts of the Commissioner (or his officers), or of candidates (or
their supporters), or of third parties. Likewise, the section makes no
distinction between lawful and unlawful acts.
Even if there
had been any ambiguity or uncertainty (and I am satisfied that there is none),
the context demands that a broader rather than a narrower interpretation be
adopted. If the Commissioner had power to fix a new date only where the poll
was not taken due to a lawful act, it would mean that in all other cases a fresh
poll could not be taken: there would then be no election, and therefore no
elected Provincial Council. That would render nugatory the provisions of
Chapter XVII A, and especially Article 154 A, of the Constitution which
contemplate the continued existence of elected Provincial Councils. Further, to
accept an interpretation which would not permit the fixing of a new date, where
unlawful acts prevented the taking of the poll on the date originally fixed,
would be an open invitation for the disruption of the poll by the
political thuggery of contestants, by the terrorist acts of non contestants,
or by any other means. Again, if the Commissioner's officials deliberately
destroyed the ballot papers and thereby prevented the poll, the Commissioner
would be unable to fix a new date. To restrict the ambit of section 22 (6), as
the learned Solicitor General suggests, would do violence to its
language.
In my view,
"any", "emergency" and "unforeseen
circumstances", and the power of the Commissioner to fix a new date, must
be given the widest construction which is reasonably possible, so as to enable
an election to be held, and not a construction which would result in its
indefinite postponement or cancellation.
The learned
Solicitor General's contention exposes a flagrant contradiction in the 1st respondent's position. The 1st respondent averred that the impugned
Regulation was validly made under section 5, and that upon its publication he
"had no alternative but to refrain from taking any further steps towards
the holding of the Provincial Councils elections". If indeed it was his
position that he could exercise
his power under
section 22 (6) only if the Proclamation and the Regulation were valid, and if
his honest view was that the Proclamation and the Regulation were valid, why
did he not promptly fix a new date? The conclusion is inescapable that the 1st respondent did not consider whether the
impugned Regulation was valid and what his powers and duties were, but tamely
acquiesced in the indefinite postponement of those elections.
It is necessary
at this stage to consider whether "may" in section 22 (6) confers an
unfettered and unreviewable discretion, or a power coupled with a duty. Since
Article 154A contemplates the continued existence of elected Provincial
Councils, it follows that elections must not be delayed more than is really
necessary. The power to fix a new date must therefore be exercised whenever the
circumstances demand it, and especially where the taking of the poll is
prevented by unlawful means. Had the 1st respondent refrained, initially, from
exercising his discretion because in his honest opinion he reasonably concluded
that the prevailing circumstances did not permit a poll to be taken, that would
have been a proper exercise of discretion; but even so, he would have been
obliged, thereafter, to exercise his discretion no sooner the circumstances
changed. Here, the 1st
respondent did not even consider, initially or at any subsequent stage,
whether he should fix a new date. Instead he simply assumed that he was bound
to refrain from taking any further steps towards holding Provincial Council
elections. He persisted in his failure to fix a new date, despite the
determination of this Court dated 30.11.98, and what transpired on 7.12.98,
when judgment was reserved in this case:
"The Solicitor General states that he would discuss with the
1st respondent the question
of appointing another date for the taking of a poll in respect of these five
elections in terms of section 22 (6) . . . in the light of the determination of
this Court . . . made on 30.11.98."
We then made it
clear that :
"There is no objection to the 1st respondent taking steps under section 22 (6)
while judgment has been reserved."
That failure
was the more serious because during the oral argument counsel stated that the
term of office of the Provincial Council of the North Western province
had come to an end, and that the nomination process was under way. The date of
poll has now been fixed for 25.1.99, following as the respondents'
written submissions state
"the normal procedure in terms of the existing law". The result is
that an election will take place first in respect of that Council, dissolved
nearly six months after the other five, although a new date of poll has not
even been fixed for the latter. Citizens resident in the five provinces are
thus being less favourably treated than those of the North Western
province, in respect of their right to vote.
The respondents
have attempted to disclaim responsibility for the continuing failure to hold
the elections to those five Provincial Councils. The written submissions filed
on their behalf claim that "the petitioners' application is misconceived
in law for the reason that their main challenge which is in respect of [the
impugned Proclamation and Regulation, which] are totally unrelated to the
functions of the Commissioner of Elections". It is argued that the
impugned Regulation compelled the 1st respondent "to refrain from taking any
further steps", and that any action by the respondents contrary to the
impugned Regulation "would be dangerous and expose the people and the
voters to unnecessary risks". And so, it is urged, "the respondents'
action in not proceeding with the election and thereby giving effect to [the
impugned Proclamation and Regulation] cannot infringe upon the fundamental
rights of the petitioners".
That plea is
misconceived both in law and in fact. The Commissioner has been entrusted by
Article 104 with powers, duties and functions pertaining to elections, and has
been given guarantees of independence by Article 103, in order that he may
ensure that elections are conducted according to law: not to allow elections to
be wrongfully or improperly cancelled or suspended, or disrupted, by violence
or otherwise. He was not entitled to assume that the impugned Regulation was
valid; and even if it was valid it was his duty, in the exercise of his power
under section 22 (6), to have fixed a new date on which in his best
judgment a free and fair poll would have been possible.
Page 171
Further, the
undisputed facts establish that the 1st respondent was not acting independently. The
learned Solicitor General was unable to cite any statutory provision
justifying the "suspension" of the issue of postal ballot papers even
before the impugned Regulation was
made. The respondents have not given any explanation for that suspension. It
was therefore unlawful, arbitrary and not bona
fide. They do not claim, and it is inconceivable, that it was a mere coincidence
that the 2nd to 13th respondents simultaneously decided to suspend
the issue of postal ballot papers on the eve of the impugned Regulation; and
there is no doubt that suspension was with the full knowledge and approval of
the 1st respondent. The
irresistible inference is that the respondents had foreknowledge of the
impending Proclamation and Regulation. Had that decision been made bona fide, the 1st respondent's official files and documents
would have contained the official communications, between him and
"outsiders", and between him and his officers, leading up to that
suspension, as well as his reasoned decision in respect of that suspension; and
there would have been a full and frank disclosure of all that material.
However, the respondents have failed to produce a single document relating to
that suspension, and that failure gives rise to a grave suspicion that the
decision was for a collateral purpose. That is not speculation. Clause 3 of the
Bill indicates what that collateral purpose probably was. If the issue of
postal ballot papers had taken place on 4.8.98, voters would have received
ballot papers and could have proceeded to cast their vote. If the postal voting
process had commenced in that way, substitution of candidates in the nomination
papers would have required the drastic step of cancelling ballot papers already
issued, and postal votes already cast. That would have been a serious
interference with a pending election. The suspension of the issue of postal
ballots would have facilitated the subsequent substitution of candidates
without the need to cancel any part of the voting process, and it seems
probable that was the purpose of that suspension.
That suspension
had two unsatisfactory consequences. If the postal ballot papers had been
issued, postal voting could have taken place, on and after 4.8.98, without any
fear of disruption: as postal voting did not require public polling booths and
the kind of security needed at polling booths. Consequently, if the impugned
Regulation had
ceased to be
operative as, for instance, if Parliament had refused to approve the
Proclamation, or if HE the President had revoked the Regulation the
poll could have taken place on 28.8.98. But the suspension of the postal voting
process virtually ensured that the poll would not take place on that day. The
respondents were thus indirectly and partially responsible for the failure to
take the poll on 28.8.98. Secondly, the 1st respondent had power to fix a new date, in
terms of section 22 (6), with fourteen days' notice. But as a result of the
suspension of the postal voting process, it became impossible for the 1st
respondent to fix such an early date : he had to allow additional time for the
postal voting process to commence afresh. Thus that suspension virtually
compelled the postponement of the original poll, and also placed an unnecessary
fetter on the 1st
respondent's discretion, compelling him to give at least five weeks'
notice of any new date of poll.
The 1st respondent therefore was at least partly
responsible for the failure to take the poll on 28.8.98; and was wholly
responsible for the failure promptly to fix a new date, on and after 28.8.98,
after that Regulation had spent its
force.
I must now
consider whether the conduct of the 1st respondent resulted in an infringement of the
petitioners' fundamental rights. Learned counsel urged on their behalf, first,
that there was an interference with the franchise, contrary to Article 4 (e); that although Article 4 (e) does not expressly refer to
Provincial Council elections, that was because Provincial Councils were
introduced only subsequently, by the Thirteenth Amendment; and that it must now
be interpreted as applying to Provincial Council elections as well. The learned
Solicitor General contended that by the Thirteenth Amendment Parliament
could have included Provincial Council elections, if it wished to, and that the
omission to do so was deliberate; and that in any event a violation of Article
4 (e) may not, by itself, amount to a
violation of a fundamental right. It is unnecessary to rule on this issue in
view of my findings in relation to Articles 12 (1) and 14 (1) (a).
Learned counsel
for the petitioners submitted that the right to vote is one form of
"speech and expression" which Article 14 (1) (a)
protects. The
learned Solicitor General urged, however, that there is a clear
distinction between the franchise and fundamental rights; that "the
franchise cannot be incorporated as a fundamental right as contained in Chapter
III"; and that the position is different under the American Constitution
because "specific provisions are contained therein which convert the right
to vote as a fundamental right".
When Article 14
(1) (a) entrenches the freedom of
speech and expression, it guarantees all
forms of speech and expression. One cannot define the ambit of that Article on
the basis that, according to the dictionary, "speech" means
"X", and "expression" means "Y", and therefore
"speech and expression" equals "X" plus "Y". Concepts
such as "equality before the law", "the equal protection of the
law", and "freedom of speech and expression, including
publication", occurring in a statement of constitutionally entrenched
fundamental rights, have to be broadly interpreted in the light of fundamental
principles of democracy and the Rule of Law which are the bedrock of the
Constitution.
I find it
unnecessary to refer to the various authorities cited, because in my view the
matter admits of no doubt. A Provincial Council election involves a contest
between two or more sets of candidates contesting for office. A voter had the
right to choose between such candidates, because in a democracy it is he who
must select those who are to govern or rather, to serve him. A
voter can therefore express his opinion about candidates, their past
performance in office, and their suitability for office in the future. The
verbal expression of such opinions, as, for instance, that the performance in
office of one set of candidates was so bad that they ought not to be re elected,
or that another set deserved re election whether expressed
directly to the candidates themselves, or to other voters would clearly
be
within the scope of
"speech and expression"; and there is also no doubt that "speech
and expression" can take many forms besides the verbal. But although it is
important for the average voter to be able to speak out in that way, that will
not directly bring candidates into office or throw them out of office; and he
may not be persuasive enough even to convince other voters. In contrast, the
most effective manner in which a voter may give expression to his views, with
minimum risk to
himself and his family, is by silently marking his ballot paper in the secrecy
of the polling booth. The silent and secret expression of a citizen's
preference as between one candidate and another by casting his vote is no less
an exercise of the freedom of speech and expression, than the most eloquent
speech from a political platform. To hold otherwise is to undermine the very
foundations of the Constitution. The petitioners are citizens and registered
voters, and the 1st
respondent's conduct has resulted in a grossly unjustified delay in the
exercise of their right to vote, in violation of Article 14 (1) (a).
Turning to
Article 12 (1), the petitioners' contention was that the failure to take the
poll on 28.8.98 and the failure to fix a new date resulted in a denial of
equality before the law, and of the equal protection of the law, to voters in
the five affected provinces, vis a vis
voters in other provinces. The respondents' reply was that when the impugned
Regulation came into operation the only elections that were to be held were for
those five Councils; that no other councils were involved; and that therefore
the postponement of the poll affected all the Councils which were in the same
class equally and without discrimination. They conceded that "presently,
[the] date for election has been fixed in relation to [another] province which
is not referred to in [the impugned Regulation]. This process has followed the
normal procedure in terms of the existing law".
Two distinct
issues are involved: first, whether the impugned Regulation was valid and the 1st
respondent acted properly in not taking steps to hold the elections on 28.8.98
(which I will consider later in this judgment), and second, whether the 1st respondent's conduct, in permitting the
suspension of postal voting and in failing to fix a new date, was in violation
of Article 12 (1). Even before the impugned Regulation was made, the 1st respondent acquiesced in, and probably
authorized, the suspension of the issue of postal ballot papers; that was
unlawful, arbitrary and not bona fide; that
was done with knowledge that the impugned Proclamation and Regulation would be
made the next day, and for a collateral purpose; and he thereby placed a fetter
on his discretionary power under section 22 (6). Upon the impugned Regulation
being made, the 1st
respondent had
power to act under
section 22 (6) whether that Regulation was valid or not but
failed even to consider whether he had such power, and he failed to exercise
that power even after 28.8.98 (when the Regulation had ceased to be
applicable), despite the decision and observations of this Court; and even when
it became evident that elections would take place in the North Western
province before the elections in the other five provinces, thus denying to the
voters in those five provinces the protection of the law, by his failure to
exercise, perform and discharge the powers, duties and functions reposed in him
by the Constitution and the Act, and treating them less favourably than voters
in the North Western province. Article 12 (1) has been infringed.
The 1st respondent's aforesaid conduct in violation
of Articles 12 (1) and 14 (1) (a) was
neither authorized nor justified by any legal provision falling within the
ambit of the restrictions permitted by Article 15. Article 15 (2) permits
certain restrictions on the freedom of speech only if prescribed by
"law" (not including emergency regulations), and Article 15 (7)
permits restrictions on the right to equality and the freedom of speech if
prescribed by "law" or by emergency regulations, "in the
interests of national security, public order and the protection of public
health, or for the purpose of securing due recognition and respect for the
rights and freedoms of others, or of meeting the just requirements of the
general welfare of a democratic society". The 1st respondent's conduct was not authorized by
any "law", and so Article 15 (2) was inapplicable. It was not
authorized by any emergency regulation, and so Article 15 (7) was inapplicable.
Learned counsel
for the petitioners strenuously contended that the impugned Proclamation as well
as the Regulation were ultra vires.
He urged that the Proclamation had been made for the sole purpose of postponing
elections; the fact that no other Emergency Regulation had been made pursuant
to that Proclamation proved that it had been issued only to enable that
Regulation to be made; both were part of one scheme, to postpone these five
elections; and that was confirmed by the failure of the respondents to produce
any material suggesting that the Proclamation and the Regulation had been made
for any lawful purpose, connected with considerations of national security or
public order.
In his
affidavit, the 1st respondent pleaded that the impugned Regulation
could not be questioned by virtue of the PSO. The learned Solicitor General
further submitted that since HE the President could not be made a party by
virtue of Article 35, and since the petitioners had not cited as respondents
any other persons who could answer the allegations pertaining to the vires of the impugned Proclamation and
Regulation, this Court should make no pronouncement pertaining to their
validity. In any event, he urged, the holding of elections could have affected
national security.
The making of
the Proclamation and the Regulation, as well as the conduct of the respondents
in relation to the five elections, clearly constitute "executive
action", and this Court would ordinarily have jurisdiction under Article
126. The question is whether that jurisdiction is ousted by reason of Article
35, or the failure to join necessary parties, or any relevant ouster clause.
The immunity
conferred by Article 35 is neither absolute nor perpetual. While Article 35 (1)
appears to prohibit the institution or continuation of legal proceedings
against the President, in respect of all acts
and omissions (official and private), Article 35 (3) excludes immunity in
respect of the acts therein described. It does so in two ways. First, it
completely removes immunity in respect of one category of acts (by permitting
the institution of proceedings against the President personally); and second,
it partially removes Presidential immunity in respect of another category of
acts, but requires that proceedings be instituted against the Attorney General.
What is prohibited is the institution (or continuation) of proceedings against the President. Article 35 does
not purport to prohibit the institution of proceedings against any other
person, where that is permissible under any other law. It is also relevant that
immunity endures only "while any
person holds office as President". It is a necessary consequence that
immunity ceases immediately thereafter; indeed, it would be anomalous in the
extreme if immunity for private acts were to continue. Any lingering doubt
about that is completely removed by Article 35 (2), which excludes such period
of office, when calculating whether any proceedings have been brought within
the prescriptive period. The need for such exclusion arises only because legal
proceedings can
be instituted or
continued thereafter. If immunity protected a President even out of office, it
was unnecessary to provide how prescription was to be reckoned.
I hold that
Article 35 only prohibits the institution (or continuation) of legal
proceedings against the President while in office; it imposes no bar
whatsoever on proceedings (a) against
him when he is no longer in office, and (b)
other persons at any time. That is a consequence of the very nature of
immunity: immunity is a shield for the doer, not for the act. Very different
language is used when it is intended to exclude legal proceedings which seek to
impugn the act. Article 35, therefore, neither transforms an unlawful act into
a lawful one, nor renders it one which shall not be questioned in any Court. It
does not exclude judicial review of the lawfulness or propriety of an impugned
act or omission, in appropriate proceedings against some other person who does
not enjoy immunity from suit; as, for instance, a defendant or a respondent who
relies on an act done by the President, in order to justify his own conduct. It
is for that reason that this Court has entertained and decided questions in
relation to emergency regulations made by the President (see Joseph Perera v. AG(1) Wickremabandu v. Herath,(2) and Presidential appointments (see Silva v. Bandaranayake,(3)). It is the respondents who rely on the
Proclamation and Regulation, and the review thereof by this Court is not in any
way inconsistent with the prohibition in Article 35 on the institution of
proceedings against the President.
As for the
alleged failure to join the "proper" respondents, the learned
Solicitor General submitted that the petitioners should have made
responsible officers of the "defence establishment" respondents,
because they alone could produce the necessary material on the basis of which
the Proclamation and Regulation were made; and the respondents "could
never have placed any material before Court on matters of public
security".
In fundamental
rights applications, the proper respondents (beside the Attorney General)
are those who are alleged to have infringed the petitioner's rights; not
persons who may be able to give relevant evidence. It would improper in such
applications, as in other legal
proceedings, to join
as respondents persons who are no more than witnesses. Here the petitioners'
real complaint is the failure to hold the elections on 28.8.98 and to fix a new
date in lieu; the alleged infringement was by the 1st respondent and the returning officers, and
the Supreme Court Rules did not require anyone else to be made respondents. The
Proclamation and Regulation were therefore relevant, not to the petitioners'
case, but to the respondents' defence of justification, and the burden was
therefore on them to produce evidence from the "defence establishment"
if they wished to. It would have been improper for the petitioners to join a
person as respondent for the sole purpose of forcing him to produce evidence,
however important, to support their own case even an essential witness
is not a necessary party. How then can they be under any obligation to make
someone from the "defence establishment" a respondent, in order to
compel him to produce evidence in support of the respondents?
I must mention
that the respondents' plea that they had no knowledge of the public security
aspects of the Proclamation and the Regulation confirms that when the impugned
Regulation was made the 1st
respondent did not inquire why it was made, and that he failed or
declined to fix a new date of poll despite the lack of any information
suggesting an adverse security situation. While I agree that it was
theoretically possible for the holding of elections to have affected national
security for instance, if a significant number of security personnel
had to be withdrawn from the "operational areas" in order to provide
security for the elections, that might have affected national security in those
areas yet the Inspector General of Police did not think so on
25.6.98, and the 1st
respondent did not have any material suggesting that any change had
taken place at any time thereafter.
I am therefore
of the view that neither Article 35 nor the failure to join an officer from the
"defence establishment" is a bar to this application.
However, the
question whether this Court had jurisdiction to review the Proclamation and the
Regulation did arise. It was only towards the conclusion of the oral argument
that reference was made to Article
154 J (2), which may
oust the jurisdiction of this Court in regard to the Proclamation. Without the
benefit of a full argument, I am reluctant to rule on that matter. As I am of
the view that the impugned Regulation was invalid, the application can be
disposed of without considering the vires
of the Proclamation. I must also mention that learned counsel for the
petitioners submitted that he was not challenging the Proclamation in its
entirety, but only in regard to its application to areas additional to those to
which the previous Proclamation applied. That involves a further question
whether the Proclamation was severable and on that too we did not have
the benefit of assistance from counsel.
The learned
Solicitor General relied on section 8 of the PSO, which provides that
"no emergency regulation . . . shall be called in question in any
court", as ousting the jurisdiction of the Courts to review the impugned
Regulation. Article 155 (2) imposes a Constitutional limitation on the power
to make emergency regulations: they cannot have the legal effect of overriding,
amending or suspending the operation of any provisions of the Constitution. If
section 8 ousts the jurisdiction of this Court to review emergency regulations,
then the consequence would be that even a regulation violative of the
Constitution is valid: and Article 155 (2) would be nugatory. However, if
Parliament had sought to enact similar legislation, that would have been
subject to review by this Court under Article 121. If section 8 ousts the
jurisdiction of this Court, then that which Parliament cannot do by
legislation, can nevertheless be done by an emergency regulation made in the
exercise of delegated legislative power! Article 168 (1) did not keep in force
prior enactments where the Constitution expressly provided otherwise. The
Constitution has made such express provision by entrenching several
jurisdictions of this Court (see Wickremabandu, at 361), and section 8 of the
PSO is therefore subject to such express provision. I hold that, in the
exercise of the jurisdiction of this Court under Article 126, this Court has power to review the validity of
the impugned regulation.
Article 76 (2)
permits Parliament to make, in any law relating to national security, provision
empowering the President to make emergency regulations. Article 155 deems the
PSO to be a law
enacted by
Parliament, and section 5 of the PSO authorizes the President to make emergency
regulations "as appear to him to be necessary or expedient in the
interests of public security and the preservation of public order and the
suppression of mutiny, riot and civil commotion, or for the maintenance of
supplies and services essential to the life of the community". Section 5
is thus a provision for the delegation of legislative power in a public
emergency (see Weerasinghe v. Samarasinghe)(4) and
emergency regulations are delegated legislation. An emergency regulation must
therefore be in form legislative, rather than executive or judicial; it must be
a rule, rather than an order or a decision. If it was considered necessary to
suspend the notices issued under section 22 of the Act, there should first have
been enacted a regulation (ie delegated legislation) conferring power, in
general terms, on some authority to suspend notices already issued under
section 22, and then only could there have been an exercise of that power, in
relation to particular instances. Further, such regulation could not have been
absolute and unfettered, but relevant criteria or guidelines (ie "national
security oriented" criteria) were necessary. Thereupon judicial
review would have been possible at two stages: first, whether the regulation
itself was intra vires, and second,
whether the act done was a proper exercise of power, in keeping with the
criteria or guidelines and for valid reasons. As Sharvananda, CJ. observed in
Joseph Perera's case:
"Regulation 28 violates Article 12 of the Constitution. The Article
ensures equality before the law and strikes at discriminatory State action.
Where the State exercises any power, statutory or otherwise it must not
discriminate unfairly between one person and another. If the power conferred by
any regulation on any authority of the State is vague and unconfined and no
standard or principles are laid down by the regulations to guide and control
the exercise of such power, the regulation would be violative of the equality
provision because it would permit arbitrary and capricious exercise of power
which is the antithesis of equality before law. No regulation should clothe an
official with unguided and arbitrary powers enabling him to discriminate
Yick Wo v. Hopkins. Regulation 28
confers a naked and arbitrary power on the Police to grant or refuse permission
to distribute pamphlets or posters as it pleases, in
exercise of its
absolute and uncontrolled discretion, without any guiding principle or policy
to control and regulate the exercise of such discretion. There is no mention in
the regulation of the reasons for which an application for permission may be
refused. The conferment of this arbitrary power is in violation of the
constitutional mandate of equality before the law and is void."
Sharvananda,
CJ. was dealing with an emergency regulation which purported to confer a power
on an official, and he held the regulation to be invalid because it purported
to confer a power which was vague and unconfined, and which could be exercised
arbitrarily and capriciously. Here the impugned Regulation does not purport to
confer a power (to suspend statutory notices of election under section 22 of
the Act): it does not specify the criteria for the exercise of the power; and
it purports to suspend such notices without any stated reason.
I hold that the
impugned Regulation is not a valid exercise of power under section 5 of the
PSO. It is not an emergency regulation. It has, rather, the character of an order, purporting to suspend notices
lawfully issued under the Act. There was not in force, then or later, any legal
provision which authorized the making of an order suspending such notices.
But in any
event, even treating the impugned regulation as if it had been an order made
under a valid emergency regulation, the suspension of the notices issued under
section 22 could have been sustained only if it had been for one of the
purposes set out in section 5 of the PSO. The petitioners have established, prima facie, that from 25.6.98 up to the
end of July, 1998, there was no known threat to national security, public
order, etc., which warranted the postponement of the elections. The respondents
have failed to adduce any material whatever which suggests that, in August,
1998, there was any such threat. Accordingly, the suspension of the notices by
means of the impugned Regulation was arbitrary and unreasonable. That
suspension infringed the fundamental rights of the petitioners under Articles
12 (1) and 14 (1) (a), for the
reasons already stated.
Should the 1st respondent have insisted on the poll being
held on 28.8.98? While I appreciate the difficult situation in which he was,
nevertheless it is necessary to remember that the Constitution assures him
independence, so that he may fearlessly insist on due compliance with the law
in regard to all aspects of elections even, if necessary, by
instituting appropriate legal proceedings in order to obtain judicial orders.
But the material available to this Court indicates that he made no effort to
ascertain the legal position, or to have recourse to legal remedies.
I grant the
petitioners declarations that the 1st to 13th respondents have infringed their fundamental
rights under Articles 12 (1) and 14 (1) (a) by the suspension of the issue of
postal ballots, thereby contributing to the postponement of the poll; and that
the 1st respondent has infringed their fundamental rights under
Articles 12 (1) and 14 (1) (a) by
failing to take steps to enable the taking of the poll, for the Provincial
Council elections, on 28.8.98, and by failing to fix a new date of poll.
I direct the 1st respondent to take immediate action to fix,
within two weeks from today, in respect of all five elections (a) a new date or dates, not later than
four weeks from today, for the issue of postal ballot papers, and (b) a new date or dates of poll, not
later than three months from today.
The petitioners
have not prayed for compensation. They will be entitled to costs in a sum of
Rs. 30,000 payable by the State.
G. P. S. DE SILVA, CJ. 1 agree.
GUNASEKERA, J. I agree.
Relief granted.
Respondents directed to fix new dates
for issue of postal ballot papers and poll.