030-SLLR-1988-V2-RAJAPAKSE-V.-KULARATNE-AND-OTHERS.pdf

The words "… a report made by a Judge finding himguilty of any corrupt practice …." in tyticle 89(e) (iii) ofthe Constitution apply only to such a person who is setout in such report as having been proved himsdff to havebeen guilty (as provided in section 82(b) of the said Orderin Council) of the corrupt practice of making such false
•statement of fact and does not apply also to thecandidate (though not set out in such Report as havingbeen proved himself to have committed such corruptpractice) whose agent is set out in such Report as havingcommitted such practice with such candidate'sknowledge and consent.
The provisions of section 821(2) (b) (ii) and 83(3) of theElections Order in Council ceased to be law with the coming intoexistence of the Constitution of 1972 and hence were not‘existing law' when the Constitution of 1978 came intooperation. Being inconsistent with-Article 89(e) (iii) of the 1978Constitution they were not revived by the 5th Amendment. Thequestion of Petitioner s disqualification to be an elector has to bedecided solely by reference to Article 89(e) (iii) of the 1978Constitution. For the reasons set out.above this Article does notdisqualify the Petitioner from being an elector in terms of Articles88 and 89 of the Constitution."
Article 161(a) (iii) of the Constitution as amended by the FifthAmendment reads as follows:
"Notwithstanding anything to the contrary in any otherprovision of the Constitution …. the Commissioner ofElections shall thereupon hold an election in accordancewith Part I. IV to VI both inclusive of the Ceylon(Parliamentary Elections) Order in Council. 1946 for suchelectoral district as existed immediately preceding the
Constitution and on the basis of such part of the registerprepared under the Registration of Electors No. 44/80 andin operation as corresponds to such electoral district. Theaforesaid parts of the Ceylon (Parliamentary Elections)Order in Council 1946 shall for the purpose of suchelection and notwithstanding the repeal of such Order inCouncil being deemed to be in force and shall mutatis• mutandis, and except as otherwise expressly provided in theConstitution^pply to such election.
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The law applicable to such election petitions in relation tosuch electoral district shall be the aforesaid parts of suchOrder in Council as applied aforesaid."c ■
Section 2 of the Registration of Electors Act No. 44/80provides—
'That no persoft shall be qualified to have his nameentered or retained in any Register of Electors for anyElectoral District in any year, if such person is subject to anyof the disqualifications specified in Article 89 of theConstitution.
Article 89 of the Constitution specifies the disqualifications tobe an elector.
Article 90 provides that every person who qualifies to be anelector shall be qualified to be elected as a Member ofParliament unless he is disqualified under the provisions ofArticle 91, which sets out the disqualification for election as aMem ber of Pa rl iament.•
Article 101 which empowers Parliament to make by-lawspecifically provides that no such law shall add to thedisqualifications in Articles 89 and 91.
Acceptance of the submissions of the Counsel for theAppellant will result in adding to the disqualification specified in*Articles 89 and 91 which is forbidden by Article 101.
Counsel for the Appellant stressed that Article 161 which is atransitional provision prefaced its provisions by stating"Notwithstanding anything to the contrary in any other provisionof the Constitution and contended that as a result of this non-obstinate clause Articles 89, 90 and 91 are not applicable toby-elections held in terms of the Fifth Amendment.
The Fifth Amendment does not revivify part (1) and part (tv) to
(both inclusive) of the Ceylon (Parliamentary Elections) Orderin Council in their full integrity. They only apply "except asotherwise expressly provided for in the Constitution" to an
election held in terms of the amendment. These provisions ofthose parts of the Election-Order-in-Council will have to be heldto be superseded wherever the provisions of the Constitutionhave c(^alt with the same subject-matter in which case, suchprovisions will govern the subject-matter.
Counsel referred to Shanmugam vs. Commissioner ofRegistration of Indian & Pakistani Residents (2) where LordRadcliffe giving the judgment of the Privy Council, said—
"to be express provision" with regard to something it isnot necessary that that thing should be specially mentioned,it is sufficient that its directly covered by the languagehowever broad the language may be which covers it so longas the applicability arises directly from the language usedand not be inference therefrom."
The question of qualifications to be an elector and to beMember of Parliament are provided for specifically by Articles89 and 90 of the Constitution. Therefore it is to these Articles ofthe Constitution viz: 89 and 90 that one should look to findwhether the 1 st Respondent ft qualified to be an elector or to bea Member of Parliament in an election held in terms of the 5thAmendment. In my view, these provisions do not disqualify the1 st Respondent.
The appeal is dismissed with costs.
COUN-THOME. J.- I agreejtANASlNQHE, j.— t agree.atukorale, J.— I agree.
TAMBIAH, j.— I agree.
L H. de ALwiS, j.- I agree.
SENEVIRATNE, J.— I agreeH. A. G. DE SILVA'J.- I agree.
WANASUNDERA, J.
This is an appeal from a decision of the Election Judge in-Election Petition No. 1/1985 in respect of the election held on12th September 1985 for Electoral District No. 75 Muikirigala.The mam ground on which the petitioner came into court wasthat Ananda Kularatne. the 1st respondent (hereinafter referredto as the 1st respondent) was disqualified for election as aMember of Parliament by reason of a report made by an ElectionJudge inflection Petition Case No. 3/83 at a previous electionfor this same seat.
At the hearing of the election petition no oral evidence G/as led.but counsel marked certain documents and the matter wasdisposed of on the preliminary objection raised by counsel forthe 1st respondent. The preliminary objection was that the 1strespondent's constitutional qualification had already beendetermined by a ruling of the Supreme Court in Reference No.
1 /85. and that such ruling was binding on the Election Judge.The Election Judge upheld the preliminary objection ariddismissed the petition.
The Election Judge has applied the ruling of the SupremeCourt in S.C. No. 1/85. This was a reference by the Court ofAppeal to the Supreme Court in terms of Article 125(1) of theConstitution in the course of dealing with an application for awrit of certiorari and mandamus filed in that court —C. A Application No. 112/85. The questions that were referredin that Reference were the followinf
"(a) In view of the provisions of Articles 88, 89(e) (iii) and90 of the Constitution does section 82D<2) (b) (i.i) ofthe Ceylon (Parliamentary Elections) Order in Council1946 read with the Fifth Amendment to theConstitution now operate to impose on such 3candidate as is referred to in section 82D(2) (b) (n) ofthe said Order in Council the disqualifications of beingan elector at an election of Members of Parliament orof being elected as a Member of Parliament ?
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(b) Where the report made by an Election Judge finds that thecorrupt practice of making a false statement of fact undersection 58(1) (d) of the Ceylon (Parliamentary Elections)Order in Council 1946 had been committed by a person1acting as agent and with the knowledge and consent of acandidate at such election is such candidate subject tothe disqualification contained in Article 89(e) (iii) of theConstitution?
(c) Oo the words …. a report made by a Judge firtciing himguilty of any corrupt practice . . ..’ in Article 89(e) (iii) ofthe Constitution — apply only to such a person who is set•out in such report as having been proved himself to havebeen guilty (as provided in section 82(b) of the said Orderin Council) of the corrupt practice of making such falsestatement of fact?
OR
Apply also to the candidate (though not set out in suchreport as having been proved himself to have committedsuch corrupt practice) whose agent is set out iri suchreport as having committed such practice with suchcandidate's knowledge and consent?"
A brief statement of the sequence of events given irchronological order would explain how the writ application cameto be filed. The seat for the Mulkirigala Electoral District wasoriginally held by one Frangiscu. a member of the U.N.P. Heresigned his seat in March 1983 Upon his resignation, and nonomination being made by the Secretary of the party to fill thevacancy, a by-election was held in terms of the provisions of theFifth Amendment to the Constitution. At this by-election the 1strespondent was declared elected to the seat.
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with the knowledge and consent of the 1st respondent. At theconclusion of the election petition, the Election Judge held thatthe charge was established. On appeal by the 1st respondent theSupreme Court confirmed the determination of the ElectionJudge and dismissed the appeal. This necessitated a freshby-election.
The Election Judge had, in terms of section 82 of the Ceylon(Parliamentary Elections) Order in Council (Cap. 381). made areport W the above corrupt practice, which upon beingtransmitted to His Excellency the President was published inGazette No. 330/8 of 1st January 1985 as required by theprovisions of section 820 (2) of the said Order in Council
The requirement for such application and the effect of thepublication are provided in section 82D. The relevant provisionsare as follows:—
"820 (2) (a) The Governor-General shall, upon receipt ofthe report of the Election Judge or of the Supreme Courttransmitted to him under section 82C. cause a copy of thereport to be published in the Gazette.
*(b)(i) Where the report referred to in paragraph (a) is to
the effect that a corrupt or illegal practice has beencommitted by any person, that person shall be subject tothe same incapacities as if at the date of the said report he
had been convicted of that practice.
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(ii) Where the report referrqpl to in paragraph (a) is to theeffect that such corrupt or illegal practice was committedwith the knowledge and consent of a person who was acandidate at an election or by his agent, that person shall besubject to the same incapacities.
It shall be the duty of every registering officerforthwith to peruse every such report which is published in.*the Gazette as provided in subsection (2), and forthwith todelete from the register of electors assigned to him thename of every person appearing from the report to beincapable of voting at an election."
His Excellency the President therefore ordered the holding ofan election in this electoral district. On 10th January 1985 theReturning Officer called for nominations of candidates forelection. On or about 25th January 1985 the Returning Officeracting in terms of the provisions of subsection 3 of section 83Ddeleted the name of the 1 st respondent from the register andinformed the 1 st respondent of such action. On the 28th January1985 the 1st respondent wrote to the Returning Officerrequesting that his name be restored to the registerjDn 30thJanuary 1985 the 1 st respondent filed the application for a writof Certiorari and Mandamus. No. CA 112/85. challenging thedeletion of his name. On the 30th January the Court of Appealgranted the 1st respondent an order staying the nominations andnotices were simultaneously issued on the Commissioner ofElections and the Returning Officer. In February 1985?objectionswere filed by the respondents and on 28th March 1985 theCourt of Appeal made the Constitutional Reference No. 1/85.because it appeared that the main issue in the case involved aninterpretation of the Constitution.
The Supreme Court in S.C. Reference No. 1 /85 held—
that the issue of the 1st respondent's qualification ordisqualification from being an elector or from beingelected as a Member of Parliament has to be determinedsolely by reference to Articles 89 and 91 of the presentConstitution, and
that the report by *an Election Judge that the 1 strespondent's agent Basil Rajapakse had committed thecorrupt practice with the knowledge and consent of the1st respondent did not bring the 1st respondent withinthe ambit of the disqualifying provisions contained inArticle 89 (e) (in), since that provision covers only thecase of a person who is found guilty of himself havingcommitted a corrupt practice.
The Election Judge upheld the preliminary objection taken byMr. Choksy for the 1st respondent that the 1st respondent'sconstitutional qualification had already been determined by the
'above' ruling, which it said was conclusive and proceeded to •apply it. In consequence the election petition was,dismissed withcosts.
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The present proceedings. constitute an appeal from'thatdecision and this full bench has been constituted to considerwhether it could review the iegal'questions that have been earlierdecided by this court. By our. interim order we decided that it isopen tcyhis- bench to review an earlier determination made by abench of this court which is numerically less than the presentbench.
Mr.- Senanayake canvassed the determination in RlferenceJSIo. 1 /85 on two grounds. First, he submitted that the wordingof .the disqualification contained-in Article 89 (e) (iii). of thepresent Constitution (which is identical with Article 68 (d) (iii)of the 1972 Constitution) is adequate to cover the case of the1st respondent and it neither indicates any-variation from the;|ayv that, existed previously- nor is there.-evidence of theintention of the Constituent, assemblies or the Parliament tordepart from therprevious law In fact there-isvevery-indicatiqn-that both Parliament; the Governme'nt and the legal authoritieshad upderstood that provision in that,way. i:-
– . .Secondly, Mr. Senanayake submitted that, this being . anelection of a member to the first Parliament* the issue isgoverned by. the provisions of*Article .1-6-1 ."Of the. present'Constitution.read with, the Fifth Amendment, more particularlythe proviso to-Article,t161 (d) (iii). In terms of these provisions,the matter is governed ; by. the provisions of. the -Ceylon(Parliamentary Elections) Order in Council, it was his contentionthat, having regard to the provisions of sections 82D (2) (b) (i) and,'(ii), section* 8.2D (3), and section 31 (1) (e) of the Ceylon; (Parliamentary Elections) Order in Council which have, to begiven effect to in this-case. Article 89 of the Constitution cqff, have no applicability. Hence the Tst respondent's disqualificationmust be determined in terms of the above provisions of. theElections Order in Council alone and according to which the 1 st* respondent is disqualified.
Mr. Choksy on the other hand submitted that the language ofArticle 68 (d) (iii) of the; 1972 Constitution (which.is followed inArticle 89 (e) (iii) of the 1978 Constitution) shows a, markeddifference from the language in section 82D (2) .(b) of theCeylon (Parliamentary Elections) Order in Council. Whileconceding that under the old law a candidate whose agent orsupporter had committed a corrupt practice with the candidate'sknowledge and consent would involve the caryfidate himself inliability and with a disqualification, Mr.. Choksy submitted thatafter 19.72 the law for good reason had done away^with thisvicarious liability. It had now chosen that, the candidate should.not be visited with such a disqualification but that the■ disqualification should be confined only to the actual offender.
Mr. Cboksy submitted that the law contemplated threecategories of violators of the law. First, the case of a. person(candidate or any other person) who himself commits a corruptpractice. . Second,, the case of an agent of the candidate whocommits a corrupt practice. Third, the position of the candidatewhere the corrupt practice is committed with theknowledge andconsent of the candidate. Mr. Choksy stated that section 82 (b)of the (Parliamentary Elections) Order in Council uses the word"guilty", whereas section 82 (a) and section 82D do not-use thisword. The use of the word "guilty" in Article 68 (d) (iii) of the1972 Constitution’(which is the equivalent of Article 89 (e) (iii) ofthe 1978 Constitution) is referable,to the provisions of section82 (b) ■ which contemplates only -the first category .above.-Accordingly, it-is only the person who is actually found guilty andso stated in the report to b^guilty who will be subject, to thedisqualification. Drawing an analogy with other branches of thelaw, he stated that the principle of vicarious liability cannot andshould pot apply in a case such as this, which is of a penal
nature.•,• .
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Elaborating on this, Mr. Choksy submitted further , that the'Vord "guilty" must be given, its clear and intended meaning,since it has been used with reference to the report of the ElectionJudge under , the (Parliamentary Elections) Order in Councilwhich provides for that report, namely to section 82 alone and•not to any other section which may define the consequences Of
such offence. Article 89 (e) (iii) requires reference only to thereporMor the purpose of determining whether a person is-subject to the disqualification in that Article. The applicability ofArticle 89 (e)(iii) does not depend on any other facts or any .otherlegislative provisions. Therefore, a reference to the provisions ofsection 82D (2) is not permissible to determine whether or not a •person is disqualified. Section'82 (b) expressly requires anElection Judge; yhen he has.found a person guilty of a corruptpractice to set out such finding. Such a statement is conclusivefor the Bfirpose of applying Article 89 (e) (iii). .
Mr. Choksy also relied on certain rules'of interpretation infayour of his contention. Hq cited Benion ori Statutory: Interpretation for the proposition that a court .should strive toavoid adopting af construction, which penalises a person wherethe legislator's intentions to do so is doubtful or penalises him ina way which was not made clear. For this purpose he said that alaw that inflicts hardship or deprivation of any kind is in essencepenal and more specifically that a strict construction should begiven to an enactment curtailing voting rights, and the franchise.
disqualification^ both in the case of ah elector and also formembership in the National State. Assembly. The differentarrangement of the sections .necessitated the variation in thedrafting, but this variation does not constitute a departure from
the earlier legaf position ' r<•
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Next when we examine the provisions of section 82 of the(Parliamentary Elections) Order in Council; w§ find ihat in theanalysis he made/Mr. Choksy'has chosen to ignore th^ffect ofparagraph (a) and sought to highlight'the provisions ofparagraph ,(b) as.iffit were an independent provision capable ofstandihgby itself. This is clearly erroneous; The primary provisionis paragraph (a) and it. is wholly directed to an inquiry and findingthe culpability of.the candidate himself,directly.or through hisagent or through someone else with hi's^ knowledge and consent!
'Where the answer, is. in the affirmative, .all the necessary.information has to be furnished and this is provided for inparagraph (b). Paragraph (b) -is clearly consequential. toparagraph (a). In the nature of things it is not possible for thecandidate's name to., appear, in paragraph (b),as an actualoffender when we are dealing with the case^of a corrupt practicebeing done by someone else and not by the candidate hjmself.The candidate is involved because he has had knowledge or hadgiven his consent. What Mr.Choksy has sought to do is to placethis section as it were upside down and construe; it starting fromthe bottom. •9, ,.
; Mr: Choksy's other submissioh that this is a case-of vicariousliability fe not justified by the language'of the enactment or by thegeneral principles of vicarious liability. A candidate who is made -liable for an act, done.witivthe* knowledge'.and consent’of the■candidate could in certain fcircumstances be hrthe position of anaccessory to the act arid even a principal in the first or seconddegree if we were to use the parlance in criminal law. For he.canbe an instigator oran abettor. This' is a far cry from'.the examplesgiven by Mr. Choksy of cases of civil liability where a master ismade liable for the1 delict of a "servant for acts committed in thecourse of employment. ■
• 1Again, I think. Mr. Senanayake dealt effectively with Mr.Choks^s argument based on principles of interpretation whichwas termed "the principle against doubtful'penalisation". I agreewith Mr. Senanayake that .these provisions are intended inessence to define the qualifications and disqualifications forvoting- and for being a member of the legislature and also-to,ensure the purity of elections and the electoral process. Where a*corrupt or iHega^practice Is committed with the knovyledge andconsent of the- candidate — and as I have said earlier, thecandidate can be an abettor or instigator — the old law verywisely regarded the candidate himself as being tainted and wasmade to suffer the same consequences and disqualification asthe person who had actually committed, the act. This is inconsonance with the ordinary principles of. criminal liabilitywhere an abettor is made liable for the same punishment as theprincipal in the first degree. I can see no-good reason why thisshould be otherwise. Mr. Senanayake stated somewhatpicturesquely that it is absolutely necessary that such a personinfected with the virtues of corruption should be quarantined andkept out'of the electoral scene if we are – concerned withmaintaining the purity of the electoral process. Far fromacceding to Mr. Choksy's submission on what bethought wasthe proper rule of interpretation, I should think that on thisbackground there should have been a cleat intention on the partof the draftsman expressed in unambiguous language indicatinga change in'the law if such an important and significantdeparture had been intended by the law. In this regard we hadonly some speculative submission^ made by Mr. Choksy whichare highly questionable and-not supported by an !iota’of material.
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Mr. Choksy also suggested that the variation he attributed tothe provisions after 1972 mayifiave been due to our draftsmanbeing influenced by the'corresponding provisions on the jndianlaw. He referred us to the Indian Representation of the PeoplesAct -1951. The Indian provisions are differently worded from1 ourlaw,-, and from the excerpts submitted, to us-it is difficult to sayTwhat is the precise legal position under, that law. However, evenassuming that tlje Indian law is different and that it draws adistinction for the purpose of disqualification between the personwho actually' committed the corrupt practice and the candidate
with whose knowledge and consent it was done, I do not thinkthat the Indian law could have influenced our draftsman <xAhat-itcould in any event provide a model for us. While the Indian lawmay be adequate for India. I find that the Indian law does notprovide as a matter of course for the disqualification of even theperson who actuafty commits the corrupt practice, but leaver itto the discretion of the President whether or not to disqualify himand for what periodrsection 8A. This 'has never been our law orbeen at any time in the contemplation of our draftsman and iswholly unacceptable to our concept of elections. ^ .
Mr. Choksy also referred to. the corresponding provisions inthe U.H;. namely, the Representations of Peoples Act 1983. Inthis connection I may first mention that in the .•U.K. legislation,unlike the Indian law. both the actual person who commits thecorrupt or illegal-practice and the candidate^ if it is done with hisknowledge and consent, ^are both disqualified from voting orbeing elected and this has. been done in the clearest terms. Thisadmittedly .has been our own position untij 1972. Mr. Choksysought to contrast the explicitness of the U.K. legislation with ourpost 1972 provisions.'Undoubtedly different techniques ofdrafting have been adopted in the two cases, but 1 think that theidentical result is achieved in.both cases. In the U.K. thelanguage used is as follows:—
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"158 (2) (a) . If it is reported that a corrupt practice otherthan treating or .undue influence was committed-with theknowledge and consent jjf a candidate, he shall be treatedas having been reported personally guilty of that corruptpractice." -.#
The technique* of our draftsman is different. Under our law
when a person is convicted by-a criminal-court of a corrupt
practice he is declared to be disqualified from being a voter or
member of Parliament — vide section 58B (3). Then section 82D
^2) (b) (i) states that where there is no conviction by a criminal
court but an Election Judge in his feport jnakes a finding of the
commission of a corrupt practice by any person, "that person
shall be subject to the same incapacities as if at the date of the
said report he had been convicted of that practice."
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Here ye find a second category of persons not formally fouhdguiltyVy a criminal court.equated to the first category. Next wehave a third category. Section 82D (2) (b) (ii) states:
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"Where the report referred to in paragraph (a) is to .the% effect that such corrupt or illegal practice was committedvyith the knowledge and consent of a person who was acandidate at an election or by his agent, that person shall be; subject to tne same incapacities as aforesaid "
Here it would be observed that the drafting technique is toequate the third category to the second category and the secondcategory to the first category and bring about an equalising ofthe three unequal categories so as to visit all three with the sameconsequences and disability. While the U.K. drafting may bemore explicit, it is less elegant than ours and as I said earlier,those examples reveal different techniques of the draftsman skillsin seeking to achieve the same object.
Incidentally Mr. Aziz. Deputy Solicitor-General, who appearedbefore this court in the Reference contended strongly for theview that our law is identical with the U.K. law,, but we saw theAdd!. Solicitor-General now appearing before us, for reasonswhich we cannot fathom, seeking to put forward a diametricallyopposite view and disowning the earljer submissions. In thisconnection Mr. Senanayaka rightly drew our attention to theprovisions of section 107 of Parliamentary Elections Act, No. 1 of-1981, where the identical language used in Ceylon(Constitution) Order in Council is used.’ If there had been avariation of the position after'19^. such a provision could nothave^been constitutionally enacted in the manner it was doneand it may be noted that Act No. 1 of 198 T had had the sanctionof both Parliament and the law officers of the Government. Anindication such as this gives the clearest proof that the law hadremained unchanged and supports the reasoning set out in thisjudgment.,
Accordingly I am of the view*that even assuming that thematter is governed by the provisions of the 1972 or 1978Constitution, the ' relevant • provisions disqualify the 1st
• respondent from being either an elector or membA of theLegislature, I arh also of the view that the view expressed^*1 thismatter .in Reference No. 1 /85 cannot be sustained and it is ourdecision in this case that that should govern the Election-Judge.
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In view of this ruling the appeal must succeed and it^sunnecessary to consider the alternative ground argued by Mr.Senanayake.
Appeal dismissed.