SUSIRIPALA V COMMISSIONER OF ELECTIONS AND OTHERS

SUSIRIPALA V. COMMISSIONER OF ELECTIONS
AND OTHERS

COURT OF APPEAL
SRISKANDARAJAH,J.
LECAMVASAM,J.
CA 985/2007
JUNE 19, 2009

Local Government Elections - Section 28 (1A) - Amendment 24 of 1987 - Section 65 A(2) - elected youth candidate passes away - Vacancy- Nomination - Has it got to be a youth candidate? Is youth representation a criterion that should be considered at the time of nomination only?

The petitioner sought to quash the decision of the Commissioner of Elections and further sought an order to compel the respondents to declare the petitioner as an elected member of the Sabawa.

Out of the seven members elected one member passed away - the deceased member was elected as a "youth candidate" - Section 28 (1). When the vacancy had arisen, the Secretary of the party nominated the 3M respondent - and not the petitioner. The 3rdrespondent was declared elected as a member. The petitioner had obtained 1897 votes and the 3rdrespondent 1875 preferential votes.

It was contended by the respondents that as the deceased member was nominated on the basis of a "youth candidate" in the event of his demise, it is nothing but proper to nominate a person under 35 years in order to strengthen the representation of the youth.

Held

(1) The Secretary of the party has nominated the 3M respondent on the basis of youth representation, but youth representation is a criterion that should be considered at the time nomination only. Nowhere in the Act is there any reference to mandate youth representative in the final composition of a local authority .

Per Lecamwasam J.

"Youth representation is a thing that should be filled according to democratic ideals led in the instant case the vacancy should

have been filled by the person who secured the highest number of votes and not on the basis of "youth representative". If the person who has secured the highest number of preference votes fits the criteria of "youth representative" so be it".

(2) According to Section 28 1 (A) it is comprehensible that a certain percentage of youth representatives is envisaged only at the time of nominations. Once the nominations are submitted and accepted every candidate is expected to face an election.

(3) When a vacancy occurs in the office of a member, Secretary of the party to which the member of the vacant seal belonging or the returning officer shall take steps in accordance with Section 65A (2).

(4) The petitioner had obtained 1897 votes 22 votes more than the 3rd respondent. The petitioner was able to secure more preferential votes from the 3rd respondent. That was the aspiration of the people.

APPLICATION for a writ of certiorari.

Pubudu Alwis with J. Hettiatchchi and Achini Undugoda for petitioner.

Janak de Silva for 1st and 2nd respondents.

Pubudini Wickremaratne with Gaston Jayakody for 3rd and 4th  respondents.

November 10th, 2009

D. S. C. LECAMWASAM, J.

    The petitioner in this application is seeking writs of Certiorari and mandamus to quash the decision contained in government gazette dated 13th of August 2007 and to compel the second respondent to declare the petitioner as an elected member of the Harispaththuwa Peadeshiya Sabha.

    The facts set out in the petition are to the following effect. The petitioner and the third respondent, both of them on the nominations list of the United People Freedom Alliance

contested at the local government elections held on the 30th of March 2006 for Harispaththuwa Pradeshiya Sabha. Only seven members were declared elected from the United Peoples Freedom Alliance. The petitioner and the third respondent who unsuccessfully contested the election were able to secure only 1897 and 1875 preferential votes respectively, thereby the petitioner securing more preferential votes than the third respondent.

    United People Freedom Alliance is a coalition of different political parties and the petitioner is a member of the communist

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