Bandiya v. Rajapahsa
1967Present: 33. N. G. Fernando, C.J., and Sirimano, J.
D. BANDIYA, Plaintiff, and R. R. W. RAJAPAKSA, DefendantAPN/GEN15/67—D. C. Colombo, 6G775/M
Election petition—Determination of Election Judge that candidate committed corruptpractice—Appeal therefrom to Supreme Court—Point of lime when the report- of theElection Judge becomes effective—Penalty for sitting or voting inParliament—Date of commencement of liability—Ceylon (Constitution) Order in Council,1946, ss. 13 (3) (ft), 14, 24—Ceylon (Parliamentary Elections) Order in Council,1946, ss. 58 (2), 82,82 C, 82 D (2).
Where, in consequence of an election petition, the election of a person as aMember of Parliament is declared void on the ground that he committed acorrupt practice, the combined effect of sections 13 and 14 of the ConstitutionOrder in Council, and of sections 58(2) and 82D 2 of the Parliamentary ElectionsOrder in Council is that he becomes disqualified from sitting of voting in Parlia-ment for a period of seven years from the date of the report of the ElectionJudge. Accordingly, Ke is not liable to pay any penalty under section 14 (b)of the Constitution Order in Council for the days upon which he sat or votedin Parliament before he becomes disqualified by reason of the report made bythe Election Judge.
A report i3 made in terms of section 82D (2) (6) of the Parliamentary ElectionsOrder in Council, only when it is transmitted to the Governor-General. The" date of the report ” for the purposes of section 82D (2) (6) means the date oftransmission, and not the date which the report may bear on its face.
In an election petition filed against the defendant, his election as a Memberof Parliament was declared void on the ground that he had committed a corruptpractice. The determination of the Election Judge was given on 6th April1966, and the report of the Judge in terms of section 82 of the ParliamentaryElections Order in Council was dated 30th May 1966. An appeal filed by thedefendant against the determination of the Election Judge was dismissed bythe Supreme Court on 26th September 1966, and the report of the ElectionJudge was transmitted to the Governor-General only thereafter.
Held, that the defendant was entitled to sit or vote in Parliament not onlyuntil 30th May 1968 but also until the date when the report of the ElectionJudge was transmitted to the Governor-General. He, therefore, incurred nopenalties under section 14 (6) of the Constitution until the latter date.
H. N. G. FERNANDO, C.J.—Bandiya t*. Rajapaksa
Revision of a decree nisi entered by the District Court, Colombo.
Nimal Senanayake, with Miss A. P. Abeyratne, for the plaintiff.
Colvin R. de Silva, with Nihal Jayawicbremu and Dhannasiri Senanayake,for the defendant.
H. L. de Silva, Crown Counsel, as amicus curiae.
Cur. adv. wit.
July 1, 1967. H. N. G. Fernando, C.J.—
The defendant to this action was elected the Member of Parliamentfor Dodangaslanda at the General Election held in March 1965. Onan Election Petition filed in respect of the election, the election of thedefendant was declared void on the ground that the defendant hadcommitted a corrupt practice.
The determination of the Election Judge was given on 6th April 1966,and the report of the Judge in terms of s. 82 of.the Ceylon ParliamentaryElections Order in Council was dated 30th May, 1966. An appealfiled by the defendant against that determination was dismissed by theSupreme Court on 26th September, 1966.
In this action, the plaintiff sued the defendant for penalties to whichthe defendant was alleged to have become liable in terms of s. 14 of theConstitution for having sat ahd voted in Parliament on 51 days. Thedefendant did not appear in answer to the summons, and after an ex partetrial the District Judge made order for the entry of a decree Nisi orderingthe defendant to pay Rs. 25,500 as penalties. On reading a newspaperreport of these matters, I called for the record and directed notice toissue on the parties to show cause why the order of the District Judgeshould not be set aside. I thought fit to take this unusual course becausethe case appeared to be of public importance for two reasons—firstlyon the question whether any penalty attaches in a case where a personhas sat and voted in Parliament before he becomes disqualified by reasonof the report of an Election Judge, and secondly because of the primafacie appearance that the action was collusive. In view, however, ofthe conclusion we have reached on the first question, it is not necessarynow to refer to the second matter.
Section 14 (1) of the Constitution reads as follows :—
(1) Any person who—
(a) having been appointed or elected a Member of the Senateor House of Representatives, but not having been, atthe time of such appointment or election, qualified tobe so appointed or elected, shall sit or vote in the Senateor House of Representatives, or
—H Mil (8/07)
H. N. G. FERNANDO, C.J.—Bandiya v. Bojopaksa
(6) shall sit or vote in the Senate or House of Representativesafter his seat therein has become vacant or he has becomedisqualified from sitting or voting therein, knowing, orhaving reasonable grounds for knowing, that he was sodisqualified, or that his seat has become vacant, as thecase may be, shall be liable to a penalty of five hundredrupees for every day upon which he so sits or votes.
Paragraph (a) of the sub-section applies only in a case where a personis not, at the time of his election, qualified for such election. Thatparagraph has no application in the present case, for there is no allegationthat the defendant was not fully qualified on 22nd March 1965, the dateof the Parliamentary General Election, to be elected a Member ofParliament.
Paragraph (6) of the sub-section applies when a person sits or votes inParliament “ after his seat has become vacant, or after he has becomedisqualified ”. Crown Counsel has pointed out that there appears to besome doubt whether, in terms of this paragraph, the seat of the defendantbecame vacant by reason of the determination of the Election Judge.Section 24 of the Constitution, unlike s. 15 of the Ceylon (State Council)Order in Council, does not provide that a seat becomes vacant when theelection of a member is declared void on an Election Petition. But forpresent purposes it suffices to consider whether the defendant did sitor vote in Parliament after he had become disqualified from sitting or votingtherein.
Section 13 of the Constitution is the provision which defines thecircumstances which disqualify a person from sitting or voting inParliament, and the circumstances relevant in the present case are setout in paragraph (h) of sub-section (3) of s. 13 :—
“ if by reason of his conviction for a corrupt or illegal practice or byreason of the report of an Election Judge in accordance with the lawfor the time being in force relating to the election of Senators or Membersof Parliament, he is incapable of being registered as an elector or of-being elected or appointed as a Senator or Member, as the case may be
The particular ground of disqualification applicable in the case of the
defendant is that “ by reason of the report of an Election Judge
he is incapable of being registered as an elector or of being elected
as a Member of Parliament ”. The incapacity here mentioned is thatwhich is declared by s. 82D (2) of the Parliamentary Elections Order inCouncil 1946 :—
“ (a) The Governor-General shall, upon receipt of the report of theElection Judge or of the Supreme Court transmitted to himunder section 82 C, cause a copy of the report to be published inthe Gazette.
H. N. G. FERNANDO, C.J.—Bandiya v. Rajapaksa
(6) (i) Where the report referred to in paragraph (a) is to the effectthat a corrupt or illegal practice has been committed by anyperson, that person shall be subject to the same incapacities asif at the date of the said report he had been convicted of thatpractice.
(ii) Where the report referred to in paragraph (o) is to the effectthat such corrupt or illegal practice was committed with theknowledge and consent of a person who was a candidate at anelection or by his agent, that person shall be subject to thesame incapacities as aforesaid.
The paragraph (6) just cited equates the report of the commissionof a corrupt practice to a conviction of a corrupt practice. The effect ofsuch a conviction is declared by s. 58 (2) of the Parliamentary ElectionsOrder in Council:—
“ Every person who is convicted of a corrupt practice shall, byconviction, become incapable for a period of seven years from the dateof his conviction of being registered as an elector or of voting at anyelection under this Order or of being elected or appointed as a Senatoror Member of Parliament, and if at that date he has been elected orappointed as a Senator or Member of Parliament, his election orappointment shall be vacated from tho date of such conviction.”
The combined effect of sections 13 and 14 of the Constitution, and ofsections 58 (2) and 82D (2) of the Parliamentary Elections Order in Council,in the present case, is that the defendant became disqualified from sittingor voting in Parliament for a period of seven years from the date of thereport of the Election Judge.
The report of the Election Judge in the instant case bears the date 30thMay, 1966. So it is quite certain that the defendant was free and indeedentitled to sit and vote in Parliament at least until that date. It wasthat certainty which prompted me to exercise in this case the power ofintervention conferred on the Supreme Court to correct apparent errorsof Courts of first instance. Counsel are now all agreed that, of the 51occasions on which the defendant did sit or vote in Parliament, 40 ormore were occasions prior to 30th May, 1966, and that the defendantincurred no penalties for sitting or voting before that date.
There remains for consideration the question whether any penaltyattached because the defendant sat on some 8 or 9 occasions after 30thMay, 1966, the last such occasion being (according to the evidence) 16thAugust, 1966. This question depends on the construction which must beplaced on the expression “ at the date of the report ” in s. 82D (2) (b) ofthe Parliamentary Elections Order in Council. Crown Counsel has putforward the argument that this expression must be given its plain meaning,and that the date which the report bears on its face is “ the date of thereport ”. If so, the defendant is liable to penalties for sitting or votingafter 30th May, 1966.
H. N. G. FERNANDO, C.J.—Bandiya v. Rajapaksa
Section 82D is a new provision which was inserted in the Order inCouncil as one of the series of amendments designed to allow an appealon a question of law to be preferred to the Supreme Court against thedetermination of an Election Judge. Prior to these amendments therewas no possibility of such an appeal. When, therefore, an ElectionJudge found that a corrupt practice had been committed at a particularelection, s. 82 of the Order-in-Council (in its original form) required theJudge “ to report in writing to the Governor-General ” whether or not acorrupt practice had been committed. In such a context the questionwhether the report, and the incapacities arising therefrom, took effectwhen the report was signed by the Judge or else only when it was receivedby the Governor-General, was not material. A candidate who would bedisqualified because of the report would have known, no sooner thedetermination of the Election Judge was given, whether or not therewould be a report against him, and thus whether or not he would beentitled to continue to sit in Parliament.
But the question as to the time when the report of an Election Judgebecomes effective is of vital importance under the amended provisionsof the Order-in-Council which conferred a right of appeal from thedetermination of the Election Judge.
One amendment made in this connection (in s. 82) is that the sectionnow provides, not that the Judge shall report to the Governor-General,but that he shall “ make a report under his hand ” and that this reportmust be kept in the custody of the Registrar of the Supreme Courtpending an appeal. Then there is an entirely new provision in s. 82Chaving this effect:—
If there is no appeal within the appealable period of one month the
Supreme Court is required to transmit to the Governor-Generalthe report of the Election Judge at the end of that period ;
If the determination of the Election Judge is confirmed in appeal,
the Court must transmit the report of the Election Judgeto the Governor-General after the appeal is decided ;
If the determination of the Election Judge is reversed in appeal,
the Supreme Court will then transmit the report of the ElectionJudge if that report is not affected by the decision in appeal,and the Supreme Court itself may make a report as to thecommission of a corrupt practice if the Court considers itnecessary.
H. N. O. FERNANDO, C.J.—Bandiya v. Rajapaksa
What is just stated in paragraph (c) above shows that the report madeby an Election Judge can become ineffective, and will then not betransmitted to the Governor-General, in the event of the determination ofthe Election Judge being reversed in appeal. There is here a clearindication that the mere signing of a report by an Election Judge willnot disqualify a member from sitting or voting in Parliament, and thatthe report can become a dead letter if the determination is reversed inappeal.
What is stated in paragraph (a) above shows that even in a case inwhich the report of the Election Judge must be transmitted to theGovernor-General, it will not be transmitted until the appealable timeexpires.
The progress of the report, from the Judge making it, to the Governor-General who will or may ultimately receive it, is thus arrested by therequirement that it be kept in the custody of the Supreme Court. Itmight appear, prima facie, that an instrument signed by a Judge mustbe regarded as having been made on the date of signature. But where aJudge has to report a matter to the Governor-General, it is at leastequally reasonable to regard the date of the transmission of the reportto the Governor-General as being “ the date of the report ”. If A hasto report a matter to B, the matter can fairly be said to be reported to Bonly when B receives the report. This construction avoids the possibilitythat penal consequences flow from a report during a period when it is yetuncertain whether or not it will ultimately be transmitted to the Governor-General. The construction also avoids the manifest inconsistency that,by reason of the report of an Election Judge, a Member might be disquali-fied during the period when an appeal is pending, but might yet cease tobe disqualified when the appeal is decided.
I would hold accordingly that a report is made, in terms of S. -82D (2) (b),only when it is transmitted to the Governor-General, and that the “ dateof the report ” for the purposes of that section means the date oftransmission, and not the date which the report may bear on its face.
In the present case, the defendant’s appeal was dismissed by theSupreme Court on 26th September, 1966; and the report of the ElectionJudge was transmitted to the Governor-General only thereafter. Thedefendant became disqualified only on or after 26th September, 1966.There being no evidence that the defendant sat or voted in Parliamentafter that date, he did not become liable to any penalty under s. 14 of theConstitution.
In exercise of the powers of revision of this Court, the decree nisientered by the District Judge is set aside, and the plaintiff’s action isdismissed.
Sirimane, J.—I agree.
Decree nisi set aside.
B. D. BANDIYA, Plaintiff, and R. R. W. RAJAPAKSA, Defendant