In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Presidential Elections Act 1981. Election for the Office of President holden on the Twenty Sixth day of January 2010. Sarath Fonseka, th No. 6, 37 Lane, Queen’s Road, Colombo 3. And presently detained at The Navy Headquarters, Colombo 1. - Petitioner - S.C. PRESIDENTIAL ELECTION PETITION NO. 01 / 2010 Vs. 1. Mahinda Rajapakse, “Temple Trees”, Galle Road, Colombo 3. And Medamulana, Weeraketiya. 2. Mohomed Casim Mohomed Ismail, No. 118, Soysa Watta, Welisara, Ragama. 3. Achala Ashoka Suraweera, Susiri Place, Muruthalawa. 4. Channa Janaka Sugathiri Gamage, No. 51, Piliyandala Road, Maharagama. 1 5. W.V. Mahiman Ranjith, No. 3, 34th Lane, Queen’s Road, Colombo 3. 6. Anura Liyanage, No. 7, Sumner Place, Colombo 8. 7. Sarath Manamendra, No. 50, Ketawalamulla Lane, Colombo 9. 8. M.K. Sivagilingam, Ammankoviladi, Velvetithurai. 9. Ukkubanda Wijekoon, No. 24 /6, 4th Lane, Pitakotte, Kotte. 10. Lal Perera, No. 7/9B, Sewana Mawatha, Gangabada Road, Suwarapola, Piliyandala. 11. Siritunga Jayauriya, No. 57/7, D.S. Fonseka Road, Colombo 5. 12. Wickramabahu Karunaratne No. 17, Barrack Lane, Colombo 2. 13. Idurus Mohomed Ilyas, No. 68, Masjid Road, Puttalam. 14. Wije Dias, No. 301 1 /1, Main Road, Aththidiya, Dehiwala. 2 15. Sanath Pinnaduwa, No. 240/1D, Boralugoda, Athurugiriya. 16. M.M. Mohomed Musthafa, No. 16, Ramakrishna Road, Colombo 6. 17. Battaramulla Seelarathana Thero, No. 185/B, Dewala Road, Thalangama South, Koswatta, Battaramulla 18. Senarathne De Silva, No. 5/B, Webada Road, Negombo. 19. Aruna De Soysa, “Susiri”, Nupe, Kosgoda. 20. Upali Sarath Kongahage, No. 2, Community Road, Obehena Road, Madiwela. 21. Muthubandara Theminimulla, No. 3/1, Sanghamitta Mawatha, Kandy. 22. Dayananda Dissanayake, Commissioner of Elections, Election Secretariat, Sarana Mawatha, Rajagiriya. 23. Razik Zarook P.C., 31/1, Horton Place, Colombo 7. 24. Kalinga Indatisa, 325 ½ Thimbirigasyaya Road, Colombo 5. 3 25. Hudson Samarasinghe, Chairman, Sri Lanka Broadcasting Corporation, Torrington Square, Colombo 7. 26. Wimal Weerawansa, 21/1, Asoka Mawatha, Jayanthipura, Battaramulla. - Respondents- Before J.A.N. de Silva, C.J. Dr. Bandaranayake, J. Sripavan, J. Ratnayake, J. Imam, J. Counsel : Upul Jayasuriya with Sandamal Rajapakse, Madubashana Ariyadsa & Sehan Kumarasinghe instructed by Asoka Samararatne for the Petitioner. D.S.Wijesinghe, PC with Nihal Jayamanne PC., S.S. Sahabandu PC., D.P. Mendis PC., Palitha Kumarasinghe PC, . Jayatissa de Costa PC., Upali Senaratne, Sagara Kariyawasam, M.U.M. Ali Sabry, Ms. Kaushalya Molligoda, Chamila Jalagoda & Isuru Somadasa instructed by Athula de Silva for the 1st Respondent. 4 Nihal Jayamanne PC., with W. Dayaratne PC., Chandana Liyanapatabendy, Ananda Goonathilake, Champani Padmasekara, Ajith Munasinghe, Ms. Nurani Amarasinghe, Ms. Uditha Kollure, Dilan de Silva, Ms. Mokshani Jayamanne, Shantha Herath, Premachandra Epa, Sarathchandra Liyanage instructed by Ms. Chathurika Wijesinghe for 6th Respondent. A.P. Niles with Suren Fernando for 10th Respondent. S.S. Sahabandu PC., with Dr. Jayatissa de Costa PC., Jayantha Weerasinghe PC., Sanjaya Gamage, Saman de Silva, Senarath Jayasundara, Hariguptha Rohanadeera, Saliya Mathew & Upali Samaraweera instructed by Priyantha Upali Amarasinghe for 17th Respondent. Palitha Kumarasinghe, PC., with Sunil Abeyratne, Mayura Gunawansa, Viraj Premasiri, Chinthaka Mendis & Viran Fernando instructed by Sumudu Liyanarachchi for 18th Respondent. Manohara de Silva PC., with Kuvera de Zoysa, Palitha Gamage, Ranjith Caldera, Pathmapriya Ranawaka, Rasanga Harischandra & Lalith Gunaratne instructed by Manjula Balasuriya for the 20th Respondent. Gamini Marapana, PC with Nihal Jayawardana, B. Manawadu, K. Liyanagamage, Manoj Gamage, Manjula Wellalage, A.Ariyapperuma, Tissa Gunawardena, Naveen Marapana, 5 Rohana Deshapriya instructed by Ms. A.B.D. Dharmadasa for 23rd Repondent. Kushan de Alwis with Kaushalya Nawaratne and Chamath Fernando instructed by Upendra Gunasekera for the 24th Respondent. Priyantha Jayawardana with Rasika Balasuriya, Shan Senanayake, Ms. Sumana Ariyadasa & Ms. Priyani Perera instructed by Shamika Seneviratne for 25th Respondent. S.L. Goonesekera with J.M. Wijayabandara, Lalith Abeysiriwardena, Ajith Prasanna, Ruwan Udawela & Akalanka Ukwatta instructed by Kapila Gamage for 26th Respondent. W.P.G. Dep PC. Solicitor General, with Ms. Indika Demuni de Silva, DSG., A.H.M.D. Nawaz DSG. & M. Gopallawa, SSC. Instructed by S. Pieris SA., for 22nd Respondent. Argued on : 13.09.2010, 14.09.2010 & 15.09.2010 Decided on : 29.10.2010 Written Submissions Filed on : Petitioner – 29th September 2010 st th 1 Respondent – 29 September 2010 th th 10 Respondent – 29 September 2010 th 18 Respondent – 29th September 2010 20th Respondent – 29th September 2010 22nd Respondent – 29th September 2010 24th Respondent – 29th September 2010 25th Respondent – 29th September 2010 26th Respondent – 29th September 2010 6 J.A.N. De Silva, CJ When this petition was taken up on 5th July 2010, several Counsel appearing for the 1st, 6th, 17th , 18th , 20th, 23rd, 24th and 26th Respondents informed Court that they have already filed preliminary objections to the maintainability of the petition. Learned Counsel for the petitioner was granted permission to file petitioner’s statement of objections at least one week prior to the hearing of the said preliminary objections. The Court fixed 13th, 14th, and 15th September 2010 for the hearing of the said preliminary objections. When the petition was taken up again on 13th September 2010, it was observed that no statement of objections were filed by the petitioner. Learned Counsel for the petitioner informed Court that the petitioner has only filed a motion dated 13th September 2010 together with an affidavit of Mr. Vijitha Asoka Samararatne, dated 12th September 2010 and two registered postal article receipts marked as Z1 and Z2. As no objections were filed by the petitioner to the preliminary objections raised by several Counsel for the Respondents, the Court proceeded to hear the said preliminary objections raised by the Respondents. Oral submissions were made by the Counsel in respect of the following preliminary objections: (a) The reliefs sought in the prayer to the petition are misconceived in law and cannot be granted by Court; (b) The petitioner has failed to join necessary parties as Respondents; (c) The petitioner has failed to furnish material facts in terms of Section 96(c) of the Presidential Elections Act No. 15 of 1981; and, (d) The petition does not conform to the requirements of Section 96(d) of Act No. 15 of 1981, in that, it does not set forth full particulars of any corrupt or malpractices, the petitioner has alleged. 7 Learned President’s Counsel for the 1st Respondent brought to the notice of Court that the petitioner has not sought a declaration that the election was void as provided in Section 94(a) of Act No. 15 of 1981 (hereinafter referred to as the “Act”). Section 94 of the Act provides all or any of the reliefs that could be claimed in an election petition: (a) A declaration that the election is void; (b) A declaration that the return of the person elected was undue; (c) A declaration that any candidate was duly elected and ought to have been returned; (d) Where the office of the President is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, a scrutiny. Counsel for the Petitioner and the Counsel for the 10th Respondent sought to argue that Section 91 of the Act must be read with Section 94 in order to interpret the reliefs that could be claimed by the petitioner in terms of Section 94(a). Both Counsels submitted that the Court assumed jurisdiction to declare the election of the Office of the President void by virtue of the provisions contained in Section 91. I regret that I am unable to agree with this submission. The Supreme Court derives its jurisdiction to hear a Presidential Election petition in terms of Article 130 of the Constitution and not from Section 91 of the Act. It is well settled that the language of a statute constitutes the depository or reservoir of the legislative intent and the duty of the Court is to interpret the words the legislature has used and not to travel outside on a voyage of discovery. Every word of a statute should be construed with reference to the context in which it has been enacted. The marginal note to Section 94 also gives an indication and furnishes a clue to the meaning and purpose of the 8 said Section. Thus, in my view, Section 94 is clear, unambiguous and specifies the only reliefs that may be claimed by the petitioner in an Election Petition. The petitioner cannot ask for any other reliefs other than those specified in Section 94. In this petition, the petitioner has chosen not to ask for the relief specified in Section 94(a). However, the Petitioner has asked for the following relief in paragraph (a) of the prayer to the petition, not specified in Section 94: (a) That Your Lordships’ Court be pleased to determine and declare that the election of the 1st Respondent above named void. Where the Act makes general provision in terms of Section 91 for the avoidance of election on an election petition and makes a specific provision with respect to the reliefs which may be claimed, the latter must prevail over the general provision in relation to the different reliefs that a petitioner could claim. In the case of Nanayakkara vs. Kiriella (1985) 2SLR 391, Thambiah, J. at page 411, made the following observations regarding the proceedings in an election petition. “Election Petition proceedings are purely statutory proceedings , unknown to the common law and, therefore, considerations of equity which guide Courts in dealing with matters of civil rights and their remedies will have no place in dealing with election petitions. The statutory requirements of Election Law must be strictly observed.” Considering the observations made by Thambiah, J. I am unable to agree with the Learned Counsel for the petitioner and the Learned Counsel for the 10th Respondent that the relief sought to in Section 94(a) must be read with Section 91 and a liberal interpretation be given to Section 94(a).

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