Political jousts and ousters | Daily News

Political jousts and ousters

Supreme Court complex
Supreme Court complex

A Provincial Council member had not been made Chairman of the relevant Council even though he had won an election for the post among the membership. The administrative officer conducting the election had been adamant that he cannot declare the individual elected.

The individual went to Court asking for a writ of mandamus against that decision of the officer, the Secretary to the PC, and the writ was allowed.

The matter went into the heart of constitutional provisions against writs being issued against legislatures, be they relatively lowly provincial councils or not.

Though the writ application was allowed, the Secretary to the provincial council appealed to the Supreme Court against that decision to issue a writ. (Gamage v. Perera - SLR - 354, Vol 3 of 2006 [2005] LKSC 19; (2006) 3 Sri LR 354 (November 30, 2005).)

The following is from the record of the Supreme Court judgement on the matter:

“This is an appeal from the judgement of the Court of Appeal dated 22.02.2002. By that judgement the Court of Appeal issued a mandate in the nature of a writ of mandamus directing the 2nd respondent-appellant (hereinafter referred to as the appellant) to announce the result of the election of the petitioner-respondent (hereinafter referred to as the 1st respondent) to the post of Chairman of the 1st respondent -respondent Council (hereinafter referred to as the respondent Provincial Council). The appellant appealed against the said judgement of the Court of Appeal on which this Court granted Special Leave to Appeal”.

The appellant had refused to declare the respondent duly elected as the Chairman of the PC despite the latter winning the election, and moreover, the Appellant Secretary was getting ready to hold another poll for the same post.

There was no two words about it. The gist of the issue was whether a writ could be issued against a Provincial Council (PC) when the PC is a legislative body and the appellant was only fulfilling a mandate conferred on him by law for the proper conduct of affairs of that legislative body.

Counsel for the appellant, the Secretary to the PC, submitted that the Appeal Court had relied on certain judgements that could not be relied on as these judgements cannot be accepted. These judgements basically assert that the Supreme Court exercises unfettered jurisdiction under Article 140 of the Constitution which confers writ jurisdiction. This he submitted was despite the fact that there is an ouster Clause in the PC’s Act that clearly contains words to the effect that the acts of the Provincial Council cannot be challenged by way of writs.

The Supreme Court judgement states:

“Learned President's Counsel for the appellant submitted that the Court of Appeal had relied on the decisions in Atapattu v People’s Bank (1 Sri LR 221), Sirisena Cooray v Tissa Dias (1999 I Sri LR 1) and Wijeyapala Mendis v P. R. P. Perera (1999 2 Sri LR 110) and had made a grave error in following the said decisions. The contention of the learned President's Counsel was that the dictum in the aforementioned decisions that the jurisdiction which the Supreme Court exercises under Article 140 is unfettered, cannot be accepted. It was further contended that Section 12(2) of the Provincial Councils Act contains a preclusive clause, which prevents the Court of Appeal from issuing a writ against the appellant.

Section 12(2) of the Provincial Councils Act deals with the preclusive clause and reads as follows:

“No officer or member of a Provincial Council in whom powers are vested, by or under this Act, for regulating the procedure, or the conduct of business, or for maintaining order, in such Council shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”

The Article 80(3) of the constitution was cited by the Counsel for Appellant to assert the fact that any law that’s already made into law cannot be challenged in Court or subject to review. The logic of citing this was that the Provincial Council legislation had an ouster clause stating that no writs are applicable to the actions of PCs. If that was the case it was law that was already in operation and cannot be reviewed or challenged, submitted Counsel for the appellant.

However it was not as if the law was being challenged. It was merely a question of whether it’s operable, because there was in effect ‘higher law’ that stated to the contrary. The fact was that the Constitution grants writ jurisdiction to the Supreme Court under Article 140.

The Court was clear that there is a distinction between questioning legislation and examining whether the Court of Appeal is precluded from examining whether the Respondent’s actions are legally valid or not.

The Supreme Court judgement states:

“The appellant's contention is that, the Court of Appeal had questioned the validity of Section 12 of the Provincial Councils Act and in terms of Article 80(3) of the Constitution that the Court of Appeal could not have questioned such validity of the said provision. However, what the Court of Appeal had considered is not to question the validity of Section 12(2) of the Provincial Councils Act, but to decide whether in view of the provisions of Section 12(2), the Court of Appeal is precluded from examining the performance of the duties of the 2nd respondent, in accordance with Rule 5(6) of the Rules of Procedure of the respondent Provincial Council.”

This much was clear. Though a law cannot be reviewed and declared invalid after it has been passed, even if it’s inconsistent with the Constitution, whether such a law is applicable under certain circumstances is a different matter and that should have been obvious.

Landmark cases in administrative law were also cited:

“'The Anisminic case and its sequels were the culmination of the judicial insistence, so often emphasized in this work, that administrative agencies and tribunals must at all costs be prevented from being sole judges of the validity of their own acts. If this were allowed, to quote Denning L J. again, ‘the rule of law would be at an end' (emphasis added)’

In fact in Anisminic Lord Wilberforce expressed a similar view in different words. According to Lord Wilberforce, “What would be the purpose of defining by statute the limit of a tribunal's powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?”

The jurisdiction of the Supreme Court conferred under Article 140 of the constitution remained unfettered.

But even so would a writ lie against a PC which is a legislative body? It was decided by the Court of Appeal that what was in issue was the election proceedings of a Chairman and not the proceedings of a Provincial Council. Therefore the question of writs pertaining to ‘legislative bodies’ didn’t arise.

The appeal was dismissed and the judgement of the Court of Appeal dated 22.02.2002 was affirmed.


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