N. S. ELLAWELA, Appellant, and P. B. WIJESUNDERA, Respondent

076-NLR-NLR-V-74-N.-S.-ELLAWELA-Appellant-and-P.-B.-WIJESUNDERA-Respondent.pdf


EUnwt la r. M'ijcsumleru
2G 5
Prcsait : H. N. G. Fernando, C.J., Silva, S.P.J., and Alles, J.
N. S. ELLAWELA, Appellant-, and P. B. WIJESUNDERA,Respondent
Elkctjon Pktition Arri-at, No. 3 of 1970Election Petition No. Q of 1070—Painapura (Electoral District No. 139)
Parliamentary election—Disqualification for bein'/ elected as a Member of Parliament—Ceylon (Const it at ion) Order in Council (Cap. 170), s. 13 (?) (/)—Meaning of thewords “completed the serving of a sentence of imprisonment for a term of threemonths ”—Legal effect of a partied remission of sentence under the Prison Pules—Effect of commutation, bit the Covernor-Ccncred, of a part or whole of asentence of imprisonment imposed by a Court—Criminal Procedure Code,ss. 32S (1), 32S (J), 320—Effect- of a free pardon—Letters Patent (Cap. 3SS),Article 10—Interpretation of a statute—Whether the “ parliamentary history ”of the statute may be considered.
R.v section 13(3) (/) of the Ceylon (Constitution) Order in Council, I9-1G(Cap. 379)—
“ A person shall be disqualified for being elected … as a Member of thollouso of Represent at ives . . . if ho is serving or lias, during the period ofseven years immediately preceding, completed the serving of a sentence ofimprisonment (by whatever name called) for a term of threo months orlonger imposed by any court . . . for an Sfio'UO punishable with imprison-ment for a term exceeding twelve months or is under sentence of deathimposed by any such court, or is serving, or has during the period of sevenyears immediately preceding, completed the serving of a sontcnco ofimprisonment for a term of three months or longer awarded in lieu ofexecution of any such sentence :
Provided Hint, if mi}’ person disqualified under this paragraph is granted 1a freo pardon, such disqualification shall cease from the dato on which the lpardon is granted.’’
Tho appellant was convicted of an offenco punishable with imprisonment fora term exceeding twelve months, and was sentenced to imprisonment for a termof three months. After his conviction had been affirmed by tho SupremoCourt in appeal, lie was committed to prison on 2nd March 19GS, and wasreleased after a clay on his entering into a bond pending an appeal to tho PrivyCouncil. Ho was again admitted to prison on 30th April 19GS after leavo toappeal against the conviction was refused by the Privy Council. He remainedin prison until 13th July 1903 on which date ho was discharged from prisonhaving earned a remission under the Prison Rules. In tho result, ho wasactually imprisoned, not for the term of three months specified in tho scntencoimposed on him by « court, but only for a period of 76 days.
Held by Febxaxdo, C.J. and Alles, J. (Silva, S.P.J., dissenting), that,inasmuch ns there was only a partial remission under tho Prison Rules of tholast part of tho term of 3 months’ imprisonment-, the appellant, although ho wasactually imprisoned only for a period of 7G days, completed the serving of ascntenco of three months’ imprisonment within tho meaning of section 13 (3) (/)of tho Constitution. Accordingly, ho was disqualified for election as a Memberof Parliament during the period of 7 years after Ids release from prison.
l.XXIv12
1*K 0750—2.255 (0/71)
2GG-If. X. C. I'HRXAXDO, C'-.-).— H/mn/n1V ij's’ntdcrti
In interpreting Section 13 (3) (/) of the Constitution reference mny be modeto tho background history of Section U (1) (/) of the former Stnto CouncilOrder in Council.
jElECTION Petition -Appeal No. 3 of 1970—llatnapura (EloetoralDistrict No. 139).
C. Thiagnlingam, Q.G., with JInurr.cn Scnrrinittie. Prins Gtinnsckera,Peter Jayasekcra and Pranithn ilc Alicia, for tho respondent-appellant.
Jt. P. Nalliah, with U. A. S. Pet era anil I’. Shan muyaiialhun, for thopotitioncr-rospondont.
Cur. talc. vull.
Juno 10, 1971.11. N. G. 1'khn.m>o, C.J.—-
The appellant in tin’s ease was convicted of an offence jmnishablo withimprisonment- for a term longer than 12 months, and was sentencedto imprisonment for a tern; of three months. After his conviction hadbeen affirmed by the Supreme Court in appeal, and after leave to appealagainst that conviction was refused by the Privy Council, he was admittedto Prison on 30th April 10l>S ; and remained in Prison until 13th July19GS on which date he was discharged from Prison having earned aremission. In the result, ho was actually imprisoned, not for tho term ofthree months specified in the sentence imposed on him, but only for aperiod of 70 days.
The question vliieh arises in this appeal is uhot her the appellant wasduring the period of 7 years following the date of his discharge fromPrison, disqualified for ejection as a Mend or of Parliament – The learnedtrial Judge hold that lie was so disqualified. The disqualilicat ion underconsideration is imposed in paragraph (f) of sub-sect ion (3) of sect ion 13of tho Constitution, and the. first two grounds of disqualilicat ioncontemplated in that paragraph aro the following ;—
"A person shall be disqualified lor icing elected as a
-Member of tho House of Peprcscnlatives—
If ho is serving a sent cm c of imprisonment for a term of three
months or longer imj o.-cd by any Courtfor an
offence punishable with imprisonment for a term exceeding twolvomonths—
Or if he lias, during tho j oi-fod «■!'.-oven years immediately preceding,completed t he serving of a sememe of imprisonment for a term oftluee months or longer imposed by any Corn!for an
H. X. G. FERXAXDO, O.-T.—El/aivrfa v. Wjcsumlera‘2G?
offence punishable with imprisonment. for a term exceeding twelvemonths.”
* * * *
“Provided I hat, if any person disqualified under this paragraph isgranted a free pardon, sucli disqualification shall cease from the dalean which Iho pardon is granted.”
The effect of the ground of disqualification secondly mentioned abovewas considered in the case of Sennit itncccra v. Jeitjcutnilenu. h Jn thatcase a person had been sentenced to imprisonment for a poriod of ojioyear, but by reason of a remission of sentence lie was released after hehad been in prison for a period of 3 months and a few more days, and thequestion which arose for determination was whether lie had “ completedthe serving of a sentence of imprisonment imposed by tho CourtSansoni C.J. and Tambiah J. rojoctod tho contention' that a personcannot bo said to have completed tho serving of the scntenco imposedunless he was imprisoned for every single day of tho term specified in thosentence. Sansoni C.J. expressed his opinion as follows :—
“ All that tho words mean is that the prisoner should have finishedsol ving the sentence in tho sense that there should be nothing loft forhim to do in the matter of serving it. Ho obviously cannot insist onremaining in prison if tho law roquiros that he be released. TJioserving of the scntenco has, then, in'every respect-been completed. Jfone were to adopt tho other view thore would be few cases whore aprisoner could bo said to have completed serving his sentence of.imprisonment, because in the groat majority of cases there would beremissions I13' operation of law, viz., by reason of good conduct. Thewords used are not ‘served ovory day of ilie term of tho sentenceof imprisonment ’ or similar words ; but if the argument for thoappellant is to bo accepted that is how the provision should havo beendrafted.”
Tambiah J. in holding that tho term of imprisonment passed by the -Court had been completed said that “a person completed the service ofhis sentence in prison if he has served part of it and had been released bya competent authority by operation of JawSirimane J. in a dissentingjudgment was of opinion that a person who is sentenced to a period ofimprisonment “ must sorve that poriod of imprisonment before ho can bosaid to havo completed serving that senlonce In his opinion aremission of part of a sentence has tho result that a poison obtains hisrcloase from prison “not as a result of having completed the servingof tho sentence of imprisonment, but having served a part of thatsentence and having earned a remission of the balance which ho does nothavo to serve.”
1 (19GG) GO N. h. It. 241.
2CS
H. N. G. FERXAXDO, C.J.-—Ellauela v. Wijcsumlera
With much respect I find myself in agreement with the majority of theBench which decided the case of Samaraweera v. Jayewardena. Tlioro isone matter which I would emphasizo more strongly than was done inthat case.'
Tho proviso to paragraph {/) states that if a person disqualified isgranted a free pardon, such disqualification shall cease from the date onwhich tho pardon is granted. But there is no reference in tho proviso tocasos of remission of sentence, despite the fact that it is well known thatremissions are very commonly earned. If tho argument be correctthat a person who serves only a remitted sentence does not completethe service of tho sentence imposed by tho Court, then in effect thodisqualification will cease automatically on the date of release upon aremission.. If that bo so, wo would have tho surprising result that amere remission would have the identical effect which the Legislaturethought fit to attach expressly to a free pardon.
The Prerogative power of pardon is declared in Avticlo 10 of tho LettersPatent (Cap. 3SS), under which tho Governor-General may grant to aconvicted offender, " a pardon, either free or subject to lawful conditions ”.Now tho Proviso to s. 13(3)(/) of the Constitution is restricted in termsonly to a free pardon ; so that a conditional pardon, even though it hasthe effect of terminating a period of imprisonment, does not under thoProviso relievo a person of tho disqualification contained in paragraph (/).But wo are invited in this appeal to hold that the earning by tho appellantunder Prison Rules of a remission of a fow days of t ho term of his sentenceconferred on him an advantago which tho Proviso docs not attach evento tho grant of a conditional pardon by tho Governor-Genoral in thoexerciso of prerogative power.
Consideration of the express enactment in tho Proviso to paragraph (/)strongly negatives any intention that tho remission earned in this caseshould have tho effect which is claimed by Counsel for tho appellant.
Tho correctness of the viow expressed by Sansoni C. J. and Tambiah J.that a person, who is released upon a remission of part of a sentence ofimprisonment, nevertheless " completes tho serving of the sentence ” isborne out by observations made by the Supreme Court of India in SuratChandra v. Khayendmnath1 as to tho legal effect of a remission in Indian' and English law :—
"An order of remission does not wipe out tho offence, it also doesnot wipe out the.conviction.”
"An order of remission thus docs not in any way interfero with thoorder of tho court ; it affects only tho execution of the sentence passedby the court and frees the convicted person from his liability to undergo
1 (10G1) A. I. It. Vol. IS {S. C. 334).
H. X. G. FERXAXDO, C.J.—Eliaucla v. Wijesimdcra
269
tho full term of imprisonment inflicted by the Court, though the orderof conviction and sent cm c passed by the Court still stands as it was.Tho power to grant remission is executive power and cannot have theeffect which the order of an appollate or revisional court Mould have ofreducing tho sentence passed by tho trial court and substituting in itsplaco tho reduced sentence adjudged by tho appellate or rovisionalcourt.”
f< In law tho order of remission merely means that tho rest of thesentence need not be undergone, leaving the order of conviction by thoCourt and the sentence passed by it untouched.”
Sirimane J. in his dissenting judgment cited a statement of Bose J. inan earlier Indian case that “ tho effect of an order of remission is to M'ipeout the remitted portion of the sentence altogether and not merely to
suspend its operation” This statement Mas considered in the
moro recent Supreme Court decision and tho folloM'ing comment was.made :—
r< That case (tho one decided by Bose J.) is no authority for tho viewthat the order of remission amounts to changing tho sentence passedby a competent court and substituting therefor the sentence ofimprisonment already vmdergono up to the date of release folloningthe order of remission.”
It must be noted that the facts of the case of Samaraiueera, v. Jaya-ivardena are distinguishable from.the present facts. In the former case,the person concerned had in fact been in prison for a period much longerthan 3 months. Both Sansoni C.J. and Tambiah J. noted tho absurditywhich might result from a construction that a person M'lio is sentenced toa long term of imprisonment, and M ho is actually in prison also for a termlonger than 3 months, M ill not be disqualified if ho is ultimately relea,sedon remission. Such an absurdity however does not aviso in tho presenteaso, for hero tho appellant M'as actually in prison for a period of loss than3 mouths. Counsel for the appellant in the present case relied verystrongly on this distinction, arguing that even if the majority judgmentsin Samaraweera v. Jayewardena are correct on the facts of that case,paragraph {/) has to be differently construed in relation to a case in whichby reason of a remission a person sentenced to imprisonment is actuallyin prison only for a term M'hich is less than 3 months..
In this connection, my brother Silva suggested during the argument ■that tho “ stigma ” in consequence of M'hich tho disqualification M'asintended to attach has two features : first, tho fact "that a person isconvicted of a gravo offence, and second, that he is actually " a jail bird ”for more than 3 months. With respect, the languago of tho section doesnot reveal that this second feature Mas in contemplation. Undoubtedlytho fact of a conviction for a grave offence is of prime importance and is
!*•K 6750 (0/71)'
270H. N. G. FERNANDO, C.J.—Ellawela V. Wijesundera
tho first feature of the “stigma”; but the second matter expressly_ mentioned in paragraph (/) is not the actual period of detention in prison,but the imposition bp the Court of a sentence of imprisonment for a term of3 months or longer. These are clearly tuo features of tho “ stigmaEven if there was in contemplation tho additional feature, that a personmust actually be in prison for a term of 3 months, this can only be impliedif the language of the paragraph so permits.
I have set out earlier in this judgment the two grounds of disqualificationfirstly mentioned in paragraph (/). On examination of these two grounds,it will be found that the paragraph in its application to any convictedperson, contains really only one ground of disqualification operative atdifferent stages.
Paragraph (/) firstly enacts that a person is disqualified if he is servinga sentence of imprisonment for a term of 3 months or longer imposed bya Court for an offence punishable with imprisonment for a term exceeding12 months. It is readily apparent that all the w ords and phrases whichfollowr tho word “ sentence ” are necessary to describe the requisites of adisqualifying sentence. It is obvious that, to be a disqualifying sentence,a sontenco must be one—
of imprisonment,
for a term of 3 months or longer,
imposed by a Court,
for an offence punishable with imprisonment for a termexceeding 12 months.
Counsel for the appellant was compelled to agreo that when adisqualifying sentence is imposed, the first ground of disqualificationoperates because a person is serving the imposed sentence, and that thepossibility of a subsequent remission does not affect the existence of thedisqualification. Counsel had also to agree that tho correct grammaticalanaylsfs of tho language of tho first ground of disqualification is that thephrase “ for a term of 3 months or longer ” has grammatically to be readwith “ sentence ”, and not that this phrase is to bo read with the words“ is sorving ”. Thus it is clear that thus far it is not permissible to readtho language as being “ is serving for a term of 3 months or longer ”.
Novertholoss, Counsel contended that tho language must bo read inthat vorv manner when we como to consider the second ground ofdisqualification, namely (as now italicized) that a person “ has completedthe serving of a sentence of imprisonment for a term of 3 months or longerimposed by a Court ”. Such a reading will of course support the argumentthat tho 7-year disqualification attaches only to a person who has actuallybeen in prison for more than 3 months. But so to read tho languagewould be to transgress rules both of Grammar and of Legal Interpretation.
H. X. G. FERXAXDO, C.J.—K Hand a v. Wijesandcru
271
Tlicro is hero a sentence with a subject (“ ho ”), two alternative verbs(“ is serving ”) and (“has completed the serving of”), and an object(“ a sentence ”). If then the words and phrases which follow theword “ sentence ” have been used merely to describe the requisites of thesentence which a person is serving, how can it be said that those verywords and plirases are used to describe the period of the sentence which aperson has served, and not the requisites of the sentence which he hasserved ?
I am satisfied from the language of paragraph (/) that the 7-yeardisqualification attaches to a person who has completed the serving of adisqualifying sentonce imposed bij the Court. Sirimane J. himself in hisdissenting judgment stated the disqualification in that form. Considera-tion of the history of pur law on this matter of disqualification confirmsthe construction just stated.
Soction 9 (1) (/) of the Stato Council Order in Council provided that aperson is disqualified for election to the State Council “ if he is serving a
sentence of penal servitude or imprisonment imposed by any Court
for an offence punishable with hard labour or rigorous imprisonment fora term exceeding 12 months. Under that provision the disqualificationattached only while a person " is serving a sentence ”, and there was nodisqualification during any period after release from prison. Before thepresent Constitution was enacted the Board of Ministers of the then StateCouncil proposed what is known as “the Minister’s draft” of a newConstitution, and it was in section 19 of that draft that a proposal wasmade that the disqualification should attach upon a conviction and asentence for a terra of imprisonment for 3 months or longer, and for thecontinuation of the disqualification for a term of 7 years after thetermination of the imprisonment. This proposal was accepted inparagraph 31S of the Soulbury Report, but the Commissioners thought itpreferable that the form of the disqualification bo the same as in section 9of the Stato Council Order in Council. This explains why, when s. 13 (3)(/) of the Constitution was drafted, the proposal of the Ministers for thesubsequent 7-year disqualification was given effect by means of anamendment of the language employed in section 9 of the State CouncilOrder in Council. The draftsman’s object therefore was to change theformer law under which a porson was disqualified only while serving a“ disqualifying sentence ”, and to provide that under the new Jaw such aporson will also be disqualified for 7 years after the termination of theimprisonment. This further disqualification was expressed in the
language “after ho had completed the serving of a sentence
Considering the purposes for which and the occasion on which thislanguage was employed, it seems to mo that tho intontion was merely tostate that a person convicted of a grave offence and sentenced to a termof imprisonment for 3 months or longer will bo disqualified while sorvingthat sontenco and will continue to bo disqualified for 7 3-oars after heceases to serve that sentence.
272
H. N. G. FERNANDO, C.J.—Ellawela v. Wijcsundera
Thus 'the language of tho section doos not intrinsically reveal any-intention that the actual period spent in prison is a matter, re levantto the disqualification ; and the' history of tho law relating to thedisqualification establishes only an intention to continue thoperiod of disqualification beyond the point when a person is serving adisqualifying sentence.
For these reasons I hold that although tho appellant was actuallyimprisoned only for a period of 76 days, he completed tho serving of thesentence for a form of 3 months imposed by tho Court, and that he wasdisqualified for election as a Member of Parliament during tho period of7 years after his release from prison.
Counsel for the appellant considered it harsh and unreasonable thattho appellant has been imseated despite his having been elected by avery large majority of votes. This was one ground upon which Counselurged that paragraph (/) should bo construed in a mannor favourable tothe appellant. It will perhaps be helpful to note in this connection thatunder the Indian Law (the Representation of the People Act 1951), adisqualifying sentence has a similar “ har^h ” operation. Such asentence disqualifies a person for election to the Legislature for 5 yearsafter release from prison, despite the fact that a part of the sentence maybe remitted.
The appeal is dismissed with costs.
POST SCRIPT
I have read, tho dissenting judgment of my brother Silva, and I sharethe regret which he expresses at our inability to reach agreement on thedecision of this appeal.
My brother’s conclusions appear to depend much oh his considerationof cases in which sentences of death or of imprisonment are commuted, bythe Governor-General. But my judgment did not tako such cases intoconsideration, because the argumonts of Counsel for the appellant didnot (according to my recollection) depend on a consideration of suchcases. Sinco silence on my part as to tho application of paragraph (/) ofs. 13(3) in such cases of commutation might cause somo misunderstandingas to my own views, I think it desirable to add this post-script to myjudgment. I
I have first to emphasize that the solo question which is decided bymy judgment is that the appellant in the instant case completed thoserving of the sentence of imprisonment for a term of three monthsImposed by a Court, despite the fact that he was actually released fromprison, on account of a remission earned under the Prison rules, after hehad been imprisoned only for 76 days.
H. X. G. FERNANDO, C.J.—Ellawela v. Wijcsundera
273
That being so, my judgment must not in any future case be relied on insupport of prepositions which I have not stated or even considered.Thus :—
My judgment does not express or imply the opinion that a
person sentenced to death, but whose death sentence i3commuted by the Governor-General to one of imprisonment,is serving or at some time completes the serving of thedeath sentence. My eyes alone would have aided me to avertsuch a disaster : because paragraph (/) states expressly thatsuch a person is not serving the death sentence, but isserving the “ sentence of imprisonment awarded in lieu ofexecution of the sentence ” of death.
My judgment does not suggest in any way that, if a sentence for a
term of three months or longer imposed on a person by a Courtis commuted by the Governor-General to a term say of twomonths, the person must be regarded as having completed theserving of the sentence imposed by the Court. Far fromexpressing any such opinion, I have not once in my judgmentused the word “ commute ” or the word “ commutation ”,and I have nowhere referred to the exercise of the powers ofthe Governor-General to commute sentences.
Indeed, haying now given some consideration to the consequence ofthe commutation by the Governor-General of an original sentence ofimprisonment, 1 am much inclined to the opinion that, in the languageexpressed in paragraph (/), the convicted person then serves, not thesentence imposed by the Court, but instead the sentence “ awarded(by the Governor-General) in lieu of the execution of such (original)sentences ”.
The opinions which I have just stated do not depend on any impli-cations as to the intention of the Legislature, but instead on the expressprovisions of the paragraph (/). This becomes apparent when paragraph (f)is re-produced with only the insertion of marks showing the separateeases of disqualification stated in the paragraph :—
“(f) if he/is serving or has, during the period of seven yearsimmediately preceding, completed the serving of a sentence of imprison-ment (by whatever name called) for a term of three months or longerimposed by any court in any part of Her Majesty’s dominion or in anyterritory under Her Majesty’s protection or in any territory in whichHer Majesty has from time to' time jurisdiction, for an offence punish-able with imprisonment for a term exceeding twelve months, or/isunder sentence of death imposed by any such court, or/is serving, orhas during the period of seven j ears immediately preceding, completedthe serving of a sentence of imprisonment for a term of three monthsor longer awarded in lieu of execution of any such sentence.”
274
H. N. G. FER.VANDO, C.J.—Ellawela v. Wijtsundcra
The third case of disqualification stated in the paragraph is the case of
a person who is serving or has completed the serving of “ a
sentence of imprisonment for a term of three months or longer awardedin lieu of the execution of any such sentence ”. I have little or no doubtthat the words “ any such sentence ” here refer back, not only to asentence of death, which is mentioned in the second ease, stated in theparagraph, but also to any sentence mentioned in the first case stated inthe paragraph.
It is obvious that, if a sentence of death is commuted to one ofimprisonment, the offender will be disqualified only if the sentenceawarded in commutation is for a period of three months or longer.Equally, in my opinion, if a sentence of imprisonment for some longperiod is commuted, the offender will be disqualified only if thesentence awarded in commutation is for a term of three months orlonger. In both these cases of commutation, the offender serves, not thesentence imposed by the Court, but instead that awarded of theGovernor-General in commutation, and it is the serving of the sentenceso aivarded which causes the disqualification.
Thus it seems to me that the Legislature has expressly contemplatedthat where there is commutation, the question of disqualification mustdepend on the term specified in the sentence awarded in commutationby the Governor-General.
But in my view this analysis can afford an additional and even decisiveground for rejecting the contention of Counsel for the appellant in thiscase. Since express provision in paragraph (/) contemplates that acommuted sentence awarded by the Governor-General is distinct fromand displaces the original sentence, then the maxim expressio unius estexclusio alterius may well be applicable to prevent a Court from readinginto the paragraph any implication that a mere remission of a part of anoriginal sentence also constitutes the “ award ” of a new and distinctsentence. A remission under the Prison Rules is not the award or theimposition of a sentence, but only at the best a cancellation of the lastpart of the term of a sentence imposed by a Court. Until the date ofrelease on remission the offender is undoubtedly* serving the court’ssentence because no other sentence has been awarded against him.
My judgment gave no consideration to the question whether aperson must be regarded, for the purposes of paragraph (/), asserving or having served a sentence imposed by a Court, if in factthe wholo of the sentence is remitted by the Governor-General.
If there is such a total remission of the Court’s sentence, but theperson concerned is nevertheless received into Prison because ofadministrative delays or bungling, the true legal position may-very well be that the Court’s sentence is not served at allbecause the order of complete remission absolves the person fromthe legal liability' to serve it, and that accordingly the personnever even commences to be disqualified by paragraph (/).
G. P. A. SILVA, S.P.J.—Ellawela v. U'ijesundera275
But in a case like the present one, in which there is only a partialremission under the Prison Rules of the last part of a term of imprison-ment for a term of three months imposed by a Court, I have not theslightest doubt that during his period of actual detention the person isserving the sentence imposed by the Court and is disqualified during thatperiod for election to Parliament. My judgment has stated my reasonsfor the conclusion that the further or continued disqualification for7 years thereafter attaches despite the partial remission of the term of theCourt’s sentence.
G. P. A. Silva, S.P.J.—
I have had the advantage of perusing the judgment prepared byMy Lord the Chief Justice and it is. with regret that I have to disagreewith him.
It is common ground in this case that the respondent to the originalElection Petition, Mr. Narnia Ellawela, who is the appellant in this Court,was, during the period of seven years immediately preceding the election,convicted of offences punishable with imprisonment for a term exceedingtwelve months and sentenced to a term of 3 months imprisonment. It isalso agreed on both sides that the appellant in fact served this sentenceand was lawfully released after being in prison for 76 days. The onlycontroversial question that arises for consideration in this appeal thereforeis whether, by reason of the fact that the sentence of three monthsimprisonment imposed by Court was physically reduced by some lawfulprocess of remission to the shorter period of 76 days, the appellant freedhimself from the disqualification for election as a Member of the House ofRepresentatives in terms of section 13 (3) (/) of the Ceylon (Constitution)Order in Council, or whether the disqualification attached to him, despitesuch reduction, by reason of the original sentence.
In order to reach a decision in this matter it is necessary in the firstplace to consider the object of this provision. It is fairly clear that thelegislature intended by this provision to attach to an aspirant to theHouse of Representatives or the Senate a disqualifying stigma. Thisstigma would attach to a person who has not merely been convicted of anoffence punishable with over 12 months imprisonment but also is servingor has completed the serving of a sentence of imprisonment for a term of3 months or longer imposed by any Court. The essence of the disquali-fication thus lies in the duration of the term the person has served inprison and not the mere conviction. I shall state why I say this. Onthe same set of facts, for instance, if an adult and a 3'oung person areconvicted in the same case where the offence is punishable with imprison-ment for over twelve months and the Court decides to avoid a prisonsentence for the 3'oung person and deals with him differently while theadult is sentenced to imprisonment and he completes serving the sentencefor a term of 3 months, the latter will be disqualified from election as aMember of Parliament but not the former. Similarly a person who hascompleted the serving of a sentence of imprisonment in respect of a like
270
G. P. A. SILVA, S.P.J.—Ellaurela v. JYijcsundera
offence for a term of three months is disqualified wliile one who hascompleted serving a sentence for a term of two and a half months is not.The accent then, as I sec it, is placed on the duration of the period ofimprisonment which the person has completed serving as a result of thesentence and not on the conviction of an offence, however grave.
The fact that the limit of this duration has been fixed arbitrarily bythe legislature and not been decided by reference to any particularnorm fortifies me in my view that the emphasis is on the period ofincarceration.
I am further persuaded in this belief by the thought that the legislaturehas not taken the course of laying down the conviction and theimposition of a* term of imprisonment only as the ground of disqualifi-cation but made the completion of a certain terra of imprisonment asine qua non of the disqualification. If the accent was on the sentencefor a particular term, the legislature could certainly have done so withgreater clarity and economy of language by providing that a person whois convicted and sentenced to imprisonment for a term of 3 months orlonger in respect of an offence punishable with imprisonment exceeding12 .months shall, be disqualified for 7 years, the disqualification tocommence from the date he is released- from prison after serving hissentence.
The view expressed by My Lord the Chief Justice is that the wordsfor a term of three months or longer ” as well as the other terms andphrases that follow the word sentence ” in the section describe therequisites of a disqualifying sentence. Even assuming that this view iscorrect, when the actual period of a sentence imposed by Court is reduced .in its execution to a shorter period by operation of any rule of law or bya process recognised by law, in my view the court’s scntcuce-assumes adifferent form and the sentence which the person on wliom it is imposedserves is the latter sentence. If for instance, a sentence of one year’simprisonment is reduced by the process of remission exercised by theGovernor-General in terms of section 32S (1) of the Criminal ProcedureCode to a period of six months, the sentence which tlvc person concernedserves would be a term of six months. In this view of the matter therewould be justification in coming to the conclusion that, in the process ofchange from one sentence to another of a different kind or differentduration according to law, the original sentence imposed by any Court ismetamorphosed into another sentence which is actually served and that,at that stage, the sentence which is served becomes the sentence that isimposed on the prisoner and a divergence between the sentence imposedand the sentence served does not arise. One must never overlook ininterpreting this section, that the Sovereign or Her representative or anyother authority in exercising the right of reducing the sentence imposedby the Court by the substitution of another sentence or by remission of apart of the sentence, docs so only in terms of powers provided for by lawsuch as arc found in section 32S or 329 of the Criminal Procedure Codeand the Prison Rules. It is to be noted that even the royal prerogative
G. P. A. SILVA, S.P.J.—Eltaucla v. Wijesunclcra
2 77
13 mentioned in section 32S (4) of the Criminal Procedure Code, eventhough specific provision need not have been made for it, and legalrecognition is given to the right of the Queen to grant pardons, reprieves,respites or remissions of punishments.. It is however only a Court thatcan in the first instance convict and impose a sentence on any person andhence the necessity remains to refer in section 13 (3) (/) of the Order inCouncil to the imposition of a sentence by anjr Court.
The submission was made during the argument of this appeal that,even if a person sentenced by any Court to a particular term of imprison-ment enters the portals of the prison before an order of remission of thewhole of the sentence by the Governor-General—as distinct from apardon—readies him and he is thereafter released from prison after afew days when such order is received by the prison authorities, j’et in lawhe lias completed the particular term of imprisonment imposed by theCourt. I have great difficult}' in accepting this submission To my wayof thinking, whether it be a case in which the Governor-General, in terrasof section 32S (1) of the Criminal Procedure Code, has remitted the wholeof the prison sentence but his order of remission does not reach the prisonauthorities until the prisoner has actually served a short period ofimprisonment or in a case in which the Governor-General remits a part ofthe sentence of imprisonment in terms of the same section^ after theprisoner lias partially served the, sentence, the duration of the sentenceserved by the prisoner is the period lie has in fact been in prison and notthe original sentence of the court. The principle is unaffected whetherthe remission of a part of the sentence is granted by the Queen or on anorder made b}' the Governor-General or in terms of Prison Pules, whichare the three modes of remission recognised by our law. The submissionof counsel to which I have referred was presumably made because thefirst step in the execution of the sentence of imprisonment has been takenwhen the person sentenced enters the prison. From whichever angle Iconsider this matter 1 am unable to persuade myself to accept thisproposition. Totakenn extreme case, such an interpretation will compelone to the absurd situation that if such a person who has been sentencedto a term of imprisonment by a Court reports at the prison and is merelytaken charge of by the i^'ison authorities and is even immediatelyreleased thereafter as a result of the order of remission by the Governor-General, he lias nevertheless completed serving the sentence of imprison-ment imposed by the Court. That would mean that.he has completed. the serving of the sentence even before he has commenced to serve it.To my mind the proposition that a person who enters prison and returnshome the same day or the next day or even after serving a part of thesentence as a result of a remission of a part of it has completed his fullterm of imprisonment, in the sense of having served a term of the sameduration as imposed by the court, is unrealistic and not in accord withreason, although he has completed serving his sentence in the sense thathe has no further liability thereunder. I shall have occasion to advert tothi3 aspect later on.•
2 7S
G- 1*. A. SILVA, iS.V‘.J.—EUmvthi t Wijt'$un*lcra
I stated earlier that-, if the sentence imposed by a court is reduced by aprocess recognised by law to a shorter term, the actual term which theperson sentenced serves is the latter sentence. I should like now toexamine further the implications of a remission granted by one of theprocesses sanctioned by law namely, a remission by the Governor-General,as similar considerations would apply to a sentence reduced by any otherlegal process. A further question that arises for consideration in thisconnection is whether the Governor-General's order of remission orcommutation too constitutes a sentence. If that were so, there wouldbe more justification for the conclusion that when a sentence of the court,is remitted or commuted the original sentence imposed by the courtassumes a different form and that a person who has been sentencedto a term of imprisonment by a court and whose sentence has beencommuted or remitted to a shorter term serves the latter sentence.Sections 32S (1) and 329 of the Criminal Procedure Code provide asfollows :—
(1) When any person has been sentenced to punishment for anoffence the Governor-General may at any time without conditions orupon ail}- conditions which the person sentenced accepts suspend theexecution of his sentence or remit the whole or any part of the punishmentto which he has been sentenced.”
“ The Governor-General may, without the consent of the personsentenced, commute any one of the following sentences for any of thecommuted sentences indicated.”
The sentences indicated arc :—sentence of death to a sentence of rigorousimprisonment for life or for any other term ; rigorous imprisonment to anylesscr term of rigorous imprisonment or any term of simple imprisonmentnot exceeding the term to which such person might have been sentenced.Whenever the Governor-General acts in pursuance of these powers he isundoubtedly imposing on the persons concerned his own sentences eventhough he had no power to do so in the first instance. If, in tlie exerciseof such powers for instance, the imprisonment of a person for six monthsimposed by a Court is commuted to one of two months I should have nohesitation in. holding that such person is not disqualified from beingelected as a Member of the House of Representatives even though theoriginal sentence of tIre Court was a term of six months imprisonment.
To decide differently would be to disregard the specific provisions of ourown law conferring certain powers on the Governor-General. If this viewis correct as I believe it to be, when the section refers to the serving of asentence such sentence would be synonymous with the actual periodserved by a prisoner in respect of his sentence and no further question canarise as to any variance between the sentence imposed b}- the Court andthe sentence served. 12veil according to this different line of approach tothe problem, the conclusion"is irresistible that the material considerationin this matter is the actual duration of the term of imprisonment theperson has served and not the term of the sentence of imprisonment attho time it is imposed or pronounced bj- the Court. This seems to me to
G. P. .A. S1LV.A, S.P.J.—Eilauclo v. W’ijcsundera
279
stand to reason ; for, a sentence imposed by a Court can be varied orreduced for a multiplicity of reasons recognised by law such as remissionsfor industry and good conduct according to prison rules, remissionsby the Governor-General, commutations bj' the Governor-General orremissions by Her Majesty. Even without the necessity of a strict inter-pretation, therefore, the words of section 13(3) (/) “has completed theserving of a sentence of imprisonment for a term of three months orlonger ” would in these circumstances mean, the actual period of incar-ceration which a person has completed serving. I feel reassured of thecorrectness of this view even by reason of the last few words of section13 (3) (/) “ completed the serving of the sentence of imprisonment for aterm of three months or longer awarded in lieu of execution of any suchsentence I have not the slightest doubt that the sentence referred toin these concluding lines can only refer under our law to the sentenceimposed by the Governor-General; for, it is only he who can impose asentence in lieu of the execution of “ such ” sentence, the word “ such ”having reference to the sentence of death imposed by the Court earliermentioned. This provision in the last four lines of the section wouldthus mean that, if the sentence imposed on the person by the Governor-General in lieu of the death sentence imposed by a Court is less thanthree months in any particular case, such person would not suffer fromthe disqualification referred to in the section. If the sentence reducedas a result of the intervention of the Governor-General in terms of thelaw is the material sentence for the purposes of this part of the sectionI can find no valid reason to consider differently a sentence reduced to ashorter term (than what was originally imposed by a Court) in terms ofany other provision of law such as the Prison Rules. There would thusbe no warrant to consider the 76 days imprisonment served by theappellant as a term of three months imprisonment, in the absence of anygood ground to show that the term of three months was reduced to 76 daysfor a reason which was not founded on law. The appellant is thereforenot liable to the disqualification which is imposed by the section.
There was, during the argument of this appeal, some speculation as tothe meaning of “ is serving ” in this section and whether a personsentenced to a term of imprisonment for a term of three months by anyCourt in respect of a conviction for an offence punishable with over12 months imprisonment is not in any event disqualified if he is in theprocess of serving that sentence. I have no difficulty in answering thisquestion in the affirmative and would add that the person here suffers adisadvantage that the person who has served such a sentence would not,if the latter has, by reason of a remission, in fact served for less thanthree months and been released. The same handicap would confront aperson who is under sentence of death at the time of an election. Hewill obviously be disqualified from being elected if at the time of theelection he is under a sentence of death although, after considerationof an application by" him, the Governor-General maiy some time latercommute the sentence of death to one of two months imprisonment in
G. P. A. SILVA, S.P.J.—Ellauela v. Wijcsundcra –
2S0
lieu thereof after which commutation he will be free of the disqualifica-tion attaching to the section. The reason for the difference in theimpact of the sentence in each case is that, when a person eithercommences to serve a sentence of three months imprisonment or moreimposed by a court or is under sentence of death, there is no necessarypresumption that the respective sentences will cither be remitted orcommuted ;for, a remission or commutation does not occur as a matterof course. One has therefore to assume that the sentence pronouncedby the court in each instance will take effect—as indeed it can.
Unless one. places the construction which I have sought to do on theeffect of a remission or commutation, one would meet with seriousinconsistencies in interpreting this section. It was agreed by the fullCourt during the argument that if the whole of a disqualifying sentence(of any person) is remitted by the Governor-General before he entersprison he is not disqualified under this provision because he does not inthat event serve a sentence of imprisonment. It seems to 3ne that if theyardstick for disqualification is the imposition of a disqualifying sentencebj’ the Court and the remission of a part of such sentence which reducesit to less than three months is not to be taken into account in consideringthe disqualification, as observed by my Lord the Chief Justice, therewould be no logical reason to take into account the remission of the wholeof the prison sentence when the person convicted will not enter prison atall. If we do, we shall be faced with the inconsistent position that whena person serves a shorter term than three months as a result of aremission, the court sentence being three months, we disregard theremission but when he docs not serve a prison sentence at all as a resultof a remission we give full effect to it. Again, according to section 13 (3) (/)itself, when a death sentence is commuted to a sentence of imprisonmentby the Governor-General, the yardstick for disqualification or otherwiseis the sentence imposc-cl by the Governor-General and not the sentenceimposed by the Court. If the Court s sentence is the decisive factor forthe purpose of the disqualification these varied impacts cannot occurconsequent on a remission. This situation which constantly baflled methroughout the argument of this appeal, docs not arise if, as I havepointed out earlier, the court’s sentence, as modified by any remission, isconsidered to be the decisive factor for disqualification in the interpre-tation of the section. It is hardly necessary to emphasise that theinterpretation placed by a court on any Statute must be capable ofconsistency in every situation that will arise thereunder. I
I would now approach this problem from yet another angle. Iquestioned counsel for the respondent during his reply whether he couldpoint to any serious fallacy in the view that the section means that inorder to suffer the disqualification a person should not only be sentencedto a term of three months or longer but should in fact serve a minimumperiod of three months. I asked this question as I felt that the crux ofthe disqualification lay in the physical duration of the imprisonment.Counsel ventured a repfy which was not a complete answer. A useful
G. P. A. SILVA, S.P.J.—Ellaicela v. Wijcsundcra
2SI
way of testing this proposition would be to pose the question whether aperson who, being convicted of an appropriate offence, is sentenced to aterm of three months’ imprisonment and serves the entire period of thissentence is in the same position as one who, in similar circumstances,earns a remission and is released before the end of the three months as. inthe case of the appellant. In my judgment the view is irresistible that adistinction has to be made between the two. For, in the second case thesentence was reduced by a process sanctioned by our own Jaw and whenit turned out to be a sentence short of three months, the stigma attachingto a period of three months’ imprisonment ceased to exist and the personwho suffered this sentence is, to my mind, not disqualified under section13 (3) (/) while the one who served the entire period of three months isdisqualified. For, it must bo presumed that the authority other thanthe court, in exercising the power that the law had conferred, has doneso after full consideration of the merits, and therefore the case of theperson whose sentence of imprisonment of three months is reduced to ashorter period should be distinguished from the other whose sentenceof three months is left intact. It is only on this principle that a personwho has been sentenced to death by the Supreme Court is cleared ofhis disqualification in certain dreumstances, namely, where the Governor-General has awarded the sentence of imprisonment of less than threemonths in lieu of the execution of the sentence of death. If thisis possible, a fortiori a person whose sentence of three months is reducedto a shorter term should enjoy the same benefit. If this was not theintention of the Legislature, it occurs to me that it could with the leastdifficulty have said that a person is disqualified if he is convicted andsentenced to a period of three months or longer in respect of an offencewhich is punishable with over twelve months’ imprisonment, withoutreference to the serving of the sentence. This is a further considerationwhich supports the view that the words “ complete the serving of asentence for a term of three months or longer ” hi the section contemplatethe physical serving of a sentence for three months or more, whateverthe sentence may be. The case cited by learned counsel for therespondent, Khagevdranath Nath v. Vmesh Chandra Nath, 1in fact supports my view and the corresponding section inLidia illustrates the form of legislation which I have in mind. So doesthe decision on which both counsel relied for different purposes : SaratChandra Rah ha v. Khagendranath Nath. 2 Section 7 of the Indian Actwhich deals with the subject of disqualification for membership ofParliament says :A person shall be disqualified for being chosen as,
and for being a Member of either House of Parliament or of theLegislative Assembly or Legislative Council of a State ….
If, whether before or after the commencement of the Constitution,he has been convicted by a Court of India of any offence and sentencedto imprisonment for not less than two years, unless a period of fiveyears, or such less period as tho Election Commission may allow inany particular case, has elapsed since release. ”,
1 A. I. R/1958 Assam, 183.'•* A. I. It. 1961 S. C. 334.
2S2
G. P. A. SILVA, S.P.J.—Kllaweta v. Wijcsundera
Sarjoo Prasad C.J. in interpreting this section observed : — “ Theemphasis in the section is on the con%'iction by a court in India of anyoffence in which he is sentenced to imprisonment for not loss than twoyears.
In that case, prima- facie, the disqualification will attach to the personso convicted and sentenced. A remission of punishment in respect ofthe unexpired portion, even if validly granted under section 401 of theCriminal Procedure Code is not the same thing as a sentence passed by
the courtThat may enable him to earn his release earlier
than the period of sentence imposed by the Court but that earlier releasedoes not affect the actual sentence passed in the case. ..”
This is an unexceptionable observation with which I would respectfullyagree. If any remission obtained on account of prison rules or in theexercise of his powers by the Governor-General or an amnesty, as generallyunderstood in this country, was to be disregarded our legislature couldhave employed language similar to that of the Indian enactment andI should have then had no difficulty in giving the interpretation contendedfor by counsel for the respondent. The existence of a provision suchas the one in India in any legislature fortifies mo still further in theview which I have reached for the several reasons I have set out. For,our legislature too could have adopted such language if it was the intentionof the legislature to make the conviction simpliciter the ground ofdisqualification.
If one may not fall into the error of oversimplification, there is anothersimple yet fascinating argument from, which my conclusion appearsto derive some support. The disqualification of seven years undersection 13 (3) {/) is reckoned from the clay on which a person completesthe serving of the sentence of three months or longer. As stated byhis counsel, the respondent-appellant was committed to prison first-on the 2nd March 1903, and was released after a day on his enteringinto a bond pending an appeal to the Privy Council; he was again admittedto prison on the 30th April 190S after the Privy Council order and waslawfully discharged from prison on the 13th July 19GS. Therefore ifthe disqualification under the section should attach to him, it -wouldbegin to run from the 14th July 19GS. As the first requisite of thedisqualification is that he should have completed the serving of asentence of three months or longer, a seemingly simple but neverthelessconclusive initial approach for a court- having to consider the problemof the disqualification would bo to ask the question for how long hohad served in prison prior to the date on which the seven-year periodbegan to operate, namely, the 14th July 19GS. If one were to considerrealities leaving alone legal fictions for a moment, the incontrovertibleanswer to this question has to be that he has served for 7G days whichin fact is less than 3 months. Has the appellant then completed theserving of a sentence of 3 months imposed by a court or even b}r anyother authorit}- which is the conclusive factor in determining thedisqualification ? An answer is hardly necessary.
G. 1’. A. SILVA, S.P.J.—Etlaicela v. Wijcsundcra
2S3
I Mould wish at this stage to consider the question whether it isneecssary and appropriate to summon the aid of the background historyof this disqualif3‘ing provision for the purpose of the interpretation ofthe section. In the interpretation of statutes there has been aconsiderable difference of opinion, firstly, on the correctness of havingrecourse to the history of a statute and, secondly, as to the occasionwhen as well as the extent to which such recourse, if any, should behad. It is a generally accepted principle that a court must in the firstinstance endeavour to gather the meaning of a statute by what it saysand it is only if difficulties arc encountered in reasonablj7 interpretingit according to the ordinary rules of construction will it bo permissibleto refer to the state of the law at the time such statute was passed.Even so, the aid that should be obtained from such reference is veiylimited. Where the words of a statute are plain, however, it wouldnot be permissible for a court to be guided by its history or by groundsof public policy and such other matters. Even where the meaning isobscure, it is very doubtful whether the parliamentary history of the.statute can legitimately be used to assist its construction. I shouldwish to cite two passages here from Craies on Statute Law, 6th Edition,which, though not conclusive, throw some light on this matter. Atpage 127, on the subject of “ History as an aid to interpretation ”, hesays :—“ It was said ly Alderson 13. in Gorham v. Bishop of Exeter,that ‘ we do not construe Acts of Parliament by reference to history5,and Farwell L.J. said in a later case, ‘ The mischief sought to be curedby an Act of Parliament must be sought in the Act itself. Althoughit may perhaps be legitimate to call history in aid to show what factsexisted to bring about a statute, the inferences to be drawn therefromare exceedingly slight'.” Again at page 12S, in regard to the use ofDebates in Parliament, the following passage occurs :—“ It is notpermissible in discussing the meaning of an obscure enactment, to referto ‘ the parliamentary history ’ of a statute, in the sense of the debateswhich took place in Parliament when the statute was under consideration.As was said by Willes J. in Millar v. Taylor :‘ The sense and meaning
of an Act of Parliament must be collected from what it says when passedinto law, and not from the history of changes it underwent in the Housewhere it took its rise. That history is not known to the other Houseor to the Sovereign’ .”
While it is difficult to lay down a hard and fast rule in regard to thismatter as conflicting opinions have been expressed by courts in differentparts of the world, it seems to me that, if a reasonable constructioncan be given to the plain words of a statute, recourse to the previoushistory of the law would be unnecessa ry. It is on this basis that I haveconsidered the question before us as it appears to me that a meaningfulconstruction can be given to the relevant words without reference tothe previous history of the law. Furthermore, the question that woare called upon to decide is, in m3' view, not one which can be resolvedby a reference to the previous histor3' of the legislature.
2S4
G. P. A. SILVA, S.P.J.—Ellaurelci v. Wijcsundera
As considerable interest centred round the meaning of the word“ completed ” in this section during the hearing, I wish now to deal withthat matter. Certain criticisms were directed in the course of theargument at the view expressed by Sirimane, J. in the case of Satnara-ueera v. Jayauardena1, which, if accepted/necessarily led to the mostundesirable result that a person who served even a number of years inprison after conviction for a grave offence would not be liable to thedisqualification contemplated by section 13 (3) (/) if, before leavingprison, he had succeeded in obtaining a remission of a fraction of hissentence. I am myself unable, with respect, to subscribe to the viewexpressed by Sirimane, J. and my conclusion is based on the constructionthat a person part of whose sentence is remitted has completed servinghis sentence when he lawfully leaves the prison. This construction willavoid the mischief which Sirimane, J. himself appreciated when he choseto add the observation that it would be a matter for the attention of thelegislature. It is a cardinal rule of interpretation that a court should,in interpreting a statute, avoid a construction that leads to an absurdity-if any other reasonable construction is possible. As it is the invariablepractice that anjr sentence of imprisonment imposed by a court on aperson is reduced to a shorter term of actual serving in prison, if theconstruction placed by Sirimane, J. is accepted as correct, hardly overwill any person be disqualified under sect ion 13 (3) (/), however grave theoffence is that he has committed and whatever may be the length of theterm of imprisonment imposed on him. Furthermore, a person convictedof a comparatively trivial offence and sentenced to three months’imprisonment who serves the full sentence without any remission beinggranted will be disqualified while a person who has been sentenced to,say, 15 years and is released at the end of 10 years after earning aremission of 5 years will not be disqualified. I do not think that thelegislature could ever have contemplated such an absurdity when anotherreasonable construction can well be placed. The views expressed bySansoni, C.J. and Tambiah, J. in that case commend themselves to meand I would respectfully agree with their views on this aspect of thequestion. It seems to me that the construction which I have soughtto place on the material words of the section will not render anylegislative change necessary as the existing provision is adequate to fulfiits object.
The question incidentally arises as to whether there could be any otherreason for the use of the words “ completed the serving of a term ’’ inthis section. I think the word “ completed ” has been considerednecessary by the legislature for at least one reason. If, for instance, aperson sentenced to imprisonment by a court for a term of three monthsor longer breaks jail and is at large, although he is out of prison, he hasnot completed the serving of his sentence and would therefore bedisqualified from seeking election to either House at all. If he wishesto overcome the? years disqualification from the date of completion of hissentence, the only cotirso would be for him to surrender himself to prison’(10GG) CO .V. L. It. 211 at 250.
G. P. A. SILVA. S.P.J.—Ellaiccla v. Wijcsundcra
235
and spend tlie remaining part of his sentence until he is lawfully releasedtherefrom and the disqualification will commence from the date of suchrelease and continue for seven years thereafter. Supposing again a long-term prisoner obtains permission from the relevant authority' to leave theprison with a guard for a purpose considered to be legitimate, such asattending a funeral, and thereafter disappears. As in the earlier case hewould never qualify' for election to either House until he reappears inprison and completes serving the balance period. Completing theserving of the sentence would thus mean the completing of prison life inrespect of any particular sentence by' the prisoner according to law. Itwould therefore appear that it was necessary' to use the word “ completed ”for the reason that, in order that the disqualification may' operate, a personshould, on completion of the sentence imposed, have spent threemonths or more in prison. If he has not completed the serving of anypart of his sentence he will have to be treated as one who is serving histerm because he is always liable to be apprehended and imprisoned untillie completes the balance term for which he is liable under the sentence.
It is only' when he has lawfully' completed serving his sentence that theperiod of imprisonment as well as the duration of the disqualification willbe ascertainable. If he docs not so complete his sentence he will notqualify' to be a Member of Parliament even after seven years from the dayon which lie comes out of prison.
As I did not wish lightly' to disagree with the considered views expressedby' My Lord the Chief Justice, I have examined this question with more .than ordinary' care from every' angle which occurred to me as important.Whatever be the avenue through which I approach the problem howeverI find compelled to arrive at the same inescapable destination. Even ifmy conclusion is only one of two possible conclusions, an important-question of principle arises. It is a generally accepted canon of con-.
; | struction that where two meanings can be given to a set of words eacli} i adequately' satisfying the language and great harshness is produced by'
» ! one of them, a court would incline to the meaning that avoids the| harshness. Thus if the words of the section under consideration arer-,■-equally' capable of two interpretations one of which affects the rights of! an individual and results in harshness while the other avoids it, it behoves•* ; the court to lean towards the latter view. In this instance, the rights'<■ affected are not only' the rights of the respondent-appellant to remain asa Member of Parliament but also the inalienable right of every singleone of the 22,633 voters to cast his vote and return to the House ofRepresentatives a candidate of his choice. In consonance with this well .established rule of construction, therefore, even if what I have expressedabove is one of two possible views, the decision of the court mustnecessarily bo in favour of the appellant.
For the above reasons, I would allow the appeal with costs, reverse the’decision of the Election Judge and hold that tho appellant was dulyelected as a Member of Parliament for the Electoral District ofRatnapura.
ALL.ES, J.—KUawela v. Wijesunderu
2SG
Alles, J.—
I agree that this appeal should be dismissed but in view of theconflicting views expressed by the Judges in the case of Setmanuvccra v.Juyewardcne 1, I would like to state why the judgjuent of the majority(Sausoni, C.J. and Tambiah, J.) appears to me to correctly state thelaw.
Under Section 9 (1) (/) of the State Council Order in Council thedisqualification only attached to a person ” serving a sentence”. 1 fa person completed serving his sentence for tltc cjitiie period or onlya portion of it, having earned a remission for the balance period. Hipdisqualification ceased on his release from prison. The Legislature,therefore, not unnaturally, considered it desirable that not only' personsserving a sentence ” hut also persons who had t; completed the serving
of imprisonmentfor a term of three months or longer imposed by
any Courtfor an offence punishable with imprisonment for a term
exceeding twelve months” should also be disqualified—such
persons not being fit persons to represent the electors in the supremelegislative assembly in the land. Tltis is the language that has beenintroduced into Section 13(3) (/) of the Ceylon (Constitution) Order inCouncil. The disqualification that attaches to the prospective memberin the latter part of this Section is therefore, not dependent solely on thesojourn of the prisoner within the prison walls for the requisite period,but also flows from the decision of a competent Court, which thought iffit to impose a sentence of throe months or more on the ofi'endcr, in viewof flic serious nature of his crime. The remission of that sentence by the■ Lxecutivo for administrative reasons cannot affect the expression of
disapproval reflected in the imposition of the sentence by the Court for aperiod of three months or more. .Such being the case, even if there is nremission of the sentence imposed, the o(lender Mould nevertheless hav e*completed the serr'uuj of the sentence. With respect I would agree with (lieobservations of Sausoni C.J. in Snmiiruireeru v. Jaijcuuidene that had theposition been otherwise the words used might have been ” served every-day of the term of the sentence of imprisonment or similar words ”. Forthe same reason 1 am unable to agree with the dissenting judgment ofSirimane, J. that a sentence of imprisonment is wiped out by an orderof remission ” and that therefore a person cannot be.said to have servedhis sentence. With all respect to Sirimane, J. I do not think that theremission of a sentence can over “ wipe ” out a sentence that has beenimposed by a competent Court. It can only result in the period ofincarceration for which the offender was sentenced being reduced forreasons over which the Court has no control. .Moreover the effectivewords of the section aro not the “serving” of the sentence but the" completion of the .service of the sentence The latter words wouldcontemplate not only the serving of a sentence for the full period imposed.
’ {1000) VJX.L.Jt. Ul.
SAMEKAWICKRAMli, J.—Sultan v. The Karheheri Surccyor, Tnncomalcc 2S7
on him by the Court but also any lesser period as a result of a remission.In either ease the prisoner would have completed the serving of hissentence.'
I am also in agreement with my Lord the Chief Justice that had it beenthe intention of the Legislature to permit a remission of a sentence toaffect the period of disqualification the proviso to Section f 3 (3) (/) wouldhave been expressed in different language.
The view that commended itself to the majority of the Bench whichdecided the ease of Samara ice-era v. J aycwardcue gives effect to the plainlanguage found in Section 13 (3) (/) and leaves no room for the strainedinterpretation contended for by learned Counsel for the appellant.
I would dismiss the appeal with costs.
Appeal dismissed.