002-NLR-NLR-V-56-E.-L.-SENANAYAKE-Appellant-and-H.-M.-NAVARATNE-et-al-Respondents.pdf
[In the Privy Council]
1954Present: The Lord Chancellor, Lord Cohen andMr. L. M. D. de SilvaE. L. SENANAYAKE, Appellant, and H. M. NAVARATNE et al.,
Respondents
PRIVY COUNCIL APPEAL JNO. IV OF
Privy Council—Election petition—Appeal to Supreme Court—Decision of SupremeCourt is final —No appeal to Privy Council—Ceylon (Parliamentary Elections)Order in Council, 1946, as. 81, 82, 82a.-x>, os amended by Act No. 19 oj 1948.
Where a party who is dissatisfied with the determination of an eleotionjudge prefers un appeal to the Supreme Court on questions of law under section82a of the Parliamentary Eleotiona Order in Council, no appeal will be enter-tained by the Privy Council from the decision of the Supremo Court, even ifthe jurisdiction of the eleotion judge to deal with the subject-matter at issueis challenged.
“ The peculiar nature of the jurisdiction and the importance in the publicinterest of securing at an early date a final determination of the matter and therepresentation in Parliament of the constituency affected make it clear that itwas not the intention of the Order-in-Council to create a tribunal with the ordi-nary incident of an appeal to the Crown. ”
^.PPEAK from a judgment of the Supreme Court reported in(1953) 55 N. L. E. 193.
Sir Hartley Shawcross, Q.C., with Kenneth Diplock, Q.C., E. K. Handooand Walter Jayawardene, for the appellant.
S.Nadesan, with Sirimevan Arnerasinghe and P. B. Tampoe, for therespondent.
Cur. adv. vult.
June 21, 1954. [Delivered by The Lord Chancellor]—
The Supreme Court of Ceylon by judgment dated the 18th December,1953, affirmed by a majority an Order of the election judge (deSilvaP.J.)dated the 13th February, 1953, determining that the appellant’s electionto the House of Representatives, Ceylon, as the member for thp Kandy'Electoral District was void.
The election judge found that the appellant had committed two corruptpractices. The Supreme Court reversed his decision on one of them butaffirmed his determination that the election was void on the ground tliutthe appellant in breach of para. {/) of section 58 of the Ceylon (Parlia-mentary Elections) Order-in-Council 1946 had knowingly made thedeclaration as to election expenses required by section 70 of the Order-in-Council falsely.
2*J. N. B 38465(9/5*)
®LORD CHANCELLOR—Senanayalee v. Navaratne
Before the Supreme Court the appellant argued that the determinationof the election judge ought to be reversed on two grounds: (1) that therewas not evidence to support the finding of the election judge ; (2) thathe had no jurisdiction to hear the Petition since, although the Petitionhad been presented in accordance with section 83 (1) of the Order-in-Council, the application for leave to amend the Petition by alleging afalse declaration as to election expenses had not been made withintwenty-one days of the date on which the result of the election had beenpublished in the Government Gazette in accordance with section 50.
The Supreme Court rejected both pleas, the second by a majority onthe' ground that the case fell within the proviso to section 83 (1), theoriginal Petition (which raised other charges Of corrupt practices) havingbeen presented within the specified period of twenty-one days and theamendment raising the charge now in question having been made withintwenty-eight days after the transmission to the returning officer of theallegedly false return of election expenses.
The appellant applied to this Board for leave to appeal from thisdecision. The respondents did not appear on the hearing of the Petitionbut the appellant’s counsel very properly called the Board’s attentionto certain authorities which raised a doubt whether the Appeal could beentertained having regard to the subject-matter, the validity o ' a Parlia-mentary Election with which it dealt. Leave was granted on the10th February, 1954, but “ without prejudice to the right of the Attorney-General of Ceylon or the respondents to argue the question as to thejurisdiction of the Lords of the Committee to, entertain the Appeal ”.
The Case lodged on behalf of the respondents contained no referenceto the question thus reserved, but the respondents shortly before thehearing gave notice of their intention to raise it, and it was argued beforetheir Lordships as a preliminary point.
Having regard to the conclusion which their Lordships have reachedthoreonj it will not be necessary to set out in great detail the provisionsof the Ceylon (Parliamentary Elections) Order-in-Council, 1946, or Actsof the Ceylon Legislature amending the same but it will be convenientto refer to a few sections which may throw some light on the preliminarypoint.
Section 81 of the Order-in-Council in its original form was as follows :—“ At the conclusion of the trial of an election petition the electionjudge shall determine whether the Member whose return or electionis complained of, or any other and what person was duly returnedor elected, or whether the election, was void, and shall certify suchdetermination to the Governor. Upon such certificate being given,such determination shall be final; and the return shall be confirmedor altered, or the Governor shall within one month of such deter-mination by notice in the Government Gazette order the holding ofan election in the electoral district concerned, as the case may require,in accordance with such certificate. ”
By seotion 82 (1) of the Order-in-Council the election judge was alsorequired to report in writing to the Governor whether any corrupt orillegal practice had or had not been committed by or with the knowledge
LORD CHANCELLOR—Senunayake t». N avaratne
7 –
of any candidate at the election or by his agent and by section 82 (3)when an election judge reported that a corrupt or illegal practice hadl>een committed by any person, that person was to be submitted to thesame incapacities as if at the date of the Baid report he had been con-victed of that practice pursuant to section 58 of the Order-in-Council.
Sections 81 and 82 of the Order-in-Council were repealed by section 2of the Parliamentary Elections (Amendment) Act, No. 19 of 1948, andnew sections 81, 82, 82a, 82b, 82c and 82d were substituted therefor.Their Lordships need not set out the new sections in full. Suffice it tosay that they confer a right of appeal to the Supreme Court on a persondissatisfied with the determination of an election judge on a questionof law but not otherwise. The Appeal has to be presented before theexpiry of a period of one month next succeeding the date of the deter-mination against which the Appeal is preferred. Section 82b (3) providesthat the decision of the Supreme Court is to be final and conclusive.
A right of appeal from a determination of the election judge havingbeen given the provisions in the original section 81 directed to semiringan early election to fill any vacancy created by the determination had tobe modified, but the substituted sections 82c and 82d contain provisionssecuring that the Governor-General shall direct the holding of a newelection within one month after'receiving notice of the final determinationthat an election was void.
In support of his preliminary point Mr. Nadesan for the respondentsrelied on three decisions of this Board, Theberge v. Landry *, Strickland v.Grima 2, and de Silva v. Attorney-Generala. In Theberge v. Landry(supra) their Lordships were considering a petition for leaVe toappeal from a decision of the Superior Court of Quebec declaring theappellant’s election to the House of Assembly void on the groundof corrupt practices. The Jurisdiction of the Superior Court inelection matters had been established by the Quebec ControvertedElections Act (38 Viet. c. 8 Quebec Statutes) which hadtransferred to the Superior Court a jurisdiction previously exercisedby the Assembly itself and which contained a provision that the Judgmentof the Superior Court in such cases should not he susceptible of appeal.Kofusing leave to appeal Lord Cairns delivering the judgment of theBoard said : ■
“ Their Lordships wish to state distinctly, that they do not desireto imply any doubt whatever as to the general principle, that theprerogative of the Crown cannot be takon away except by expresswords ; and they would be prepared to hold, as often has boon heldbefore, that in any case where the prerogative of the Crown has existed,precise words must be shown to take away that prerogative. But, intho opinion of their Lordships, a somewhat different question arisesin the present case. These two Acts of Parliament, the Acts of 1872and 1875, are Acts peculiar in their chara'cter. They are not Actsconstituting or providing for the decision of mere ordinary civil rights ;they are Acts creating an entirely new, and up to that time unknown.
3 (1030) A. V. 283.
' (1876) 2 .1, r. 102.
(ioi9) so x. /.. n. ist.
s
LORD CHANCELLOR—tSenanayahe v. Naoaratne
jurisdiction, in a particular Court of the colony for the purpose of takingout, with its own consent, of the Legislative Assembly, and vestingin that Court, that very peculiar jurisdiction which, up to that time,had exiBted in the Legislative Assembly of deciding election petitions,and determining the status of those who claimed to be members of theLegislative Assembly. A jurisdiction of that bind is extremely special,and one of the obvious incidents or consequences of such a jurisdictionmust be that the jurisdiction, by whomsoever it is to be exercised,should be exercised in a way that should as soon as possible becomeconclusive, and enable the constitution of the Legislative Assemblyto be distinctly and speedily known. ”■
In Strickland v. Grima (supra) a similar issue arose as to the constitutionof the Senate of Malta. Leave to appeal had been granted but thequestion of their Lordships’ jurisdiction was raised at the hearing of theappeal. Lord Blanesburgh delivering the judgment of the Board said :—
“ Although special leave to appeal had been granted by His Majestyin Council it was recognised that it was not thereby intended that theBoard, with all the facts before it, should be precluded fromreconsidering whether the appeal was competent. ”
The statutory provisions as to the composition of the Senate were com-plicated and it is sufficient for present purposes to say that letters patentgoverning the matter contained a provision in these terms :—
“ All questions which may arise as to the right of any person tobe or remain a member of the Senate of the Legislative Assemblyshall be referred to and decided by our Court of Appeal in Malta. ”
Their L&rdships applying Theberge v. Landry (supra) held that upon theconstruction of the letters patent an appeal would not lie and accordinglyrefused further to entertain the appeal.
In de Silva v. Attorney-General (supra) their-Lordships were consideringan application for leave to appeal from a determination of the electionjudge under the original section 81 of the Order-in-Council now beforetheir Lordships. The determination had been given before the passing ofAct No. 19 of 1948 and there was therefore no right of appeal to theSupreme Court. Their Lordships advised Her Majesty to refuse leaveto appeal. Delivering the judgment of the Board, Lord Simonds afterreferring to Theberge v. Laudry (supra) continued :—
“ It is no doubt true, as counsel for the petitioner urged, that theprerogative right to entertain an appeal is * taken away only by expresswords or the necessary intendment of a statute or other equivalentact of state ’ (see Renouf v. A. G: (1936) A.C. 445 at 460) but as waspointed out in Theberge v. Laudry, the preliminary question must beasked whether it was ever the intention of creating a tribunal withthe ordinary incident of an appeal to the Grown. In this case as inthat it appears to their Lordships that the peculiar nature of the
LORD CHANCELLOR—Senanayalce v. Naoaratne
0
jurisdiction demands that this question should be answered in thenegative. It was contended for the petitioner that different con-siderations apply where, as here, the jurisdiction of the election judgeto hoar election petitions is not substituted for that of the legislativel>ody itself but is created de novo upon the establishment of that body,lint this appears to their Lordships to be an unsubstantial distinctionand in effect to be met by the later case of Strickland v. Griina. Sucha dispute as is here involved concerns the rights and privileges of alegislative assembly, and, whether, that assembly assumes to decidesuch a dispute itself or it is submited to the determination of a tribunalestablished for that purpose, the subject-matter is such that tho deter-mination must be final, demanding immediate action by the properexecutive authority and admitting no appeal to His Majesty in Council.Tliis is the substance of the authorities to which reference has beenmade, and it is noteworthy that in accordance with them an appealin such a dispute has never yet been admitted. ”
Since de Silva v. Attorney-General was decided, the Ceylon Order-in-Council has been amended by allowing an appeal to the. Supreme Courton questions of law but their Lordships cannot regard that amendmentas effecting the application to the present case of the principle laid downin ^he cases cited.
In none of these cases was the jurisdiction of the tribunal to deal withthe subject-matter at issue challenged whereas in the present cuse SirHartley Shawcross on behalf of the appellant seeks to challenge thejurisdiction of the election judge on the second ground raised by theappellant before the Supreme Court, namely, that the application forleave to amend the petition was not made within twenty-one days afterthe publication of the result of the election in the Government Gazette.
Tho jurisdiction of the election judge being challenged the JudioiulCommittee, so the argument ran, must have jurisdiction to determinewhether his Order was a nullity.
In support of this argument he relied on the observations of ViscountSimon L.C. in Nawaz v. Kiny-Emperor 1 where, dealing with the questionof the class of criminal cases in which the Judicial Committee will giveleave to appeal, he said at p. 128 :Another and obvious example would
arise if tho Courts had no jurisdiction either to try the crime, or to pussthe sentence ”. But in that case their Lordships were considering notwhether an appeal to the Judicial Committee was competent but whetherin a class of cases in which admittedly an appeal was competent theirLordships should in their discretion grant leave to appeal. Here as waspointed out in de Silva v. Attorney-General (supra) their Lordships aredealing with “ the peliminary question whether it was over tho intentionof creating a tribunal with tho ordinary incident of an appeul tothe Crown ”.
Sir Hartley Shawcross mainly relied, however, on some observationsof Lord Esher in R. v. Commissioners for Special Purposes of The Income
1 L. R. 68 I. A. 126.
10LORO CHANCELLOR—Senanmfake v. NavaratM
Tax 1 where Lord Esher was dealing with tie powers which an Act ofParliament may confer on an inferior court or tribunal or body whenfirst creating it. He said:
r~‘It may in effect say that, if a certain state of facts exists andis shewn to such tribunal or body before it proceeds to do certain thingsit shall have jurisdiction to do such thingB, but not otherwise. Thereit is not for them conclusively to decide whether that state of factsexists, and, if they exercise the jurisdiction without its existence, whatthey do may be questioned, and it will be held that they have actedwithout jurisdiction. But there is another state of things which mayexist. The legislature may intrust the tribunal or body with a juris-diction, which includes the jurisdiction to determine whether thepreliminary state of facts exists as well as the jurisdiction, on findingthat it does exist, to proceed further or do something more. Whenthe legislature are establishing such a tribunal or body with limitedjurisdiction, they also have to consider, whatever jurisdiction theygive them, whether there shall be any appeal from their decision, forotherwise there will be none. In the second of the two cases I havementioned it is an erroneous application of the formula to say that. the tribunal cannot give themselves jurisdiction by wrongly decidingcertain facts to exist, because the legislature gave them jurisdiction todetermine all the facts, including the existence of the preliminaryfacts on which the further exercise of their jurisdiction depends ;and if they were given jurisdiction so to decide, without anyappeal being given, there is no appeal from such exercise of theirjurisdiction. ”»
Sir Hartley said that the Courts, in determining into which class aparticular tribunal falls, should lean against the second alternative sinceit might'leave the subject at the mercy of an arbitrary tribunal withoutany right of appeal. Such he said would have been the position inCeylon before the amending Act No. 19 of 1948. Their Lordships mustpoint out that Lord Esher was dealing with a case where the statute hadmade the existence of a special set of facts a condition precedent to theexercise of jurisdiction by a tribunal whereas their Lordships have todeal with a case where the question of jurisdiction depends on theconstruction of the statute itself. Their Lordships are therefore unableto derive much assistance from the case last cited. They are satisfiedthat the election judge as established by the Order-in-Council of 1946was a tribunal with a jurisdiction not only to determine finally the questionwhether the corrupt practices alleged in the petition had been committedbut also to determine finally whether upon the true construction of theOrder-in-Council it was competent in the circumstances for the petitionerto maintain his amended petition. Their Lordships do not desire torepeat what was said by their predecessors in the cases cited. Sufficeit to say that in their Lordships’ opinion the peculiar nature of the juris-diction and the importance in the public interest of securing at an earlydate a final determination of the matter and the representation in
* 21 Q. B. D. 313 at p. 319.
ROSE C-J.—Sumanasena o. The Queen
n-
Parliament of the constituency affected make it dear that it was not theintention of the Order-in-Council to create a tribunal with the ordinaryincident of an appeal to the Crown.
It is for these reasons that their Lordships have humbly tenderedtheir advice to Her Majesty that the appeal ought not to be furtherentertained.
The appellant must pay the respondents’ costs of this appeal less theappellant’s costs of the respondents’ two applications made on the 15thJuly, 1954, and the 20th July, 1954, respectively.
Appeal rejected.