In the Seychelles Court of Appeal-PDM v/s Electoral Commission |19 December 2011
In view of the considerable Constitutional importance of the above mentioned case and the various legal issues involved, Seychelles Nation has decided to publish in their entirety the judgements made by the justices of Appeal Anthony Fernando and Matilda Twomey.
The President of the Court of Appeal, Francis MacGregor, is in agreement with both judgments.
On account of their lengths, we publish today the judgement of Justice Fernando. That of Justice Twomey will follow in a future issue.
Popular Democratic Movement
(herein represented by its Leader, Mr. David APPELLANT Pierre)
VERSUS
Electoral Commission
(herein represented by its Chairperson, Mr. Hendrick Gappy) 1ST RESPONDENT
Attorney General 2nd RESPONDENT
(of National House, Mont Fleuri)
SCA NO 49 of 2011
Before: MacGregor,President; Fernando; Twomey; JJA
Mr. B Hoareau, for the Appellant
Mr. F. Ally, for the 1st Respondent
Mr. R.J. Govinden, Hon. Attorney General
Date of Hearing: 28th November 2011
Date of Judgment: 9th December 2011
JUDGMENT
A.F.T. Fernando J.A.
1. This is a appeal against the majority judgment of the Constitutional Court, namely the judgments of the Learned Chief Justice Egonda Ntende and Gaswaga J, dismissing an application by the Appellant to the Constitutional Court wherein he prayed:
i. “To declare that the declaration of the 1st Respondent, made through its Chairperson, Mr Hendrick Gappy has contravened Article 78(b) of the Constitution along with paragraph 2 of schedule 4 of the Constitution or alternatively paragraph 2 of schedule 4 of the Constitution, and that the contravention has affected the interest of the Petitioner;
ii. To issue a writ of mandatory injunction ordering the Respondent to make fresh declaration and decision, regarding the number of proportionately elected members that may be nominated as per the results of the general elections, on the basis that votes cast, are votes validly cast;
iii. Make any other order this Honourable Court considers appropriate”
2. I wish to state at the very outset that this case has been politicized to a very great extent in view of the political background of the Leader of the Popular Democratic Movement (PDM), the early dissolution of the National Assembly, the manner of its dissolution, the sudden emergence of the PDM in the political arena and the call by the Seychelles National Party, the New Democratic Party and other politicians to the people of Seychelles to stay away from voting at the last general election. None of these factors can change the Constitution or the electoral process set out therein. In Scott V Sandford 19 How 393 (US), 15 L Ed 691, it was held that “Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action, and therefore, the courts should never allow a change in public sentiment to influence them in giving a construction to a written Constitution not warranted by the intention of its founder.” I am guided by these sentiments expressed in arriving at a decision in this case.
3. A general election was held from the 29th of September 2011 to the 1st of October 2011, during which the Petitioner and Parti Lepep nominated candidates in each of the 25 electorates. The results of the general election were announced in the early hours of the 2nd of October 2011, by the 1st Respondent, through its Chairperson Mr. Hendrick Gappy, pursuant to section 38(3)(a) of the Elections Act, Cap 68A read with Schedule 4 of the Constitution, wherein the Chairperson declared that the Petitioner was not entitled to nominate any proportionately elected member to the National Assembly as it had polled only 7.4% of the total votes (Total votes cast 51,592), including votes which had been rejected (Rejected votes 16,447), whilst Parti Lepep which had polled 60.3% of the total votes was entitled to nominate 6 proportionately elected members. It is this declaration which gave rise to the application that was made to the Constitutional Court.
4. The Petitioner at paragraph 9 of his Petition before the Constitutional Court in particularizing the contravention of the Constitution and of the manner its interest has been affected has averred:
(i) “In terms of paragraph 2 of schedule 4 of the constitution, read with Article 113 of the constitution along with the provisions of the Election Act, the term ‘votes cast’ mean valid votes cast, but not the total number of ballot papers cast;
(ii) When the total number of votes polled by the candidates of the Petitioner, namely 3828 votes is calculated in respect of the total valid votes in the general election, namely 35145 votes, the Petitioner clearly polled 10.89 percent of the votes cast and hence the Petitioner is entitled to nominate one proportionately elected member, of the National Assembly;
(iii) As a result of the declaration of the 1st Respondent as set out above at paragraph 8, the Petitioner has been deprived of its constitutional right to nominate a proportionately elected member of the National assembly and thus of the opportunity and right to participate in the National Assembly.”
5. The appellant has filed the following grounds of appeal:
i. The learned Egonda Ntende CJ and Gaswaga J, erred in law in holding that the Constitution is a complete code and is self contained, and as such there is no necessity to refer to the Election Act for the definition of the term “votes cast” as set out at paragraph 2 of the fourth schedule of the Constitution.
ii. The learned Egonda Ntende C.J. and Gaswaga J, erred in law in holding that the provisions of the Election Act does not apply in respect of the nomination of proportionately elected members of the National Assembly, but rather applies only to the election of the President and directly elected members of the National Assembly.
iii. The learned Egonda Ntende C.J. and Gaswaga J, erred in law in referring to the former provision of schedule 4 of the Constitution, in that there was no necessity to do so in view that the term “votes cast” when considers in the light of the Election Act is unambiguous and clear.
iv. The learned Egonda Ntende C.J. and Gaswaga J, erred in law in failing to attach sufficient weight to the fact that the fourth Amendment to the Constitution (by Act 14 of 1996) changed the entire formula of schedule 4 regarding the entitlement of political parties to nominate proportionately elected members, rather than a simple amendment of deletion of the word “valid” from the provision of the said Schedule.
v. The learned Egonda Ntende C.J. and Gaswaga J, erred in law in failing to attach sufficient weight to the object of the bill and to the deliberation of National Assembly of the 9th of July 1996, to the effect that the intention of the amendment was merely to reduce the maximum number of proportionately elected members from 11 to 10.
vi. The learned Egonda Ntende C.J. and Gaswaga J, erred in law in failing to attach sufficient weight to the fact that at the time of the fourth amendment to the Constitution, the Election Act was in force since 1995 and the term “valid” in schedule 4 was mere surplusage in view of the provisions of the Election Act;
vii. The learned Egonda Ntende C.J. and Gaswaga J, erred on the facts in holding that in the past elections the Electoral Commissioner had always calculated the number of proportionately elected members a political party was entitled to nominate on the total votes cast.
6. The Appellant has prayed for from this Court, the same relief as prayed for in his Petition before the Constitutional Court and as set out at paragraph 1 above.
7. Both Respondents admit the number of votes polled (3828) by the Petitioner and the percentage of those votes vis-à-vis in relation to the total votes cast (7.4%) and valid votes cast (10.89%) at the election. The dispute is only in relation to whether it is the total votes cast (51,592) including votes which had been rejected (Rejected votes 16,447); OR the valid votes cast (35,145) that has to be considered in relation to the determination of the number of proportionately elected members a political party may nominate. This calls for an examination and interpretation of article 78 and paragraph 2 of Schedule 4 of the Constitution, bearing in mind that paragraph 8(b) of Schedule 2 of the Constitution requires that for the purposes of interpretation the Constitution shall be read as a whole. In Old Wayne Assn V Mc-Donough 51 L Ed 345, Downes V Bidwell 182 US 244, 45 L Ed 1088, Myers V United States 271 US 5271 L Ed 60 it was held “The Constitution must be considered as a whole, and so as to give effect, as far as possible, to all its provisions. It is an established canon of constitutional construction that not one provision of the Constitution is to be separated from all others, and considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument.”
Article 78 of the Constitution states:
“The National Assembly shall consist of –
(a) Such number of members directly elected in accordance with –
(i) this Constitution; and
(ii) subject to this Constitution, an Act,
as is equal to the number of electoral areas;
(b) not more than 10 members elected on the basis of the scheme of proportional representation specified in Schedule 4.”
Paragraph 2 of Schedule 4 states:
“A political party which has nominated one or more candidates in a general election and has polled in respect of the candidates in aggregate 10% or more of the votes cast at the election may nominate a proportionately elected member for each 10% of the votes polled.”
8. In the Preamble to the Constitution the people of Seychelles, considering that all powers of Government spring from the will of the people, have, in exercising their natural and inalienable right to a framework of government which shall secure for themselves and posterity the blessings of truth, liberty, fraternity, equality of opportunity, justice, peace, stability and prosperity; have solemnly declared their unswaying commitment, during the Third Republic, to develop a democratic system. The preamble of the Constitution is part of the Constitution. It is the basic structure of the Constitution and therefore serves as a key to understanding thereof. It derives source of power from ‘We, the People of Seychelles’.
The Preamble was enacted and adopted by the same procedure as the rest of the Constitution and expresses in a few words the philosophy of the Constitution. In the case of Kesavananda Bharati V State of Kerala AIR 1973 SC 1461 it was held that “the preamble of the Constitution was part of the Constitution.” In Charan Lal Sahu V Union of India AIR 1990 SC 1480 and J.
M. Puthuparambil V Kerala Water Authority AIR 1990 SC 2228 it was held that “The recognition of the preamble as an integral part of the Constitution makes the preamble a valuable aid in the construction of the provisions of the Constitution because unlike the preamble to an Act, the preamble of the Constitution occupies the same position as other enacting words or provisions of the Constitution.”
9. In order to translate the aspirations of the people of Seychelles into a reality the Constitution has in article 24, enshrined and entrenched the right of every citizen of Seychelles who has attained the age of eighteen years to take part in the conduct of public affairs either directly or through freely chosen representatives and to be registered as a voter for the purpose of and to vote by secret ballot at public elections which shall be by universal and equal suffrage.
10. The Constitution has provided in article 113 that:
“A citizen of Seychelles who is registered as voter in an electoral area, shall be entitled to vote in accordance with law, in the electoral area –
(a) at an election of the office of the President;
(b) at an election of the members of the National Assembly; or
(c) in a referendum held under this Constitution,”
unless disqualified to vote under the Constitution or the law.”
11. The Constitution has also placed an obligation in article 40 on every citizen of Seychelles to uphold and defend the Constitution and the law; to further the national interest; and generally, to strive towards the fulfillment of the aspirations contained in the Preamble of this Constitution.
12. To develop a democratic system and to ensure that all powers of Government spring from the will of the people, the Constitution sets out a specified democratic process, namely participation in the electoral process through their freely chosen representatives . It sets out in detail at articles 78 and paragraph 2 of Schedule 4 of the Constitution, as referred to at paragraph 6 above, how the National Assembly must be composed of.
13. The purpose of article 78 read in line with article 112 (2) under which 25 electoral areas have been created, is to ensure that there is maximum representation in the National Assembly, namely 35 members, as far as possible, who shall be the freely chosen representatives of the citizens of Seychelles. This is borne out by the words, “The National Assembly shall consist of”.
14. Article 1 of the Constitution states: “Seychelles is a sovereign democratic Republic.” In explaining the word ‘democratic’ which appears in the Constitution and which describes India as a ‘Sovereign Socialist Secular Democratic Republic’ it was held in the case of R.C. Poudyal V Union of India AIR 1993 SC 1804 “It is democratic because the Constitution ensures the creation and existence of the government at the will of the people through their participation in the formation of the government at regular intervals on the principle of universal adult franchise.”
15. The above provisions make clear the type of representative democracy that is envisaged for the people of Seychelles by the Constitution and the people of Seychelles cannot therefore move out of this constitutional framework in expressing their will. To do so will amount to a breach of their fundamental duty to defend the Constitution and, to strive towards the fulfillment of the aspirations contained in the Preamble of this Constitution and make a mockery of articles 1, 24 and 113 of the Constitution.
16. Within this backdrop I wish to consider the question whether a Seychellois citizen’s right to vote includes his right not to vote or spoil his vote? No doubt as a general proposition one’s right to vote undoubtedly includes his right not to vote or spoil his vote but to equate that right to his constitutional right “to take part in the conduct of public affairs” or to treat that as an exercise of one’s “individual rights and freedoms with due regard to the rights and freedoms of others and the common interest” or to equate that to his constitutional duty “to uphold and defend the Constitution and the law; to further the national interest; and generally, to strive towards the fulfillment of the aspirations contained in the Preamble of this Constitution”, namely to “develop a democratic system”; is farfetched. The rights set out in articles 24 and 113 taken in conjunction with the duties of a citizen as set out in article 40 of the Constitution places an obligation on a citizen to cast a valid vote at any election or referendum.
17. It is inconceivable to think that the drafters of the Constitution expected of the citizens to stay away from voting, to spoil their votes deliberately or to vote incorrectly as a fundamental right and further more to give validity to such actions. Article 24 (b) of the Constitution states that the right to vote may be regulated by a law necessary in a democratic society. According to article 113 of the Constitution a citizen’s right to vote shall be in accordance with law. The law, enacted, making provision for any matter, not otherwise provided for in the Constitution, which is necessary or required to ensure a true, fair and effective election of members of the National Assembly is the Elections Act (Cap 68A). Section 25 of the Elections Act specifies the procedure for voting. According to section 25(1) (c) a person wishing to vote at the polling station shall record the vote in the manner explained in the notices referred to in section 21(1) (c) and by the Electoral Officer. Section 21(1) (c) states that “A polling station shall be furnished with notices both inside and outside the station, containing instructions relating to the voting to be followed at the election.” In view of the duty cast on a citizen under article 40(a) of the Constitution to uphold and defend the Constitution and the law, voting at an election to be valid, shall be in accordance with the procedure set out in section 25 (1)(c). In the case of Bappoo V Bhugaloo, The Mauritius Reports 1978, p 108, it was said: “While it is true that effect should be given to the intention of the voter if it can be so ascertained from the marking on the ballot paper, the voter must comply with certain discipline, at least such as is necessary to regulate the holding of an election according to the expressed requirement of the law. The moment the voter adopts a method of voting which conflicts with the orderly arrangement of election, his licence to express his vote as he chooses ends….”
18. Staying away from voting or spoiling one’s vote is not the constitutional formula to show one’s protest to the electoral process, although certainly a right of any citizen and a factor that certainly should not be ignored by any Government that comes into power. This is similar to one’s right to freedom of thought and religion, freedom to hold opinions and freedom of peaceful assembly and association but to expect from the exercise of those rights, that others should conform to your views, would amount to belittling of the rights of others enshrined in the Constitution. Another way of looking at this would be to examine the right of access to Court of a person who has a grievance. It is abundantly clear that such a person should conform to the time limits and the procedure set out for litigation, if he is to be entitled to a hearing. He loses his right on his failure to comply with the time limits and the procedure set out for litigation. Therefore in determining the membership of the National Assembly whether ‘directly elected’ or ‘proportionately elected’ it is only the wishes of those who decided to cast their votes correctly in favour of a candidate as expected of all Seychellois citizens, that needs to be considered and not those who sought to deliberately spoil the vote or vote incorrectly.
19. To determine otherwise will cause a further anomaly, namely there will be two different yardsticks to determine ‘directly elected’ and ‘proportionately elected’ members. That is ‘directly elected’ members would be determined on the basis of the valid votes cast and the ‘proportionately elected’ members would be determined on the basis of the total votes cast. I find it difficult to conceive that this is what was envisaged by the drafters of the Constitution. Further to decide that ‘proportionately elected’ members are determined on the basis of the total votes cast, would amount to deprivation of the rights of those who cast valid votes at the election in having the maximum number of their freely chosen representatives in the National Assembly. This will amount to a violation of their enshrined and entrenched right under article 24 (1) (a) of the Constitution.
20. There is no legal provision either in the Constitution or in any other law by which to assume that a spoilt vote that is rejected has any status in determining the will of the people to develop a democratic system or to be counted in the determination of the number of proportionately elected members. Undoubtedly the political realities of the times and the voices of the people, who decide to stay away from voting or deliberately spoil the vote, should have the consideration of anyone interested in the democratic process but to give effect to them in the selection of the members of the National Assembly, they should be in accordance to the constitutional framework. One cannot ignore the fact that the two parties which contested the general election had received 67.7% of the total votes (both valid and rejected) cast, which indicates that a majority of those who voted exercised their right to vote, with the intention of choosing their representatives to the National Assembly and to have maximum representation of their representatives in the National Assembly as envisaged by article 78 of the Constitution.
21. A democratic Constitution cannot be interpreted in a narrow and pedantic (in the sense of strictly literal) sense. Constitutional provision is to be interpreted in the light of the basic structure of the Constitution. The Constitution makes provision for an electoral process whereby every citizen may take part in the conduct of public affairs either directly or through freely chosen representatives. Therefore any constitutional interpretation which subverts or goes against the democratic process is anti-constitutional. It was held in case of Prof Manubhai D Shah V Life Insurance Corp (1981) 22 Guj LR 206 and Fatechand Himatalal V State of Maharashtra (1977) MP LJ 261 (SC) that “It is the basic and cardinal principle of interpretation of a democratic Constitution that it is interpreted to foster, develop and enrich democratic institutions. To interpret a democratic Constitution so as to squeeze the democratic institutions of their life is to deny to the people or a section thereof the full benefit of the institutions which they have established for their benefit.” The function of a Constitution is to establish the framework and general principles of Government, and hence, merely technical rules of construction of statutes are not to be applied so as to defeat the principles of the government, or the objects of its establishment.
22. In State of West Bengal V Anwar Ali Sakar (1952) SCR 284 Bose J stated “The true content of the words is not to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical formulae which have their essence in mere form.” In HH Maharajadhiraja Mahadav Rao V Union of India (1971) SCC 85 it was held “ It is the duty of the court to determine in what particular meaning and particular shade of meaning the word or expression was used by the constitution makers. Moreover, in discharging that duty, the court will take into account the context in which it occurs, the object to serve which it was used, its collocation, the general incongruity with the concept or object it was intended to articulate and a host of other considerations. Above all, the court will avoid repugnancy with accepted norms of justice and reason.”
23. In view of what has been stated above I have arrived at the following conclusions:
24. Ground (i) of appeal has been based on the finding made by the Learned Gaswaga J to the effect that “……..when interpreting the Constitution ……especially a provision like Schedule 4 which is a code on its own, or if I may say, self contained,……..distinctly and exhaustively outlined one need not trouble themselves to go elsewhere, outside the Constitution to seek assistance or invoke provisions of an inferior legislation, even if they are enabling laws like the Elections Act, Cap 68A……..where the superior law can stand and speak on its own on a given matter, such reinforcement would be irrelevant and of no consequence, if not, a total surplusage; ”, and the views expressed by the Learned Chief Justice in similar terms. I have no difficulty in agreeing with the views expressed by the learned CJ and Gaswaga J that Schedule 4 is a code on its own, self contained distinctly and exhaustively outlined and that “one need not trouble themselves to go elsewhere, outside the Constitution to seek assistance”; but in a difficulty to understand why the learned Justices, having said that, decided to go elsewhere, outside the Constitution to seek assistance by relying on paragraph 3 of Schedule 4 which was repealed by the 4th amendment to the Constitution, namely, Act No. 14 of 1996, in order to interpret paragraph 2 of Schedule 4 as one presently find in the Constitution, which is the 3rd ground of appeal. The words “votes cast” in paragraph 2 of Schedule 4 on a reading of the Constitution as a whole especially the provisions in the Preamble, articles 1, 24(1)(a), 40(a)(f), 78 and 113 are unambiguous and clear and one need not look into the repealed provision to understand its meaning. I am therefore of the view that although there was no necessity to refer to the Election Act for the definition of the term “votes cast” as set out at paragraph 2 of the 4th schedule of the Constitution, doing so will not in any way affect the meaning that can otherwise be attributed to them on a reading of the Constitution as a whole. It would only support it.
25. Ground (ii) of appeal is based on Gaswaga J’s finding that “the Elections Act Cap 68A does not apply to proportionately elected members otherwise the constitution would have expressly said so.” According to him article 78(a) “outlines the law applicable to the process of directly elected members of the National assembly as the Constitution and the Act.” The learned CJ had also expressed himself in similar terms when he said: “One need not go for assistance to another law dealing only with the election of the President and directly elected members of the National Assembly.” In saying this, the learned justices have ignored the provisions of section 79(8) which states: “A law may provide for any matter, not otherwise provided for in this Constitution, which is necessary or required to ensure a true, fair and ‘effective election’ of members of the National Assembly” (Emphasis by me). This in my view and as stated earlier is to ensure maximum representation as possible in the National Assembly. I am of the view that the Elections Act applies, as the number of proportionately elected members is determined on the basis of the results of an effective general election, namely the aggregate number of votes polled by a political party that nominated candidates at the election. It is also worth noting that our Constitution makes reference to proportionately elected members rather than proportionately nominated members (Emphasis is by me) as one finds in other constitutions and election laws. I therefore hold with the Appellant on ground (ii).
26. Grounds (iii, iv and v) of appeal are all based on the reliance of the learned Chief Justice and Gaswaga J on the provision of the Constitution that was repealed by the 4th Amendment in interpreting the words ‘votes cast’ in paragraph 2 of Schedule 4. According to Gaswaga J the 4th amendment to the Constitution “specifically omitted the words ‘total valid votes cast’ and instead replaced the said words with ‘votes cast’. The words must be carrying different meaning and their application to the electoral process obviously produces different results.” The learned Chief Justice had also expressed himself in similar terms. What is to be noted is that the 4th Amendment to the Constitution not only decreased the total number of proportionately elected members from 11 to 10 and increased the percentage of the aggregate number of votes a political party had to poll before they could become entitled to nominate a proportionately elected member to the National Assembly from 8% to 10% but changed the entire formula as correctly stated by the Appellant of the process of selecting proportionately elected members. Learned Gaswaga J on a reading of the objects and reasons in the bill pertaining to the 4th amendment as well as the Assembly’s debate on the 4th amendment to the Constitution as reported in the Hansard, has stated that they reveal the intention behind the amendment and appears to find support for his conclusion that the words ‘votes cast’ in paragraph 2 of Schedule 4 mean the ‘total votes cast’ and not the ‘valid votes cast’. The “Objects and Reasons’ in the 4th amendment bill merely state; “The Bill seeks to limit the number of proportionately elected members of the National Assembly to 10. In this connection Schedule 4 is sought to be amended to provide that only a political party which has nominated one or more candidates in a general election and which has polled a total of not less than 10% of the votes at the election qualifies to nominate proportionately elected members to the Assembly.” There is nothing in the said “Objects and Reasons’ or in the Assembly’s debate as reported in the Hansard, that is helpful to interpret the words “votes cast at the election” in paragraph 2 of Schedule 4 of the Constitution. The general principle is that when an Act or clause therein is repealed it must be considered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act or the repealed provision completely from the record as if it had never been passed; it never existed except for the purpose of those actions which were commenced and concluded while it was an existing law. Therefore the learned Chief Justice and Gaswaga J were in error in relying on the repealed provision of Schedule 4 to interpret the words ‘votes cast’ in paragraph 2 of Schedule 4 of the Constitution and more so because there is nothing in the “Objects and Reasons’ of the Amendment Bill or in the Assembly’s debate as reported in the Hansard which indicates that a change was been made to the meaning to be attributed to the words ‘votes cast’. I therefore hold with the Appellant on grounds (iii), (iv) and (v).
27. Ground (vi) of appeal is to the effect that that at the time of the fourth amendment to the Constitution, the Elections Act was in force and the term “valid” in the repealed provision of schedule 4 was mere surplusage in view of the provisions of the Election Act and that the learned Chief Justice and Gaswaga J had failed to attach sufficient weight to that fact. I am of the view that the term ‘valid’ in relation to a votes cast at a Presidential or National Assembly election or Referendum has always been mere surplusage in view of our constitutional framework and does not become surplusage only in view of the provisions of the Elections Act.
28. Ground (vii) is misconceived as learned Gaswaga J did not err on the facts in stating what he did state. It is also clear that learned Gaswaga J had not in any way been influenced in arriving at his decision based on the 1st Respondent’s interpretation of paragraph 2 of Schedule 4 of the Constitution for he had clearly stated: “Further, even if it had come to the notice of the Court at this point in time that in the previous elections the 1st Respondent had applied the said Constitutional provisions wrongly to the electoral process, that in itself would not have in any way affected the decision or outcome of this petition. Two wrongs cannot make a right.” I am therefore of the view that there is no merit in ground (vii) of appeal.
29. I therefore on the basis of what is set out in paragraphs 24 to 26 above, reverse the decisions of the learned Chief Justice and Gaswaga J and allow the appeal and declare that the declaration of the 1st Respondent through its Chairperson Mr. Hendrick Gappy made in the early hours of the 2nd of October 2011 after the general election that was held from the 29th of September 2011 to the 1st of October 2011, that the Petitioner was not entitled to nominate any proportionately elected member to the National Assembly has contravened paragraph 2 of Schedule 4 of the Constitution.
30. I also issue a writ of Mandamus ordering the 1st Respondent to make a fresh determination and declaration regarding the number of proportionately elected members the two political parties that contested at the general election of 2011, may nominate on the basis that the term ‘votes cast’ referred to in paragraph 2 of Schedule 4 of the Constitution means only the ‘valid votes’ cast.
A.F. T. Fernando
Justice of Appeal