A. W. A. K. PEIRIS and another, Petitioners, and K. D. D. PERERA, Respondent

102-NLR-NLR-V-71-A.-W.-A.-K.-PEIRIS-and-another-Petitioners-and-K.-D.-D.-PERERA-Respondent.pdf


Petris v. K. D. D. Perera
481
/
1968Present: Alles, J.•i
A. W. A. K. PEIRIS and another, Petitioners, and
K.D. D. PERERA, Respondent
Election Petition No. 5 of 1967—Electoral District No. 27
(Bandaragama)
Parliamentary election—Report made by the Supreme Court, in an election petitionappeal, that a corrupt or illegal practice was committed by a person—. Disqualification of that person for being elected as a Member of Parliament—Meaning of expression “ Election Judge "—Constitutional law—Interpretationof provisions of the Constitution*—Rules applicable—Form of report made by theSupreme Court—Claim of seat for an unsuccessful candidate—Allegation that thedisqualification of the unseated candidate was notorious—Quantum of evidence—Ceylon (Parliamentary Elections) Order in Council, 1946 (Cap. 381), ss. 58 (1)(d), 58 (2), 72 (J), 78, 78A, 78B, 80 (d), 81, 82, 82A, 82B, 820,82C (2) (b), 82D,82D(1) (b), 82D(2) (a), 72D (2) (6) (ti), 83(2), 85(1) (/)—Ceylon (Constitution)‘ Order in Council, 1946, as. 13 (3) (h), 24 (1), 29 (4).
Section 82C (2) (6) of the Ceylon (Parliamentary Elections) Order inCouncil providing for a report by the Supreme Court that a corrupt or illegalpractice has been committed is not repugnant to section 13 (3) (h) of the Ceylon•(Constitution) Order in Council and, therefore, did not require compliance withthe special procedure prescribed by section 29 (4) of the Constitution when itwas enacted ; the words “ report of an Election Judge ” in section 13 (3) (h) ofthe Constitution mean the report made by a Court dealing with an electionpetition, cither as a court of first instance or as a court of appeal. Obiterdictum to the contrary in Thambiaydh v. Kulasingham (50 N. L. R. 25) dissontedfrom.
When considering whether an enactment is in conflict with any provision ofthe Ceylon (Constitution) Order in Council, the following rules of interpretationare applicable:—(1) There is a presumption in favour of validity and theCourt will hot rule the enactment to be ultra vires unless the invalidity isbeyond doubt. (2) When the question arises whether a term in the Constitutionshould be used in a narrow sense or given a broader interpretation, the Courtshould be' inclined to use it in the latter sense unless there is something in thecontext or the rest of the Constitution which militates against such a view.(3) The Constitution, being organic law, cast in broad and general terms, it hasalways to bo borne in mind that the framers of the Constitution intended toapply it to varying conditions brought about by later developments. . (4) TheCourts should give due effect to the declared intention of the legislature inseeking to interpret a document such as the Constitution.
. ' 1 ■
When the determination of an Election Judge as a court of first instancein favour of the successful candidate is reversed by the Supreme Court on theground that an agent of the candidate was guilty of corrupt practice, the reportmade by the Supreme Court under section 82C (2) (6) of the ParliamentaryElections Order in Council is valid so long as it contains in a clear and concisemanner all the matters required by section 62.
Where there are two or more candidates for a Parliamentary, osat and, inconsequence of an election petition, the election of the successful candidate isdeclared void on the ground that at the time of the election he was disqualified,
9 LXXI—21 db 22
PP 006137 (98/08)
482
AL1.ES, J.—Pciria v. K. D. D. Perera
the candidate who obtained the next highest number of votes is not entitled tothe seat in terms of section 80 (d), read with section 85 (1) {/), of the Parlia-mentary Elections Order in Council if the disqualification of the unseatedcandidate could not be said to have been notorious by reason of the fact that,on account of two seemingly conflicting decisions of the Supreme Court, therewere two views of the law on the fact of disqualification placed before theelectors and the disqualification was not founded on some positive andestablished fact on the date of the poll.
JElECTION Petition No. 5 of 1967—Electoral District No. 27(Bandaragama).
A. C. Gooneratne, Q.C., with Izzadeen Mohamed, H. D. Tarribiah andRanjan Gooneratne, for the petitioners.
Colvin R. de Silva, with Hannan Ismail and P. D. W. de Silva, for therespondent.
H. L. de Silva, Crown Counsel, as amicus curiae.
Cur. adv. vult.
June 14, 1968. Alles, J.—
At the Parliamentary General Elections held on 22nd March 1965, therespondent was declared elected as Member for the electoral district ofBandaragama. Two election petitions were filed against him by tworegistered voters of the electorate praying for declarations that his electionwas void on the grounds, inter alia, that the respondent or his agent orother persons acting on his behalf or with his knowledge and consent,published false statements of fact in relation to the personal character orconduct of Don Christopher Wijesinghe Kannangara, a candidate at thesaid election, and was guilty of a corrupt practice under section 58 (1) (d)of the Ceylon (Parliamentary Elections) Order in Council (Cap. 381).
The Chief Justice, under section 78A (1) of the said Order in Council,nominated Abeyesundere, J. from the Panel of Election Judges appointedby the Governor-General under section 78 (1) as Election Judge to try thesaid petitions. There was a consolidated hearing of the said petitionsbefore Abeyesundere, J. who by his judgment of 5th June 1966 dismissedthe said petitions. The petitioners thereupon lodged an appeal to theSupreme Court against the judgment of the Election Judge under section82A (1) of the Order in Council. The appeal was heard before threeJudges of the Supreme Court (The Chief Justice, Tambiah and G. P. A.Silva, JJ.) who by their judgment of 12th May 1967 held that the ElectionJudge had misdirected himself in law on the meaning of ‘ agency ’ in theelection law and that on the totality of the proved circumstances in the
ALLES, J.—Peiria v. K. D. D. Perera
483
case, one Jayatileke, in promoting the election of the respondent, publisheddefamatory statements in regard to the character of the opposingcandidate and that he did so with the respondent’s knowledge. It wasthe view of the Supreme Court that Jayetileke acted as agent of therespondent in committing the corrupt practice mentioned in section 68 (1)
and that the election of the respondent was void on the ground that thecorrupt practice was committed by his agent, Jayetileke.
On 29th May 1967 Jayetileke was given an opportunity to show causeunder the proviso to section 82 why he should not be reported to theGovernor-General under the provisions of the Order in Council.Jayetileke was represented by Counsel and at the conclusion of theinquiry against him, the Supreme Court consisting of the same threeJudges, held that cause was not shown against the making of the reportand thereafter the Supreme Court issued the report under section 82C (2)(6) which was ultimately transmitted to the Governor-General on 5th June1967 by the Registrar of the Supreme Court who informed him that thedetermination of the Election Judge on the two election petitions wasreversed by the Supreme Court. Upon transmission to the Governor-General of the certificate and report, the report was published in theGovernment Gazette No. 14,765/2 of 2nd July 1967 in terms of section 82D
(a) of the Order in Council. The determination and decision of theSupreme Court took effect and a fresh election was held in terms ofsection 82D (1) (6) on 23rd September 1967. The respondent cameforward as a candidate at the new election and the Returning Officerdeclared the votes cast for the candidates as follows :—
K. Don David Perera (the respondent)
George Kotalawala..
Eustace Bandara
The petitioners to the present petition, who are registered voters of theBandaragma electorate, claim that by reason of the report of the SupremeCourt in terms of section 82D (2) (6) (ii), the respondent at the date of thesaid report, namely 5th June 1967, became incapable for a period ofseven years of being registered as an elector or of being electedor appointed a Member of Parliament.
The main contention of Counsel for the petitioners was that, beingdisqualified from being a candidate in view of the provisions of theElections Order in Council, the respondent was not entitled to comeforward as a candidate at the said election. It was further submitted byhim that the disqualification of the respondent being a matter of notorietyand one to which the widest publicity was given in the electorate, thevoters who cast their votes for the disqualified candidate had thrownaway their votes and consequently the majority of lawful votes beingcast for the candidate who came second, George Kotalawala, the latterwas entitled in law to claim the seat.
..23,840
..18,372
211
484
ALLES, J.—Peiris v. K. D. D, Perera
Counsel for the respondent on the other hand, maintained that therespondent was not disqualified from seeking re-election, that the reportof the Supreme Court made under section 82C (2) (6) was void since thelaw providing for a report of the Supreme Court was in conflict withsection 13 (3) (A) of the Constitution Order in Council; that the lawproviding for a report of the Supreme Court in effect was an amendmentof the Constitution and that the procedure contemplated in section 29 (4)of the Constitution not having been followed the provisions of sections82C (2) (6) and 82D (2) (a) of the Order in Council were ultra vires section13 (3) (A) of the Constitution. In support of his submission Counselfurther relied on the judgment of the Divisional Bench in Thambiayah v.Kvlasingham which, he argued, supported his legal contention. In anyevent, Counsel for the respondent submitted that it was not open to thepetitioners to claim the seat on behalf of the unsuccessful candidate.
The matters raised by Counsel for the respondent are of considerableimportance; the questions of law raised by him not only affect theinterpretation of the Constitution but also have an important bearing onthe appellate powers of the Supreme Court in election cases. In arrivingat my conclusions, I have received considerable assistance from learnedCounsel on both sides. My special thanks are due to Crown Counsel, who,at short notice, appeared in Court and assisted me on the complexquestions of law that arise for consideration in this case.
An examination of the relevant provisions of the Constitution Order inCouncil of 1946 and the Parliamentary Elections Order in Council isnecessary in order to appreciate the constitutional issues that have beenraised in this petition.
Section 24 (1) of the Constitution provides, inter alia, that the seat of aMember of Parliament shall become vacant—
if he becomes subject to any of the disqualifications mentioned in
– section 13 of this Order.
Section 13 (3) states that—
A person shall be disqualified for being elected or appointed as aSenator or a Member of the House of Representatives or for sitting orvoting in the Senate or in the House of Representatives—
(A)’ if by reason of his conviction for a corrupt or illegal practice orby reason of the report of an election judge in accordance with the lawfor the time being in force delating to the election of Senators or Membersof Parliament, he is incapable of being registered as an elector or ofbeing elected or appointed as a Senator or Member, as the case maybe.
'{2948) 50 N. L. R. 25.
ALICES, J.—Peiria v. K. D. D. Perera
485
At the time section 13 of the Constitution came into force (5th July1947) the law governing the disposal of election petitions was containedin Fart V of the Ceylon (Parliamentary Elections) Order in Council of1946. Section 78 of that Order provided as follows :—
.Every election petition shall be tried by the Chief Justice or by aJudge of the Supreme Court nominated by the Chief Justice for thepurpose.
The Chief Justice or the Judge so nominated is, in this Order,referred to as the Election Judge.
Sub-section (3) dealt with the powers of the Election Judge to summonwitnesses; sub-seotion (4) declared that an Election Judge shall beattended at the trial of an election petition in the same manner as if hewere a Judge of the Supreme Court sitting at Assizes ; and under sub-section (5) all interlocutory matters in connection with an eleotionpetition may be dealt with and decided by any Judge of the SupremeCourt.
Section 81 provided for the determination of the Election Judge andthe issue of the certificate and upon the certificate being issued, thedetermination of the Election Judge was declared to be final. The sectionalso provided for the holding of a fresh election if the necessity arose.
Section 82 provided for the report of the election judge. Under thesection it was incumbent on the Election Judge to report in writingwhether any corrupt or illegal practice has or has not been proved to havebeen committed by or with the knowledge and consent of any candidateat the election, or by his agent and the nature of such corrupt or illegalpractice, if any, and also the names and descriptions of all persons whohave been guilty of such practices. Like the certificate, the report of theElection Judge was final and on the publication of the report in theGazette the names of the candidate or the persons against whom thereport declared that corrupt or illegal practices were committed weredeleted from the register of electors by the registering officer which madehim incapable .of voting at an election. From a consideration of theabove provisions it will be seen that the concept of the ‘ Election Judge *was one that was recognised in the election law. Indeed this sameconcept was recognised in section 75 of the Ceylon (State Council) Orderin Council, 1931, and even earlier in Article XXXVII of the 1923 Orderin Council. Up to 1946 therefore the Election Judge was always a Judgeof the Supreme Court who tried an election petition and whose report wasfinal. It was therefore submitted by Counsel for the respondent thatwhen the Constitution in 1947 made reference to the report of theElection Judge in accordance with the law for the time being in force,a ground for disqualification, it could only mean that the SupremeCourt was acting as a court of first instance.
486
ALLES, J.—Petris v. K. D. D. Perera
In 1948 and subsequently in 1959 and 1961 there were drastic changesin the election law and the Elections Order in Council for the first timeprovided for an appeal to three Judges of the Supreme Court from thedetermination and decision of an Election Judge. The Order in Councilof 1946 was amended by the introduction of the new sections 81, 82, 82A,82B, 82C, and 82D. Under sections 81 and 82, the certificate and reportof the Election Judge, which had hitherto been forwarded by him directto the Governor, was to be kept in the custody of the Registrar of theSupreme Court to be dealt with according to the directions of theSupreme Court. Section 82A provided for an appeal on a question oflaw to three judges of the Supreme Court from the determination anddecision of the Election Judge and laid down the procedure to befollowed on an appeal. Under section S2B (1), the Supremo Court inappeal had power to affirm, vary or reverse the determination or decisionof the Election Judge and under section 82B (2) the Supreme Court couldissue its own certificate. Under section 82B (3), the Supreme Court hadpower to direct that the petition to which the appeal relates * shall betried anew in its entirety or in regard to any matter specified by thatcourt and give such directions in relation thereto as that court may thinkfit’. Section 82B(5) makes the decision of the Supreme Court in anyappeal final and conclusive.
Under section 82C (1) if no appeal was filed within the prescribed timeor the Supreme Court confirmed the determination of the Election Judgethe court shall transmit to the Governor-General the certificate of theElection Judge under section 81 and the report of the Election Judgeunder section 82 which it will be remembered were in the custody of theRegistrar of the Supreme Court up to that time.
Section 82C (2) is in the following terms :—
“ Where the determination of the Election Judge is reversed by theSupreme Court in appeal, the court shall transmit to the Governor-General the certificate of the decision of that court issued undersection 82B, together with—
The report of the Election Judge made under section 82, if it. is inthe opinion of the Supreme Court not affected by the. decision in theappeal; or
if the court considers it necessary, a report in respect of the mattersreferred to in section 82 made by the court in accordance with theprovisions of that section.”
For the first time the law now contemplated a report of theSupreme Court and this is the report which has been forwarded to theGovernor-General in this case and referred to earlier in this judgment.
AXiLES, J.—Peiria v. K. D. D. Perera
487
The effect of the transmission, of the certificate and report ismentioned in section 82D. If a report is sent by the Supreme Courtdeclaring that a corrupt practice has been committed by an agent of thecandidate, by operation of law, the candidate, would be disqualifiedfrom seeking election as a candidate for a period of seven years (videsection 82D (2) (6) (ii) read with section 58 (2) of the Order in Council) andhis name shall be deleted from the register of electors (section 82D (3)).
There can be no doubt that sections 82C (2) and 82D contemplate areport of the Supreme Court as distinct from a report of tho ElectionJudge. This distinction is clearly brought out in the provisions ofsection 82D (2) of the Order in Council.
It was not tho submission of Counsel for the respondent that the-legislature had not the right by a simple majority to amend tho ElectionsOrder in Council by providing for an appeal to three Judges of theSupremo Court from tho determination of tho Election Judge nor did heseek to argue that the Supreme Court could not issue a certificate undersection 82B (2), when it varied the decision of the Election Judge, but itwas bis submission that when section 82C (2) (6) provided for a report ofthe Supreme Court and a transmission of such a report to the Governor-General, with the attendant consequences of disqualification on acandidate or any other person, it was unconstitutional being in conflict withsection 13 (3) {h) of the Constitution. This new disqualification, accordingto Counsel, needed a constitutional amendment contemplated under theprocedure specified in section 29 (4) of the Constitution. Counsel for thepetitioners however maintained that when the section referred to areport of the Election Judge in accordance with the law for the timebeing in force it necessarily included the three Judges of the SupremeCourt who under the amendment to the Elections Order in Council werevested with the power td deal with an appeal on an election matter andwho therefore could be included in the term ‘ Election Judge
Apart from the historical approach which according to Counsel for therespondent, supported his submission that when the Constitution referredto an*Election Judge ’ in section 13 (3) (h) of the Constitution, the framersof the Constitution must have had in mind a judge of the SupremeCourt acting as a court of first instance, Counsel also submitted thatthere were other grounds in the provisions of the Elections Order inCouncil which' favoured this view. He submitted, firstly, that with thewidening of the panel of Election Judges to include Commissioners ofAssize and the senior District Judges, consequent on the amendments tothe Order in Council in 1959 and 1961, it is no longer permissible toequate cm Election Judge to a Judge of the Supreme Court. The effectof these amendments made it possible for the three Judges of the SupremeCourt who hear an appeal from the determination and decision of anElection Judge not.to have been appointed on the panel of Election
488
ALLES, J.—Petris v. K. D. D. Perera
Judges under section 78 (1) of the Order in Council. While an ElectionJudge may be a Judge of the Supreme Court it is not all Judges of theSupreme Court who may be appointed Election Judges. The rights,powers, privileges and immunities of an Election Judge are only confinedto that of a Judge of the Supreme Court sitting at assizes (section 78A (1);the salary of the Election Judge who is not a Judge of the SupremeCourt is equated to the salary of a Commissioner of Assize appointedunder section 22 of the Courts Ordinance—it is indeed doubtful whethera Commissioner of Assize being appointed to “ hold office for such period
and for such criminal sessionof the Supreme Court as shall be
specified in the said Commission ” can function as an Election Judgewhen his commission expires ; the punitive powers of the Election Judgewho is also a Judge of the Supreme Court to punish a witness for perjuryare no greater than those of a District Judge by virtue of section 78A (3)of the Order in Council—In re Aslin Nona 1—and although it may havebeen appropriate for an ‘ Election Court ’ to be called a branch of theSupreme Court in 1942 when Howard C.J. delivered his judgment in In reOoonesinha 2 there was no justification to use this same nomenclatureafter the Supreme Court was vested with appellate powers from thedetermination and decision of the Election Judge. It was therefore sub-mitted by learned Counsel for the respondent that since an ElectionJudge was appointed in a special manner with special powers andprivileges, when section 13 (3) (h) of the Constitution referred to the‘ report of the Election Judge ’ on the ordinary canons of construction, itmust mean the report of the Court dealing with an election petition as acourt of first instance and should not be given the wider meaning con-tended for by Counsel for the petitioners to a report made by a courtdealing with an election petition either as a cour+ of first instance or acourt of appeal. Finally, Counsel for the respondent submitted that theamendments to the Elections Order in Council in 1948 having beenintroduced as a result of the decision mKvIasingham f>. Thambiayah 3, thelegislation that was passed providing for an appellate procedure did notadequately consider the impact of such legislation on section 13 (3) (A)-ofthe Constitution. Indeed in Thambiayah’s appeal4, which was the firstcase in appeal after the amendment of the law, Wijeyewardene, A.C.J.came to the conclusion that the procedure which provided for a report ofthe Supreme Court was ultra vires the provisions of section 13 (3) (A) ofthe Constitution in that it affected an amendment to the Constitutionwhich could only be passed in accordance with the procedure laid downin section 29 (4).
While the submissions of learned Counsel for the respondent are notwithout attraction, it seems to me that in the task of constitutionalinterpretation, special considerations have to bo applied. The Constitu-tion is not an ordinary enactment of the legislature; in the words of ChiefJustice Marshall in M'Culloch 5. The State of Maryland 6 “ we must never1 (1948) 50 N. L. R. 167.* (1948) 49 N. L. R. 505.
* il94ti 43 N. L. R. 337 at 341.* (1948) 50 N. L. R. 25.
* V. 3. Reports 4 Law Ed. 597 at 602.
ALLES, J.—Petris v. K. D. D. Perera
489
forget that it is a constitution we are expounding. ” The Constitution ofCeylon is contained in a written document given to the peoples of thiscountry by Her Majesty the Queen and contains provisions whichno doubt havo boon framed in tho light of existing legislation and theconstitutional development of the country as it existed in 1947. Theconstitution was intended not only as a document that was to be efficaciousin 1947 but was intended to sorve future generations of the subjects ofthe country under changing conditions. Law is never static and mustdevelop with changing times and it should be the endeavour of allpersons interested in the progress of tho oountry to ensure that changinglegislation is always in conformity with the provisions of the Constitution.It is for this reason that Chief Justice Marshall in Cohens t>. Virginia 1remarked that “ a constitution is framed for ages to come, and is designedto approach immortality as nearly as human institutions can approach it.Its course cannot always be tranquil. It is exposed to storms and ‘
tempests.” In recent times our Constitution has weathered many
a storm and it is to the credit of our Courts of Law that our Judgeshave jealously guarded the provisions of the Constitution from anyunwarranted attempts by the Executive to infringe on its provisions. Forthis reason it is that the Privy Council in The Bribery Commissioner v.Ranasinghe 2 remarked that “ the Court has a duty to see that the Con*stitution is not infringed and to preserve it inviolate. ” Of course thatdoes not mean that in an appropriate case the Courts will not pronounceoh the invalidity of legislation which is in conflict with the provisions ofthe Constitution. Recent pronouncements of our Supreme Court and thePrivy Council have amply justified the assertion that the Courts have notbeon slow to be watchful and vigilant against any unwarranted attemptsof the Executive to violate the provisions of the Constitution—Senadkirav. The Bribery Commissioner 3, Piyadasa v. The Bribery Commissioner *,Ranasinghe v. The Bribery Commissioner ®, Walker Sons Co. Ltd. v.Fry 9, and Liyanage v. The Queen.7
Having regard to these general principles it will now be useful toconsider the special considerations that have to be adopted in dealingwith the task of constitutional interpretation..
Firstly in dealing with an enactment the constitutional validity ofwhich is in issue, there is a presumption in favour of validity and theCourt will not rule an enactment to be ultra vires unless the invalidity isclear beyond doubt. In Federal Commissioner of Taxation v. Munro 8Isaacs, J. remarked —
1 U. 3. Reports 5 Law Ed. 257 at 287.
(1964) 66 N. L.R. 73 at 78.
» (1961) 63 N. L. B. 313.
(1962) 61 N. L. B. 385.
(1962) 64 N. L. B. 449.•(1965) 68 N.L.B. 78.
(1965) 68 N. L. B. 265.
(1926) 38 O. L. B. 168 at 160.
490
AJLLES, J.—Peirie v. K. D. D. Perera
“ It is always a serious and responsible duty to declare invalid,regardless of consequences, what the national Parliament, representingthe whole people of Australia, has considered necessary or desirable forthe public welfare. The Court charged with the guardianship of thefundamental law of the Constitution may find that duty inescapable.Approaching the challenged legislation with a mind judicially clear ofany doubt as to its propriety or expediency—as we must, in order thatwe may not ourselves transgress the Constitution or obscure the issuebefore us—the question is :Has Parliament, on the true construction
of the enactment, misunderstood and gone beyond its constitutionalpowers ? It is a received canon of judicial construction to apply incases of this kind with more than ordinary anxiety the maxim Ut resmagis valeat quam pereat. Nullification of enactments and confusion ofpublic business are not lightly to be introduced. Unless, therefore itbecomes clear beyond reasonable doubt that the legislation in questiontransgresses the limits laid down by the organic law of the Constitution,it must be allowed to stand as the true expression of the national will.Construction of an enactment is ascertaining the intention of thelegislature from the words it has used in the circumstances, on theoccasion and in the collocation it has used them. There is always aninitial presumption that Parliament did not intend to pass beyondconstitutional bounds. ”
These observations of Isaacs, J. were cited with approval inThe Queen v. Liyanagel.
Secondly, the Court must have regard to its special character as organiclaw and note that constitutional provisions are usually contained interms of a general nature. Most constitutions deal with the frameworkof government. They do not contain provisions which are foundin statutes passed in the normal exercise of legislative powers. Thereforewhen the question arises whether a term in the Constitution should beused in a narrow sense or given a broader interpretation, the Courtshould be inclined to use it in the latter sense unless there is somethingin the context or the rest of the Constitution which militates againstsuch view.
In Baxter v. Commissioners of Taxation (N.S.W.)a Griffith, C.J.quoted with approval the observations of Story, J. in Martin v. Hunter'sLessee :
“ The Constitution unavoidably deals in general language. It didnot suit the purposes of the people, in framing this great charter of ourliberties, to provide for minute specifications of its powers, or to declarethe means by which those powers should be carried into execution.
1 (1962) 64 N. L. R. 313 at 355.
• (1907) Vol. 4 Pt. 2 G. L. R. 1087 at 1105.
ALLES, J.—Petri* v. K. D. D. Perera
491
It was foreseen that this would be a perilous and difficult, if not animpracticable, task. The instrument was not intended to providemerely for the exigencies of a few years, but was to endure through along lapse of ages, the events of which were locked up in the inscrutablepurposes of Providence. It could not be foreseen what new changesand modifications of power might be indispensable to effectuate thegeneral objects of the charter ; and restrictions and specifications,which, at the present, might seem salutary, might, in the end, prove theoverthrow of the system itself. Hence its powers are expressed ingeneral terms, leaving to the legislature from time to time, to adoptits own means to effectuate legitimate objects, and to mould and modelthe exercise of its powers, as its own wisdom, and the public interests,should require. ”
O’Connor, J. in The Jimbunna Coal Mine, No Liability and another v.The Victorian Coal Miners'_ Association1 gave ^expression to the sameviews in the following words : —,
“ … where the question is whether the Constitution has used tinexpression in the wider or in .the narrower sense, the Court should, inmy opinion, always lean to the broader interpretation unless there issomething in the context or in the rest of the Constitution to indicatethat the narrower interpretation will best carry out its object andpurpose. ”
Thirdly, being Organic law, cast in broad and general terms, it hasalways to be borne in mind that the framers of the Constitution intended toapply it to varying conditions brought about by later developments.This does not mean t' *t the meaning of the legal expression changes buthaving regard to its leric form it is capable of being adapted to newsituations. The rul( : generic interpretation is one that is commonlyused not only tolinary enactments but also to constitutional
documents.
In dealing with * Extension to New Things ’ Maxwell8 states :
“ Except in some cases where the principle of excessively strictconstruction has been applied, the language of a statute is generallyextended to new things which were not known and could not have beencontemplated by the legislature when it was passed. This occurswhen the Act deals with a genus, and the thing which afterwardscomes'into existence is a species of it. ”
This principle is supported by the decisions of the Courts relating to theextension of telegraphic and telephonic communication to existing Actsof the legislature. In Attorney-General v. The Edison Telephone Company
1 (1908) 6 a. L. R. 309 at 368.
‘ Interpretation of Statutes (10th Edn.), p. 79.
492
ALLES, J.—Peiria v. K. D. D. Perera
of London Ltd. 1 it was held that Edison’s telephone was a * telegraph *within the meaning of the Telegraph Acts 1863 and 1869 although thetelephone was not invented or contemplated in 1869 ; in King v. Brislan,Ex parte Williams * it was held that broadcasting was a form of wirelesstelephony and that the Wireless Telegraphy Act was not inconsistentwith section 51 (v) of the Commonwealth Constitution which enabledParliament to make laws for the peace, order and good government of theCommonwealth with respect to ‘ postal, telegraphic, telephonic and otherservices ’. A similar view was taken by the Supreme Court of theUnited States in The Pensacola Telegraph Co. v. Western Union TelegraphCo.3. On this same principle I wish to quote with approval the language•of Lord Wright who tendered the advice of the Privy Council in James■V. The Commonwealth of Australia 4 :
“ It is true that a Constitution must not be construed in any narrowand pedantic sense. The words used are necessarily general and theirfull import and true meaning can often only be appreciated whenconsidered, as the years go on, in relation to the vicissitudes of factw iich from time to time emerge. It is not that the meaning of thewords changes, but the changing circumstances illustrate and illuminatethe full import of that meaning. It has been said that * in interpretinga constituent or organic statute such as the Act (i.e., the British NorthAmerica Act), that construction most beneficial to the widest possibleamplitude of its powers must be adopted *{British Coal Corporation v.
The King) B. ”
Finally the Courts should give due effect to the declared intention of thelegislature in seeking to interpret a document such as the Constitution.In the words of the present Chief Justice in Ranasinghe v. The BriberyCommissioners6, “in examining an enactment with reference to anyalleged Constitutional invalidity, a Court must strive to reach a conclusionwhich will render the will of the Legislature effective, or as effective aspossible. ”
In the light of the general principles set out earlier and the specialconsiderations that must be borne in mind in seeking to interpret a con-stitutional document, I shall now proceed to examine the correct inter-pretation that must be given to the words ‘ report of the Election Judgein accordance with the law for the time being in force relating to election ofSenators and Members of Parliament’. As Crown Counsel submitted inthe course of his able argument on the constitutional issue the words ‘ inaccordance with the law for the time being in force' refer only to a state
1 (1880-1881) L. R. 6 Q. B. D. 244.
(1935) 54 O. L. B. 262, 273, 274.
• U. 8. Reports 24 Law Ed. 708 at 710.
* (1936) 55 C. L.R.lcU 43 ; (1936) A. O. 578 (P. 0.).
* (1935) A. O. 500 at 518.
(1962) 64 N. L. R. 449 at 450.
ALliESS, J.—Peiria v. K. D. D. Perera
493
of potentiality and the state of actuality has to be found elsewhere in therelevant sections of the Elections Order in Council—68 (2), 72 (1) and 82D(2) (6). The very existence, extent, range and length of duration of thedisqualification or incapacity under consideration depends, not on theprovisions of the Constitution, but the election law for the time being inforce.
If, for instance, the Elections Order in Council is amended by therepeal of the provisions attaching a disqualification to either a convictionor a finding embodied in a report, section 13 (3) (h) becomes a dead letter.No constitutional amendment is necessary which abolishes completely theincapacity or disqualification referred to in the section.
. Secondly, the extent and range of the disqualification would varyaccording to the law for the time being in force which can alter thenature of the acts which constitute ‘corrupt practices ’ or ‘illegalpractices Such changes brought about by an amendment of the law bya simple majority do not effect a constitutional amendment. Indeed theConstitution recognised that such variations can be achieved by anamendment of the ordinary law. But as Crown Counsel quite rightly sub-mitted, the legislature cannot override the dear terms of paragraph (h)by seeking to impose an incapacity to acts which dd not constitute corruptor illegal practices, for instance, by declaring that an unsuccessful candi-date who has lost his deposit at two successive elections should suffersuch disability: Such a disqualification would be a new ground for whicha constitutional amendment would be necessary.
Thirdly, the length of duration of the disqualifying period is a matterwhich can be altered by the Elections Order in Council without thenecessity of a constitutional amendment.
It is therefore apparent that the above considerations depend on theelection law for the tune being in force and do not involve any conflictwith the provisions of the Constitution.
If it can properly be conceded that with regard to the above matters,the disqualifications can vary and fluctuate according to the election lawfor the time being in force, there seems to be no reason or justification forgiving the words ‘ Election Judge ' in the section the restricted meaningcontended for by Counsel for the respondent. Although at the time theConstitution was drafted the words ‘ Election Judge ' had perforce toapply to a court of first instance, there seems to be no ground for denyingits applicability to a court dealing with an election appeal, if the law forthe time being in force gave such a court a right of appeal, and alsoempowered it to make a report consequential upon its decision in thecase. In The Bribery Commissioner v. Ranasinghe 1 the Privy Council
* (1984) 66 N. L. B. 73 at 76. -•
494
AIjL.ES, J.—Petris v. K. D. D. Perera
refused to accept the argument that the words ‘ judicial officers * insection 55 of the Constitution only applied to judges of the courts referredto in the Courts Ordinance but also included within that conceptmembers of a Bribery Tribunal who performed judicial duties and wereappointed tinder the Bribery Act of 1954. Before the amendment of1948 it was always a Judge of the Supreme Court who made the finaldecision on an election petition. Even today it is the Supreme Courtconsisting of three Judges who are the final court of appeal and inSenanayake v. Navaratne 1 it was held that no appeal lies to the PrivyCouncil from a decision of the Supreme Court. There is therefore nothingrepugnant to the concept of Supreme Court Judges being regarded asElection Judges. In In re Goonesinha 2 Howard, C.J. referred to thefunctions of a Judge of the Supreme Court hearing an election petition inthe following terms :—
“ The Election Judge is a Judge of the Supreme Court, attended inthe same manner as a Judge of the Supreme Court, interlocutorymatters are decided by any Judge of the Supreme Court, electionpetitions are presented to the Supreme Court, election petitions areintituled * In the Supreme Court of Ceylon member’s agents must beProotors of the Supreme Court of Ceylon and if the Election Judge isdisabled by illness, the trial can be recommenced before another Judgeof the Supreme Court. In these circumstances I have no hesitation incoming to the conclusion that the Election Court is a branch of theSupreme Court”
True it is, that when the learned Chief Justice made those observationshe was dealing with a Judge of the Supreme Court whose decision onan election petition was final but there appears to be no valid ground fordenying to Judges of the Supreme Court hearing an appeal from the deci-sion of an Election Judge, the nomenclature of “ Election J udges5 ’. Indeedeven the Order in Council seems to indicate that it is the Supreme Courtwhich has overall jurisdiction in all election matters. Under section 78B,even today, all interlocutory matters in connection with an electionpetition may be dealt with by any Judge of the Supreme Court-; undersection 83 (2) an election petition may be amended with the leave of aJudge of the Supreme Court within the time within which an electionpetition questioning the return or the election may be presented ; and theobservations of the learned Chief Justice are equally applicable to thefunctions of Election Judges today, except that the Election Judgeneed not necessarily be a J udge of the Supreme Court. Although today theelection law does not provide for a separate election Court similar to a .Court of Admiralty or the Court of Criminal Appeal there appears to beno valid reason, in view of the above observations, why a restrictedmeaning should be given to the words “ Election Judge ” in section 13 (3) (h)
1 (1954) 56 N. L. R. 6» (1942) 43 N. L. R. 337.
ALLES, J.—Peiris v. K. D. D. Perera
495
although in the Elections Order in Council they are used in a specialisedsense. Crown Counsel suggested another cogent reason, which commendsitself to me, as to why the restricted meaning should not be given to thewords Election Judge ” in the Constitution. Broadly speaking, section. 13 (3) (A) attaches the disqualification to a conviction for an illegal orcorrupt practice or to a report made by an Election Judge. In the case of. the conviction it is dear beyond doubt that the reference to a convictionincludes both a conviction by a trial court as well as the court of appeal.Where there is an appeal by the accused or the Attorney-General it isthe appeal court decision that prevails and on which section 13 (3) (7z) willoperate. For similar reasons, there is no reason for assuming that when theframers of the Constitution referred to * the report made by the ElectionJudge ’ they hod in mind only the trial Court. The law for the time beingin force contemplated only a court of first instance but it was open to thelegislature by a simple majority to amend it to include also a court ofappeal. There is no rational basis for making such a distinction between‘convictions’ and ‘reports.’ and it therefore accords with reason andcommon sense to give the words a wider meaning. There was no newground of disqualification set out in the report of the Supreme Court.Section 82D merely introduced a change in the mode of ascertainingtho facts to be embodied in the * report ’ and therefore required • noconstitutional amendment. When the legislature intended to introducea new ground of disqualification it guarded itself against doing anythingunconstitutional and utilised the procedure available in section 29 (4). Forinstance section 29 (a) of the Bribery Act, No. 11 of 1954, introduced anew ground of disqualification but the Act provided and was passed inaccordance with the procedure laid down in section 29 (4) of theConstitution. Similarly, when the Imposition of Civic Disabilities(Special Provisions) Act in 1965 created a ground of disqualification notcovered by section. 13 (3) (k) of the Constitution, provision was made insection 2 of the Act to ensure that it did not infringe oh the provisionsof the Constitution. This procedure was approved of by the PrivyCouncil in Kariapper v. Wijesinlta K
It was also submitted by Crown Counsel that the changes introducedin the election law did not conflict with the pith and substance of section13 (3) (h) and that the amendment did not run counter to the spirit andintendment of the Constitution. A close examination of the relevantsections would reveal that Crown Counsel’s submission is correct. When,the amendment, in 1948 was introduced giving appellate powers to the .Supreme Court from the determination and decision of the ElectionJudge, Parliament provided a further safeguard to make it possiblefor three Judges of the Supreme Court to review the decision of a singleJudge on a question of law. It was a salutary provision and enabledthe aggrieved party to contest the validity or otherwise of the electionbefore three Judges of the highest tribunal in the land. Such a coursebeing eminently desirable, it was possible for the Supreme Court to
*U967)70N.L.R.49.
496
ALLES, J.—Peiria v. K. D. D. Perera
issue its own certificate and declare the election of the candidate void.If it is open to the Supreme Court to issue a certificate declaring theelection void, there is no reason for denying to the Supreme Court theancillary power to make a report to the authorities that corrupt orillegal practices were committed. Indeed it may be that the election wagdeclared void due to the commission of corrupt or illegal practices, in whichcase, it would be unreal for the Supreme Court not to have the power tosubmit its report in such a case. It was the will of the legislature thatthe Supreme Court should be given the power to make its own report.So long as the report is the report of a judicial officer, be it the ElectionJudge or the three Judges of the Supreme Court sitting in appeal,there is no conflict with the Constitution. It would have been differentif the report contemplated was that of an Executive Officer such as theCommissioner of Parliamentary Elections. Finally, section 78A (2)of the Elections Order in Council uses the words ‘in this Order*. Thereis therefore no justification to warrant the application of the definitionin the Elections Order in Council to the .general words used in theConstitution.
I am therefore of the view that the words ‘ report of an Election Judge ’in section 13 (3) (h) of the Constitution mean the report made by a Courtdealing with an election petition, either as a court of first instance or as acourt of appeal and that section 82 D (2) (6) of the Elections Order inCouncil is not ultra vires the provisions of section 13 (3) (h) of theConstitution.
I have dealt with the constitutional issues raised in this petitionwithout considering the effect of the decision in Kulasingham v. Thambiayahwhich I propose to examine in detail. Before doing so, however, I wishto refer to the validity of the Supreme Court report which was challengedby Counsel for the respondent. It was his submission that, according tothe terms of the report, no occasion arose for a disqualification of the res-pondent, since there was no finding in the report that the respondent hadbeen guilty of a corrupt practice. It was urged by Counsel that whensuoh serious consequences as a deprivation of civic rights for a period ofBeven years, without even being able to show cause, resulted from thereport, it was grossly unfair that the respondent should be penalised onsome inference that has to be drawn from the report. I agree withCounsel for the respondent that the penal provisions are harsh but thatis a matter that has to be canvassed elsewhere. The only question thatarises for my decision is whether the report issued by the Supreme Courtin this case is in conformity with the provisions of the law. The reportissued in this case reads as follows :—
“ In terms of section 82 C (2) (6) of the Ceylon (ParliamentaryElections) Order in Council, 1946 (Chapter 381), we hereby report thaton appeal from the determination of the Election Judge in the trial ofthe Election Petitions presented by Don Edin Wijeeekera and Ponsuge
ALLES, J.—Petris v. K. D. D. Perera
497
Bartholis Thisera (Election Petition No. 1 of 1965) and Pathiiage Allis'Perera and Balachandra Aratchige Amarapala Perera.(Election PetitionNo. 16 of 1965) on 2nd April 1965 and 17th April 1965, respectively,complaining against the election of Kongahakankanamge Don DavidPerera as Member of Parliament for Electoral District No. 27—Bandvragama at the General Election holden on the 22nd day of. March, 1965, a corrupt practice has been proved to have beencommitted by Pallage Victor Perera Jayatilleke of Damingomuwa,Milleniya, in that he, being an Agent of the Respondent,Kongahakankanamge Don David Perera, published during the saidelection, a false statement of fact in relation to the personal characteror conduct of Don Christopher Wijesinghe Kannangara who wasanother candidate at the said election for the purpose of affectingthe return of such candidate.
The person named Pallage Victor Perera Jayatilleke was given an
opportunity of being heard by us before making this report.
• ,
Dated at Colombo, this Fifth day of June, 1967.
H. N. G. Fernando,
Chief Justice.
H. W. Tambiah,
Puisne justice.
G. P. A. Silva,
Puisne Justice.”
Under section 82 C (2) (b), the report of the Supreme Court must contain“ the matters referred to in section 82 made by the court in accordancewith the provisions of that section ”. The report under section 82 whichhas to be made by the Election Judge at the conclusion of the trial mustset out—
(а)whether any corrupt or illegal practice has or has not been provedto have been committed by or with the knowledge and consent ofany candidate at the election, or by his agent, and the .nature ofsuch corrupt or illegal practice, if any ; and
(б)the names and descriptions of all persons, if any, who have beenproved at the trial to have been guilty of any corrupt or illegalpractice.
It will be noted that the report is not one made against a particular. individual, be he a candidate or any other person, but a finding of factcontained in a document of the commission of corrupt or illegal practices38 -PP 006137 (98/08)
498
ALLES, J.—Petris v. K. D. D. Pcrera
by persons in the course of an election. Once the leport is transmittedto the Governor-General and the Governor-General causes the report tobe published in the Gazette, the disqualifications mentioned in section82 D (2) (6) (i) and (ii) take place by operation of law. It is therefore notopen to Counsel for the respondent to argue that there should bereporting of the respondent for the commission of a corrupt practice. Anexamination of the report in this case reveals that the Supreme Court hasfound that—•
one Jayatilleke has been guilty of a corrupt practice ;
Jayatilleke was an agent of the respondent, who was a candidateat the election ;
the nature of the corrupt practice committed by Jayatilleke ; and
the name and address of Jayatilleke.
Although section 82 (6) states that the report requires the names anddescriptions of all persons, if any, who have been proved guilty of corruptpractice at the trial, it necessarily follows that when the Supreme Court isempowered to make its own report on its own findings, the corruptpractice is proved to have been committed by the person in the course ofthe trial, as a result of the reversal of the determination of the ElectionJudge on a question of law. In my view, the report contains ini a clearand concise manner all the matters required by section 82. Counsel forthe respondent relied on the case of Grant v. Overseers of Pagkam 1 insupport of his submission that the form of the report forwarded in thiscase was invalid. That case, however, can be distinguished on the facts.In that case, the report of the election judge stated the facts from whichpersonal bribery and other corrupt practices could bo inferred againstGrant but he did not report in terms of the statute that “ a corruptpractice has been proved to have , been committed with the. knowledgeand consent of the candidate ”. According to Grove, J. “ the report doesnot find that the candidate was guilty of a corrupt practice with his ownknowledge and consent. It is consistent, therefore, with his having beenguilty by his agents **. It was therefore held that Grant was not foundon the report to be guilty of bribery. In the present case, however, thereport clearly states that Jayatilleke was an agent of the respondent andthat statement is in conformity with the law.
V I
I will now proceed to deal with the decision in Thambiayah v. Kula-singham 2 which was discussed and dissected in detail by all three Counsel.Being a judgment of a Divisional Bench (Wijeyewardene, A.C.J.,Canekeratne and Windham, JJ.) it is clear that if the question deoidedby Wijeyewardene, A.C.J. in his judgment in that case, which is thesame question of law that has been exhaustively argued in this petition,formed part of the ratio decidendi in the case, it is an authority bindingon me, even if I am disposed to take a different view.
1 (1877) 0. P. 80 ut 85 and 87.
• (1948) 50 N. L. R. 25.
ALLES, J.—Peiria v. K. D. D. Perera
199
Learned Counsel for the respondent rolled strongly on the judgmentof the learned Chief Justice os stating the correct view of the law andsubmitted that it formed part of the ratio decidendi. Indeed it is on thedecision in this case that the respond 3nt maintained that he was notdisqualified from being re-elected as Member of Parliament for Bandara-gama. In his affidavit Bl, filed in th^se proceedings, he states that hegave wide publicity to the voters of the electorate and mentioned that,in view of the judgment in this case, he was not disqualified from .seekingre-election.
Counsel for the petitioners and Crown Counsel, on the other hand, haveargued that the judgment of the learned Chief Justice on the questionat issue was obiter dicta and that I am not bound to follow the judgmentof the learned Chief Justice. They even submitted that the decisionon the question presently at issue is not correot and cannot even have anypersuasive value.
The case of Thambiayah v. Kulasingham was the first appeal to, be heardby the Supreme Court after the amendments to the Elections Order in'Council in 1948. It is a decision of the highest authority and deliveredby three eminent Judges of the Supreme Court. The case has beenreferred to in “The Constitution of Ceylon” by Jennings1 and alsoin Jennings’ later book “ Constitutional Laws of the Commonwealth ” 2.In the former book, the learned author says this in relation to the case :
“ The Parliamentary Elections (Amendment) Act, No. 19 of 1948,contained provisions in sections 82C and 82D which were held to berepugnant to section 13 (3) (h) of the Constitution, but the remainderof the Act was declared to be valid.” In Bribery Commissioner v. Rana-singhe 3 the Privy Council approved of the dictum in Thambiayah v.Kulasingham that * where invalid parte of the statute which are ultravires can be severed from the rest which is infra vires it is they aloneshould be held invalid’. In Liyanage v. The Queen4 Lord Pearcereferred to the decision in the case when he dealt with the doctrine ofseverability.
It is with some degree of diffidence that I approach the question that ‘has been posed by Counsel for the petitioners and Crown Counsel,conscious as I am that I am invited to criticise the judgment of one ofour most distinguished Judges of the Supreme Court and one whoultimately rose to the eminence of Chief Justice of this country.
In Kulasingham v. Thambiayah6 the Election Judge (Basnayake, J.)declared the election of Thambiayah void on the ground that being ashareholder of a Company, he enjoyed the benefit of a contract under the
1 Constitution of Ceylon by Jennings 178.
* Constitutional Lotos of the Commonwealth 385.
• (1964) 66 N. L. B. 73 at 83.
• (1965) 68 N. L. B. 265 at 285.
* (1948) 49 N. L. B. 505.
00
ALLES, J.—Petris v. K. D. D. Per era
Crown and was therefore disqualified under section 13 (3) (c) of theConstitution. Thambiayah appealed from the determination of theElection Judge and the main issue that arose for consideration at theappeal was whether Thambiayah was disqualified under section 13 (3) (e).The respondent Kulasingham argued his case in person and raised apreliminary objection to the jurisdiction of the Court and submittedthat the amendment to the Election Order in Council in 1948 providingfor an appeal to the Supreme Court was invalid and ultra vires the Consti-tution, since the Amending Act was not passed in accordance with theconstitutional procedure laid down in section 29 (4). In the course ofhis arguments the respondent submitted that a report of the SupremeCourt under the Amending Aot would be repugnant to section 13 (3) (A).The Attorney-General who appeared as amicus curiae and Mr. H.V. Perera,Queen’s Counsel, who appeared for the appellant submitted that, in the'absence of a definition of the words * Election Judge ’ in the Constitution,the words reasonably meant a Judge dealing with election matters andthe Supreme Court acting in its appellate capacity would be ElectionJudges in that respect,—the same argument that has been advancedin this case. In view of the preliminary objection to the hearing of theappeal, Wijeyewardene, A.C. J. had to consider the effect of the preli-minary objection, and after consideration held that the provisions ofsections 82A and 82B which gave the Supreme Court the right to hear anappeal from the determination of the Election Judge was not in conflictwith the provisions of the Constitution. After summarising the argu-ments of the respondent and Counsel for the appellant on the preliminaryobjection he stated :
"As I am not satisfied with the soundness of this.method of. extracting a definition of * Election Judge ’ from section 13 (3) (h) itself,
I do not propose to rest my decision regarding the second preliminaryobjection on this argument.” ~.
The learned Chief Justice then proceeded to make these observations. on which Counsel for the respondent relies :—
“ A difficulty arises, however, when we proceed to consider the casethat may arise under the new sections 82C and 82D where the decisionof the Supreme Court in appeal sets aside the report of the ElectionJudge that a person is not guilty of corrupt or illegal practice and theSupreme Court sends its own report finding such person guilty. AsI am of opinion that the term Election Judge means the Judge who triesan election petition, I think that the provisions of the Ceylon (Parlia-mentary Elections) Amendment Act, No. 19 of 1948, are in conflict withsection 13 (3) (A) of the Ceylon (Constitution and Independence) Ordersin Council, 1946 and 1947, in so far as these provisions made the reportof the Supreme Court operate as a ground of disqualification. "
He then proceeded to consider the effect of the repugnant provisionsin the Elections Order in Council of 1948 and held that there were‘ offending provisions ’ and ‘ innocent provisions ’ but held that the
ALI.E8. J.—Petris v. K. D. D. Perera
501
offending provisions were only ancillary to the * inuosmt provisionsand were separable. After dealing with the doctrines, of severabilityhe endorses the view he had taken earlier when he says at page 37 :
“ In the ease before us 1 hate found that the provisions in the Parlia-mentary Elections (.Amendment) Act, No. 19 of 1948, relating to a reportby the Supreme Court, so far as it embodies a finding that a corrupt orillegal practice has been committed, teas not duly passed by the CeylonParliament. These provisions were, therefore, ultra vires. Thoseprovisions, however, could be easily severed from the remainingprovisions in the Aet which are intra vires.**
The learned Chief Justice then deals with the substantial question raisedin the appeal and sets aside the determination of the Election Judge onthe ground that the appellant was not disqualified under section 13 (3) (c)of the Constitution.
. It was submitted by learned Counsel for the petitioners and CrownCounsel that the rationes decidendi in the case were—
the finding in the decision that a shareholder of a company having
a contract with the Crown cannot be said to enjoy indirectlya benefit under a contract and is therefore not a persondisqualified under section 13 (3) (c) of the Constitution ;
•
the holding on the preliminary objection that the Court has
jurisdiction to hear the appeal as sections 82A and 82B,introduced by the Amending Act of 1948, are intra vires theConstitution.
It can also be assumed that the learned Chief Justice’s decision thatsections 82A and 82B are severable from the other parts of the AmendmentAct and do not conflict with the Constitution is also part of the ratio—this dictum has boon approved of by the Privy Council in Liyanage v.The Queen *.
The view expressed by the learned Chief Justice in regard to section82D was not necessary to support the ultimate conclusion in the case thatsections 82A and 82B were valid, provisions and were severable from theother provisions. The learned Chief Justice himself remarked that“ no question vises in this case with reference to a report by the Election
Judge in respect of the commission of a corrupt or illegal practice**
and the fact that he was dealing with a hypothetical situation is evidentwhen he says at page 36 : “ A difficulty arises, however when toe proceedto consider the case that may arise under the new sections 82C and 82D **.It appears to me therefore from a consideration of the above matters.
1 (1965) 68 NJjM. 265 at 285.
502
ALLES, J.—Petris v. K. D. D. Perera
that th© learned Chief Justice’s views on the questions at issue wereonly obiter dicta and were not necessary for the ultimate decision in theease.
I have already considered the provisions of the Elections Order inCouncil vis-a-vis the provisions of section 13 (3) (h) of the Constitutionand regardless of the decision in Thambiayah v. Kulasingham come to theview that section 82D (2) (b) of the Order in Council is not in conflictwith the Constitution. I do not think that the judicial declaration ofthe learned Chief Justice can be accepted oven as having persuasivevalue. The special considerations necessary for tho interpretation of aconstitutional document wore not available to the learned Chief Justicewhen the case was argued before him ; no reason has been urged byhim as to why the expression * Election Judge ’ should not be madeapplicable to the Judges of the Supremo Court sitting in appeal; if4 this Order ’ in section 29 (4) of the Constitution moans the ConstitutionOrder equally tho expression ‘ Election Judge ’ ‘ in this Order ’ (i.o.,section 78A (2) of the Elections Order in Council) cannot mean a referencoto ' Another Order ’ (the Constitution); and the fact that for 20 years thedecision in Thambiayah v. Kulasingham was not dissented from is counter-balanced by tho fact that there is no evidence that its correctness on thisissue ever arose for consideration by the Supreme Court. In the presentseries of election petitions, the Supreme Court has not followed thedecision in this case—vide the Bandaragama, Walapane and Katugampola-election petitions.
Finally, if the view expressed by the learned Chief Justice is correctthat sections 82C and 82D are in conflict with the provisions of section29 (4), the only way in which these provisions can be validated would beby following the required constitutional procedure in section 29 (4);but the Chief Justice states exactly the opposite at page 34 when hepoints out that the amendment need not have been passed in accordancewith the proviso to section 29 (4).
I am, therefore, inclined to agree with the submissions of learned Counselthat the decision in Thambiayah v. Kulasingham on the question presentlyat issue is not binding upon me. The contention of Counsel for therespondent therefore fails and by virtue of the report of the SupremeCourt under section 82C (2) (6) which was transmitted to the Governor-General under section 82D (2) (a) of the Elections Order in Council, therespondent was disqualified from being duly elected as Member ofParliament for the electoral district of Bandaragama. I thereforedetermine that the election of the respondent to the Bandaragama seatat the election held on 23rd September, 1967, was void.
The second issue argued by Counsel for the petitioners raises an. interesting question of law. The petitioners claimed that wide publicitywas given to the disqualification of the respondent throughout the electo-rate by the issue of leaflets similar to P2, containing the report of the
ALLES, J.—Petris v. K. D. D. Perera.603
Supreme Court, which pointedly informed the electors of the ineligibilityand incapacity of the respondent to stand for election. In their prayer,the petitioners asked for. a scrutiny in order to strike off the votes cast infavour of the respondent. The respondent on the other hand, throughhis affidavit, R2, which has not been challenged by the petitioners,while admitting that publicity has been given to the report of the SupremeCourt, stated that equally wide publicity had been given to the judg-ment of the Divisional Court in Thambiayah v. Kvlasingham1 accordingto which he was not entitled to be disqualified from coming forwardas a candidate.
The application for a scrutiny is made under section 80 (d) of theElections Order in Council which entitles the petitioners to claim theseat for the unsuccessful candidate on the ground that he had a majorityof the lawful votes. Section 86 (1) enumerates the votes that may bestruck off at a scrutiny and section 86 (I) (/) contemplates five differenttypes of cases in which votes given by a voter for a disqualified candidatemay be struck off—
(а)votes given knowing that the candidate was disqualified ;
(б)votes given knowing the facts causing the disqualification ;
' (c) votes given after sufficient notice of the disqualification ;
votes given when the disqualification waB notorious, and
votes given when the facts causing the disqualification were
notorious.
Unlike in England, the procedure on scrutiny has been given statutoryeffect but itis clear that the draftsman has modelled paragraph (/) ofsection 85 (1) on the English common law—Cooray v. Dt ZoysaKRogers 8, after referring to the English decisions, states :
“ The result of the above decisions is that an elector, who votes fora disqualified candidate, with knowledge either of the disqualificationor of the facts creating the disqualification, throws away his vote ;and such knowledge will be presumed where the disqualification orthe facts creating the disqualification are notorious.”
Counsel for the petitioners claimed that the petitioners had .complied!with the provisions of the section when they brought to the notice ofthe voters, the fact of the disqualification which was notorious, but learnedCounsel for the respondent submitted that the fact of the disqualificationwas one that was disputed. In his contention, one must consider the
1 (1943) 60 N. L. B. 25.
(1936) 41 N. L. B. 121 at 139 and 142t per Akbar, J.
Rogers on Elections Vol. II (20th Edn.), p. 83.
004
AL1.ES, J.—Petris v. K. D. D. Perera
totality of the facts—not only the fact of disqualification brought tothe notice of the electors by the petitioners but also the fact that therewas a decision of three Judges of the Supreme Court who held that theissue of a report by the Supreme Court under the provisions of the Orderin Council was unconstitutional. One can appreciate, but only sympa-thise. with, the dilemma which confronted the voters of Bandaragama—a dilemma perhaps unparalleled in the history of elections in any partof the world. On the one hand, the supporters of George Kotalawalawere informing them that the respondent was disqualified from beingelected as their representative to Parliament, in view of the report ofthree Judges of the Supreme Court, and on the other, they were beingpressurised by the supporters of the respondent, by being told that thethree Judges in question had no right to issue a report in view of thedecision of three other eminent Judges of the same Court. What wasthe perplexed voter to do in these circumstances ? One can hardlyexpect him or her to solve the intricate legal problem which presenteditself for their decision, whether in the free exercise of the ballot, theycould vote for the candidate of their choice—a problem which has takeneminent Counsel several days in this Court to unravel. In this diffioultsituation, it is incumbent on the Court to examine the legal position andarrive at a finding whether the claim of the petitioners is one that isentitled to succeed.
In Drinkwater v. Deakin,1 a leading case on this aspect of the law,I/)rd Coleridge cited with approval the findings of the Clitheroe Committee,which were to the following effect:—
"… the disqualification muBt be founded on some positive and definitefact existing and established at the time of polling, so as to lead tothe fair inference of wilful perverseness on the part of the electorsvoting for the disqualified person.”
In the same case, Lord Coleridge stated that the word ' disqualified *in the Parliamentary Elections Act was used in two senses at least—disqualified to be elected and disqualified to be a candidate. A candidatemay be disqualified if the disqualification attaches to a status, forinstance, if the candidate is a woman or an alien or a convicted felon.According to Lord Coleridge, in such cases “ something is wanting in thecandidate himself which cannot be supplied, the existence or non-existence of which is not dependent on argument or decision, but whichthe law insists shall exist in every one who puts himself forward as acandidate ”, There is an absolute disqualification in such cases and itmust be presumed, that when voters cast their votes for such a candidate,they act with wilful perversity and throw away their votes. Thus inBeresford-Hope v. Lady Sandhurst8 Lady Sandhurst, being a woman,
'(1874) 9 C. P. 626.
•(1889) 23 Q. B. D. 79.
ALLE8, J.—Petris v. K. D. D. Perera
606
was absolutely disqualified from seeking election and the votes givento her were presumed to be thrown away and the unsuccessful candidatewas held to have been elected, having received the majority of the lawfulvotes. A similar situation arose in the Bristol South East ParliamentaryElection1 where Viscount Stansgate, who was a peer, was disqualifiedfrom being elected to the House of Commons. His incapacity was wellknown to the electors even before they cast their votes for him and theCourt was bound to declare such votes as having been thrown away,the voters having acted with wilful perverseness. In Drinkwater v.Deakin (supra) the fact of disqualification (the alleged commission ofbribery by the successful candidate) was brought to the notice of theelectors at the time of the poll by the publication of a notice, but in spiteof the wide publicity given to Colonel Deakin’s lapse, he was elected.At the trial of the petition against him, Mellor, J. found Colonel Deakinguilty of a corrupt practice and the respondent, Drinkwater, who was tbounsuccessful candidate, claimed the seat. Mellor, J. thereupon stateda case for the opinion of the Court of Common Fleas and thereference case before three Judges—Lord Coleridge, Brett and Denman,JJ.—who held that Colonel Deakin was not disqualified to be a candidateon the date of the poll, because at the time there was no declaration thathe had been guilty of bribery. Said Lord Coleridge at page 637 :
“ The conclusion, therefore, is, that neither apart from the statutesnor created by the statutes is there in a candidate from the moment ofhis bribing and after notice of the fact of his bribing any such dis-qualification as to prevent him thereupon from being a candidate atthe then election, and to make all votes given in his favour after such- notice as if they had not been given at all: Invalid, upon proof ofhis bribery, for the purpose of seating him, they are ; throum avxty, forthe purpose of seating his opponent, in my opinion they are not.”
Can it be said in this case that the respondent’s disqualification isfounded on some positive and definite fact which was established on thedate of the poll 1 On that date, there were two views of the law on thefact of disqualification placed before the electors. I have held that thereport of the Supreme Court issued in this case disqualified the respondent,but my decision is not final, as the respondent is entitled to canvass myfinding in appeal and maintain that the decision in. Tharribiayah’s caseis correct and binding on me. The essence of free elections is that thevoter most be able to cast his vote for the candidate of his choice. Therewas no absolute disqualification of the respondent on the date of the poll,nor was the fact of disqualification notorious; it depended on legalargument and it could not be urged that the 23,840 electors of Bandara-gama, who cast their votes for the respondent had thrown away theirvotes and had acted with wilful perversity. I therefore hold that theunsuccessful candidate is not entitled to claim the seat.
» (1961) 3 A. E. R. 364.606
Yakkaduwe Sri Pragnarama Thero v. Minister of Education
My decision in this petition is that tho election of KongahakankanamgeDon David Perera to the Bandaragama seat in the House of Represen-tatives is void on the ground that he is disqualified under section 13 (3) (A)of the Constitution from being elected a Member of Parliament and thatthe claim of the petitioners to the seat on behalf of the unsuccessfulcandidate fails. Each party will bear their own costs.
Election of respondent declared void.
Claim to seat the candidate who camesecond dismissed.