LORD SEVTONDS—Q. E. de Silva v. Attorney-General
[In the Privy Council]
1949 Present:Lord Simonds, Lord du Parcq and Lord NormandE. DE SILVA, Petitioner, and ATTORNEY-GENERAL et al.,
Application foe special leave to appeal to thePrivy Council
Election Petitions Nos. 4 and 5 of 1947
Privy Council—Election petition—Special leave to appeal—Determination ofElection Court is final—No appeal to Privy Council—ParliamentaryElections Order in Council, 1946—Sections 75, 81 and 82.
No appeal will be entertained by the Privy Council from an order ofan Election Judge under Section 81 of the Parliamentary (Elections)Order in Council, 1946.
Application for special leave to appeal to the Privy Councilfrom an order of the Election Judge in Election Petitions Nos. 4and 5 of 1947. The order of the Election Judge is reported in (1948)49 N. L. B. 169.
Sir Valentine Holmes, K.C., with R. K. Handoo, for the petitioner.
Frank Ghrahan for the Attorney-General.
April 11, 1949. Delivered by Lord Simonds—
Their Lordships have humbly advised His Majesty that in their opinionthis petition for special leave to, appeal should be refused with costs.These are their reasons.
The petitioner George Edmund de Silva prays for special leave toappeal from a determination of Windham J., a Judge of the SupremeCourt of the Island of Ceylon acting as Election Judge under the provisionsof the Order in Council hereafter mentioned, whereby the election ofthe petitioner as member of the House of Representatives for the KandyElectoral District was declared to be void for certain reasons into whichit is unnecessary to enter. When their Lordships had partially consideredthe case on its merits, it appeared that a question of jurisdiction aroseupon which they desired the assistance of Counsel for the Attorney-General of Ceylon. Having now heard full argument upon the question21-L.
1J. N. A 90969-1,040 (8/49)
LORD StMONDS—O. JS. de Silva v. Attorney-General
they are satisfied that the matter in dispute is one in which the Prerogativeright to entertain-an appeal does not exist and that the petition must berefused accordingly.
By an Order in Council called the Ceylon (Parliamentary Elections)Order in Council, 1946, which was made under the authority of the Ceylon(Constitution) Order in Council, 1946, provision was made for the electionof members to serve in the House of Representatives for Ceylon. Thesaid Order in Council after making all the usual and appropriate provisionsin regard to qualification of electors and the holding of elections and otherrelevant matters and having defined corrupt practices and prescribedthat every person who should be guilty of a corrupt practice should onconviction be liable to certain penalties, by s. 76 enacted that the electionof a candidate as a member should be avoided by his conviction for anycorrupt or illegal practice, and by s. 77 that the election of a candidateas a member should be declared to be void on an election petition onany of a number of grounds therein stated which might be proved to thesatisfaction of the election judge. Part V of the Order deals with ElectionPetitions. By section 75 (1) it is provided that every election petitionshall be tried by the Chief Justice or by a judge of the Supreme Courtnominated by the Chief Justice for the purpose, and by section 75 (3) that,for the purpose of summoning or compelling the attendance ofwitnesses at the trial of an election petition, the election judge shall havethe same power, jurisdiction and authority as are possessed and exercisedby the Judge of a District Court in the trial of a civil action and witnessesshall be sworn in the same manner as near as circumstances will admitas in the trial of such an action and shall be subject to the same penaltiesfor the giving of false evidence. Section 81 is as follows “ At the conclusionof the trial of an election petition the election judge shall determinewhether the member whose return or election is complained of, or anyother and what person, was duly returned or elected, or whether theelection was void, and shall certify such determination to the Governor.Upon such certificate being given, such determination shall be final :and the return shall be confirmed or altered or the Governor shall withinone month of such determination by notice in the Government Gazetteorder the holding of an election in the electoral district concerned, as thecase may require, in accordance with such certificate ”.
By s. 82 (1) the election judge was also required to report in writingto the Governor whether any corrupt or illegal practice had or had notbeen committed by or with the knowledge and consent of any candidateat the election or by his agent, and by s. 82 (3) when an election judgereports that a corrupt or illegal practice has been committed by anyperson, that person shall be subject to the same incapacities as if at thedate of the said report he had been convicted of that practice.
At an election held on August 23, 1947, for the election of a memberfor the Kandy Electoral District the petitioner headed the poll with7,942 votes, being closely followed by Mr. Hangaratne (a respondentto this petition) with 7,737 votes. Shortly after two election petitionsypere filed in the Supreme Court of Ceylon questioning the validity of
LORD SXMONDS—O. E. de Silva v. Attorney-General
the election on a number of grounds, and after a protracted trial WindhamJ., a Judge of the Supreme Court, who had been nominated by the ChiefJustice to try them, on February 24, 1948, declared the election of thepetitioner as member for the Kandy Electoral District to be void andthe petitioner to be subject to the incapacities set out in section 58 (2)of the Order in Council and thereupon certified his determination to theGovernor-General who ordered a fresh election to be held. It was dulyheld and Mr. Hangaratne was elected.
It was under these circumstances that the petitioner sought specialleave to appeal from the declaration and determination of Windham J.and that the Attorney-General for Ceylon opposed, contending that anappeal is not competent.
It appears to their Lordships that for them the question is concludedby authority. In Theberge v. Laudry1, where the combined effect of theQuebec Controverted Elections Act, 1875, and the Quebec ElectionAct of the same year was to create a position in all relevant respectssimilar to that of the petitioner under the Ceylon Order in Council, itwas held that no appeal lay to His Majesty in Council and th6 observa-tions made by Lord Cairns L.C. in delivering the opinion of their Lord-ships are exactly applicable to the present case. It is no doubt true, ascounsel for the petitioner urged, that the prerogative right to entertainan appeal is “ taken away only by express words or the necessary intend-ment of a statute or other equivalent act of state ” (see Renoufv. A.G.2),but, as was pointed out in Theberge v. Landry, the preliminary questionmust be asked whether it was ever the intention of creating a tribunalwith the ordinary incident of an appeal to the Crown. In this case asin that it appears to their Lordships that the peculiar nature of thejurisdiction demands that this question should be answered in thenegative. It was contended for the petitioner that different considera-tions apply where, as here, the jurisdiction of the election judge to hearelection petitions is not substituted for that of the legislative bodyitself but is created de novo upon the establishment of that body. Butthis appears to their Lordships to be an unsubstantial distinction and ineffect to be met by the later case of Strickland v. Grima 3. Such a disputeas is here involved concerns the rights and privileges of a legislativeassembly, and, whether that assembly assumes to decide such a disputeitself or it is submitted to the determination of a tribunal establishedfor that purpose, the subject matter is such that the determination mustbe final, demanding immediate action by the proper executive authorityand admitting no appeal to His Majesty in Council. This is the substanceof the authorities to which reference has been made, and it is noteworthythat in accordance with them an appeal in such a dispute has never yetbeen admitted. It is for these reasons that their Lordships have humblytendered their advice to His Majesty that the petition ought not to begranted.
1 (1876) 2 A.G. 102.
Petition dismissed.2 (1936) A.G. 445 at 460.
(1930) A. G. 285.
G. E. DE SILVA, Petitioner, and ATTORNEY-GENERAL et al., Respondnets