WADIGAMANGAWA AND OTHERS v. WIMALASURIYA

026-SLLR-SLLR-1981-1-WADIGAMANGAWA-AND-OTHERS-v.-WIMALASURIYA.pdf


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Wadigamangawa and Others v. Wimalasuriya
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WADIGAMANGAWA AND OTHERS
v.WIMALASURIYA
SUPREME COURTSAMARAKOON C. J.. ISMAIL J.,
weeraratne j., sharvananda j.,
WANASUNDERA J., WIMALARATNE J.,
RATWATTE J.
S. C. ELECTION PETITIONAPPEALS 1/81 to 3/81JUNE 1, 2 and 3, 1981.
Election Petition — Security — p0es appeal from interlocutory order He ? Section82A(1)(b) and 10112) of the Ceylon (Parliamentary Elections) Order in Council —Special leave to appeal — Article 128(2), 127 and 130 of the Constitution
The questions being (1). whether an appeal frotn ah order of the Election Judgeoverruling an objection to security would be governed by Section 82A (1 )(b) of theCeylon (Parliamentary Elections) Order in Council or Articles 128, 127 and 130 of theConstitution (?) whether the procedure to be followed in appealing is to be found-in theprovisions of the Order in Council or in Articles 127 and'128 of the Constitution —
Held
An election case is a civil matter or proceeding in which the civil appellate jurisdictionof the Supreme Court could be invoked. Article 130(b) of the Constitution hassuperseded Section 82A (1) of the Ceylon (Parliamentary Elections) Order in Council1946 in regard to the scope of the right of appeal in election petition cases and thejurisdiction vested in the Supreme Court under Article 130(b) of the Constitution doesnot suffer from the limitations imposed by $.82A(1) of the Order in Council. Jurisdic-tion in respect of election petitions dealt with in Article 130 is thus referable to Article118(e) and is in the nature of a special jurisdiction.
Article 130 gives a rijftt of appeal from an order or judgrtent of the Court of Appeal inan election petition. The word 'order' is an appropriate teim for interlocutory ordersand is used in Article 130 unqualified and without any limitations and is much wider inscope than s. 82A of the Order in Council. The present matter involves a question oflaw and could have had the effect of finally disposing of the election petition if theobjection had been upheld. The present case falls within the provisions of Article 130(b)of the Constitution. This Article does not contain the limitations found in s.82A(1)(b)of the Order in Council.
Held further (Samarakoon C. J. Weeraratne J. and Sharvananda J. dissenting) on thequestion of procedure (in contradistinction to appellate jurisdiction itself), sections 82A,828 and 82C of the Order in Council continue to apply rather than Articles 127 and 128of the Constitution and as the appeals were not preferred under section $.82A(2) whichis the only mode of access to the Supreme Court the appeals have to be rejected.
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Cases referred to
Minister of Home Affairs v. Fisher [1973] All. E.R. 21, 26
in re Goonesingha (1942) 44 NLR 75
Rao v. Baskararao AIR 1964 AP 185
Senanayake v. Navaratne (1954) 56 NLR 5
De Silva J. Senanayake (1972)75 Nl. R 265
De Silva v. Attorney-General (1949) 50 NLR 481
Pilapitiya v. Muttettuweqama S.C. Application No. 15 of 1979, S.C. Minutes of25.5 1979
Rama!ingam v. Kumarasamy (1953) 55NLR 145
Dissa'iayake v. Abeysinghe (1972) 75 NLR 12
APPEALS from the orders of the Court of Appeal in Election Petitions 1/81,2/81 and3/81
K. N. Choksy with V. Basnayake, H. Jayamaha, S. Ruthramoorthy, R. Perera, S. Peirisand A. Kasturiaratchi for 1st respondent-petitioner in Appeal No. 1/81 who is 1strespondent-respondent in Appeals Nos. 2/81 and 3/81.
N. Satyendra with D. Pelpola •and P. Sunderalingam for 2nd and 3rd respondent -respondents in Appeal No. 1/81 who are respectively 2nd respondent-petitioner inAppeal No. 2/81 and 3rd respondent -petitioner in Appeal No. 3/81
K. Shanmugalingam with L. B. R. Fernando and G. Dayasiri for petitioner-respondent.
Cur. adv. vult.
July 13,1981
SAMARAKOON, C. J.
This is a matter that arises out of an Election Petition filed in theCourt of Appeal. A bye-election was held of 7th May, 1980, toelect a member of Parliament for the Electoral District No. 104— Anamaduwa. At the said bye-election the 1st Respondent-Petitioner (hereinafter referred to as 1st Respondent) was declaredelected. That election was challenged in the Court of Appeal inthese proceedings by the Respondent-Petitioner (hereinafter refe-rred to as the Petitioner) on various charges. Charges were also laidagainst the 2nd and 3rd Respondent-Respondents (hereinafterreferred to as 2nd and 3rd Respondent respectively). At thehearing before the Court of Appeal the Respondent took objectionto the sufficiency of the security deposited by the Petitioner. Thedetails of such objection are not relevant for the present inquiry.Suffice it to state that the Court of Appeal held that the securitydeposited by the Petitioner was sufficient in law. The 1st Res-pondent appeals to this Court from that decision. The 2nd and 3rdRespondents support the contention of the 1st Respondent. ThePetitioner has by way of a preliminary objection challenged theright of the 1st Respondent to appeal from the order and the rightof this Court to hear and determine an appeal on an interlocutory
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order. Counsel for the Petitioner contends that the provisions ofsection 82(1) (b) of the Ceylon (Parliamentary Elections) Order inCouncil (Chapter 381) do not permit such an appeal. Counsel forthe 1st Respondent and Counsel for the 2nd and 3rd Respondentsboth contend that the provisions of the Constitution which governthis appeal permit the appeal. It is necessary therefore to decidewhich of the provisions referred to, apply to this appeal.
The provisions of the Order in Council 1946 as amended byAct No. 19 of 1948 (Chapter 381) permitted appeals in electionpetitions to the Supreme Court constituted under the CourtsOrdinance (Chapter 2). The petition itself was heard by a singleJudge of the Supreme Court who was nominated by the ChiefJustice (and referred to as 'Election Judge') and an appeal lay tothe Supreme Court in terms of section 82A. The Administration-of Justice Law No. 44 of 1973 which came into operation in 1973vested the jurisdiction to hear and determine election petitionsin the High Court. (Vide section 22 Administration of Justice LawNo. 44 of 1973). Appeals from the decision of the High Courtcontinued to be filed in terms of section 82A of the Order inCouncil in the Supreme Court which by then had been consti-tuted under the Administration of Justice Law. That SupremeCourt was abolished by the provisions of the Constitution of theDemocratic Socialist Republic of Sri Lanka 1978 (hereinafterreferred to as the Constitution). The Constitution vested jurisdic-tion to hear E lection Petitions in a newly created Court of Appeal.The President of the Court of Appeal nominated the ElectionJudge to hear a particular petition. The Supreme Court createdunder the Administration of Justice Law ceased to exist and a newSupreme Court came into being under the Constitution. TheApplication for special leave to appeal has been filed in this casein terms of Article 128(2) of the Constitution. Counsel for thePetitioner contends that this Article is not applicable to this elec-tion petition and that the provisions of section 82A of the Orderin Council must be observed.
Section 82A (1) and (5) of the Order in Council read as follows:'
"82A (1) An appeal to the Supreme Court shall lie on anyquestion of law, but not otherwise, against—
the determination of an Election Judge under section81, or
any other decision of an Election Judge which has theeffect of finally disposing of an election petition.
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Every appeal under this section shall be heard by threeJudges of the Supreme Court and shall, as far as practicable, begiven priority over other business of that court. The court maygive all such directions as it may consider necessary in relationto the hearing and disposal of each appeal."
It is clear from these provisions that –
an appeal lies only on a question of law,
on a determination under section 81 (which is a finalorder),
and(c) on any other decision which has the effect of finallydisposing of the Election Petition.
It is also clear that the decision now appealed from is neitherone under section 81 nor a decision which finally disposes of thepetition. If, section 82A applies this appeal must be dismissed.Counsel for 1st Respondent, supported by Counsel for the otherRespondents, contends that Article 128(2), 127 and 130 of theConstitution govern the matter and therefore the appeal is pro-perly made and constituted in law. Article 128 reads as follows:
"128.(1) An appeal shall lie to the Supreme Court from anyfinal order, judgment, decree or sentence of the Court ofAppeal in any matter or proceedings, whether civil or criminal,which involves a substantial question of law, if the Court ofAppeal grants leave to appeal to the Supreme Court ex meromotu or at the instance of any aggrieved party to such matter orproceedings;
(2) The Supreme Court may, in its discretion, grantspecial leave to appeal to the Supreme Court from any final orinterlocutory order, judgment, decree, or sentence made by theCourt of Appeal in any matter or proceedings, whether civil orcriminal, where the Court of Appeal has refused to grant leaveto appeal to the Supreme Court, or where in the opinion of theSupreme Court, the case or matter is fit for review by theSupreme Court:
Provided that the Supreme Court shall grant leave toappeal in every matter or proceedings in which it is satisfiedthat the question to be decided is of public or general impor-tance."
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Article 130 which confers appellate jurisdiction on the SupremeCourt in Election Petitions reads as follows:
"130. The Supreme Court shall have the power to hear anddetermine and make such orders as provided for by law on:
any legal proceeding relating to the election of the Presi-dent;
any appeal from an order or judgment of the Court ofAppeal in an election petition case.
Provided that the hearing and determination of a proceedingrelating to the election of the President shall be by at least fiveJudges of the Supreme Court of whom, unless he otherwisedirects, the Chief Justice shall be one."
This follows Article 118(e) which confers a general jurisdictionin the Supreme Court in election petitions. Which, then, is theenactment that prevails — the Order in Council or the Constitu-tion?
Article 101 of the Constitution empowers Parliament to makeprovision in respect of elections. They are specified in Article 101(1) (a) to (b). Article 101 (1) (i) reads as follows:
"(i)the manner of determination of disputed elections andsuch other matters as are necessary or incidental to the electionof Members of Parliament."
This permits rules to be made for the hearing and final disposalof Election Petitions. Article 101(2) makes provision for the inte-rim period as follows:
"101(2) Until Parliament by law makes provision for suchmatters, the Ceylon (Parliamentary Elections) Order in Council,1946 as amended from time to time, shall, subject to the provi-sions of the Constitution, mutatis mutandis, apply."
Counsel for 2nd and 3rd Respondents laid great stress on thewords "subject to the provisions of the Constitution." It is there-fore clear from this sub-section that until Parliament expresslymakes provision for such matters as are set out in Article 101(1)the provisions of the Order in Council must be read, with thenecessary. alterations, so as to make it workable and have iegaleffect This Article must be read together with Article 169(2)which reads as follows:
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"169(2) the Supreme Court established by the Administra-tion of Justice Law, No. 44 of 1973, shall, on the commence-ment of the Constitution, cease to exist, and accordingly theprovisions of that Law relating to the establishment of thesaid Supreme Court, shall be deemed to have been repealed.
Unless otherwise provided in the Constitution, every reference
in any existing written law to the Supreme Court shall be
deemed to be a reference to the Court of Appeal."
We are then faced with an apparent difficulty. Whereas it ispossible to read "Court of Appeal" instead of "Supreme Court"in. section 79 and section 82 it is impossible to read "Court ofAppeal" in section 82A, section 82B, section 82C and in section82D for the simple reason that appeal is permissible under Article130 of the Constitution only to the Supreme Court created by theConstitution. Counsel for the Petitioner who contended for sec-tion 82A of the Order in Council continuing intact argued that theprovisions of Article 169(2) by including the words ''unless other-wise provided in the Constitution" saved the operative effect ofsection 82A of the Order in Council because the Constitutionitself by Article 130 conferred such jurisdiction on the SupremeCourt created by it. Counsel for the 1st Respondent contendedthat the provisions of Article 130 impliedly repealed section 82A.He stated that section 82A "goes out of the law" and that it hasnow "no place in law. In its place is Article 130." Counsel for the .2nd and 3rd Respondents did not go to that extent. He said thatsection 82A must be read subject to the Constitution.
In considering this matter one must be mindful of the fact thatthe Court of Appeal and the Supreme Court are both new Courtscreated by the Constitution. The Supreme Court that hithertoexisted ceased to exist. New jurisdictions have been conferred oneach of them with the primary object of affording a litigant thechoice of a second appeal to the Supreme Court. The Court of'Appeal has not been granted power to entertain appeals from thejudgments of its own Judges. One cannot therefore read "Court ofAppeal" instead of "Supreme Court" in section 82A of the Orderin Council. Furthermore appellate jurisdiction in election caseswhich is conferred only on the Supreme Court by the provisionsof Article 130 of the Constitution is entirely different to the juris-diction conferred by section 82A of the Order in Council. In itsoriginal form section 82A is at complete variance with the Cons-titution. Section 82A(1)(b) permits an appeal from any decisionof an Election Judge (other than that referred to in section 81)
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only if that decision finally disposes of the petition. This appeal isnot from a decision of that kind. The Constitution has made theSupreme Court the final Appellate Court (Article 118(c)) and it isthe final Court of Civil and Criminal appellate jurisdiction in theRepublic (Article 127(1)). It has sole and exclusive cognisance byway of appeal "from any order judgment, decree or sentence madeby the Court of Appeal" (Article 127(2)). Whereas section 82Apermits an appeal only from an order finally disposing of an Elec-tion Petition, Article 127(2) grants a right of appeal, inter alia,from any order. Interlocutory orders are therefore Appealable interms of Article 127(2). There is another fundamental and vitaldifference. Section 82A of the Order in Council grants a right ofappeal direct to the Supreme Court. The Constitution has prescri-bed the converse — it is indirect. An appeal lies from a final order,judgment, decree or sentence of the Court of Appeal only if thatCourt grants leave to appeal to the Supreme Court (Article 128(1)), or else, where the Court of Appeal has refused to grant suchleave the Supreme Court may grant special leave to appeal (Article128(2)). Article 128(2) refers expressly to an interlocutory orderas well, a type.of order not referred to in Article 128(1). It is clear•therefore that the Constitution took away and did not counte-nance a direct right of appeal to the Supreme Court. That this wasdeliberate necessarily stems from the fact'that the Constitutionsought to make available a second right of appeal where noneexisted under the law existing at the time of enactment of theConstitution. This contention is fortified by the fact that Article128(4) makes provision for a right of direct..appeal to the SupremeCourt in the future. It reads thus —
"128(4) An appeal shall lie directly to the Supreme Courton any matter and in the manner specifically provided for byany other law passed by Parliament."
Such legislation has now been passed by Parliament (Vide sec-tion 102 of Parliamentary Elections Act No. 1 of 1981). It seemsto me that in this confrontation the Constitution must prevail. Aswas stated by Lord Wilberforce in Minister of Home Affairs v.Fisher (1973) (3 A.E.R. 21 at 26)^) a Constitution is a document.sui generis "calling for principles of interpretation of its own,suitable to its character …. ./without necessary acceptance of allthe presumptions that are relevant to legislation of private law."One Of the salient facts is that this Constitution sought to effacethe existing structure with regard tp appeals and created in itsstead a new one by the creation of two different Courts and at thesame time removing altogether a direct right of appeal to theSupreme Court. There is also the admonition contained in Article101(2) that the provisions of the Order in Council must be read
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subject to the Constitution. The Constitution is the “SupremeLaw of the Democratic Socialist Republic of Sri Lanka" (Videpreamble to the Constitution). That supremacy cannot tolerateconfrontation by subordinate legislation. Such legislation if not inharmony with the Constitution must necessarily give way to theConstitution. Section 82A of the Order in Council and the Cons-titution cannot stand together. The only appellate jurisdiction inElection cases existing at the relevant time was that conferred onthe Supreme Court by Article 130 of the Constitution. Themanner of exercising that jurisdiction was set out by Article 128of the Constitution. One cannot accept the former and disregardthe latter.*
i
Counsel for the Petitioner contended that the provisions of theConstitution were not applicable to an appeal in an Election Peti-tion because an election case was not a civil matter within themeaning of Article 127 or Article 128. Article 128 refers to a rightof appeal from any final order etc. in any matter or proceedings"whether civil or criminal." It seems to me to grant power in thewidest possible terms by the use of the words "any matter or pro-ceedings." Where there is a final order, judgment, decree or sen-tence of the Court of Appeal an appeal lies to the Supreme Court.Its object is to permit an aggrieved party the right to canvas anydetermination of the Court of Appeal of the kind referred to pro-vided it is done in the manner set out in that Article. As I see itthe words "whether civil or criminal" are parenthetical, are notintended to be an exhaustive enumeration, and cannot thereforedetract from the plenitude of power given by that Article. For thepurposes of the appeals (Privy Council) Ordinance (Chapter 85) anapplication to the Supreme Court for a Writ of Certiorari to quashthe order of an election Judge was held to be a civil suit or actionwithin the meaning of section 3 of the Ordinance. The SupremeCourt called in aid the definition of "action" in section 3 andsection 6 of the Civil Procedure Code (Chapter 86). in re Goone-sinha (44 N.L.R. 75)^). The words used in the Constitution are"civil matter or proceeding." These are of wider import than "civilsuit or action." In terms of section 81 the Election Judge has todetermine whether the 1st Respondent was duly returned orwhether his election was void. The right to be elected, like theright to vote, is a right of a civil nature and the judgment in anelection case decides the rights of parties derived from the Cons-titution. Vide Rao v. Bhaskararao (1964 A.I.R. 185 A.P.)^).The Election Judge is not deciding criminal liability. In fact theOrder in Council requires a prosecution to be launched for anyalleged offence disclosed at the hearing of an election case, andthat can only be done with the sanction of the Attorney-General.
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.1 am of the opinion that an election case is a civil matter or pro-ceeding in which the civil appellate jurisdiction of the SupremeCourt could be invoked.
I overrule the objection taken by the Petitioner and hold thatthe 1st Respondent's appeal is properly constituted and thereforemaintainable in this Court. The Respondents will be entitled tothe costs of this inquiry.
WEERARATNE, J. – I agree.
SHARVANANDA, J.
I agree with the judgment of the Chief Justice.
Since the interpretation of certain provisions of the Constitu-tion is involved in the question to be decided, I am setting downbelow my own judgment on the matters in issue.
The 1st respondent-petitioner contested the Anamaduwa seatin Parliament at the bye-election held on the 7th of May 1980 andwas declared, to be elected by a majority of 1,787 votes to repre-sent the Electoral District of Anamaduwa in Parliament.
The petitioner-respondent presented an election petition in theCourt of Appeal challenging the validity of the said bye-electionand the election of the petitioner to the said seat on several.grounds set out in his petition. A sum of Rs. 25,000/-was tende-red on behalf of the petitioner-respondent as security for the pay-ment of all costs, charges and expenses that may become payableby him. The 1st respondent-petitioner filed a statement-objectingto the petition being entertained by the Court of Appeal and pray-ing for its dismissal in limine on the grounds that
the said petition had not been filed within the prescri-bed time; and
the security furnished was insufficient in terms of theCeylon (Parliamentary Elections) Order-in-Counci I 1946 andthe rules made thereunder.
The 2nd and 3rd respondents were also made parties to hispetition by the petitioner-respondent. They also filed statementsof objection on the same grounds.
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By its order dated 8th October 1980, the Court of Appealrejected the preliminary objections and held that the said petitionhad been filed within time and that the security that had been fur-nished was adequate.
The 1st respondent-petitioner and the 2nd and 3rd respondentseach filed applications for special leave under Article 128(2) of theConstitution to appeal to the Supreme Court from the said orderof the Court of Appeal dated 8th October 1980. By its orderdated 21st January 1981, this Court granted special leave toappeal, but reserved to the petitioner-respondent the right to raiseany preliminary objection to the jurisdiction of this Court to hearthe appeal from the aforesaid order made by the Court of Appealdated 8th October 1980.
When, in pursuance of the leave granted by this Court, the 1strespondent-petitioner's aopeal came up for hearing on 1st June1981, Counsel for the petitioner-respondent raised a preliminaryobjection to the hearing of the appeal by this Court on the groundthat Article 130 of the Constitution does not enable this Court toentertain and hear this appeal, as the order appealed from was notan order, from which an appeal lay to the Supreme Court undersection 82A of the Ceylon (Parliamentary Elections) Order-in-Council 1946. According to him, under Article 130 the SupremeCourt had the power to hear and determine only an appeal from.an order or judgment of the Court of Appeal as specified insection 82A of the Ceylqn (Parliamentary Elections) Order-in-Council 1946, and since the said section 82A provided only for anappeal on a question of law against the decision of an ElectionJudge which had the effect of finally disposing of an electionpetition, no appeal lay to this Court from the order made by theCourt of Appeal in this case, as the said, order did not have theeffect of finally disposing of the election petition. The burden ofhis argument was that the jurisdiction of this Court to hear appealsin election petitions was confined to the determination or adecision referred to in the said section 82A and that Article 130 ofthe Constitution did not enlarge that jurisdiction.
‘ The preliminary objection raised by Counsel for the petitioner-respondent involves consideration of certain sections of theCeylon (Parliamentary Elections) Order-in-Council 1946 (herein-after referred to by the number of the section) and certain Articlesof the Constitution of the Democratic Socialist Republic of SriLanka (hereinafter referred to by the number of the Article).
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Section 82A provides as follows:
"(1) An appeal to the Supreme Court shall lie on anyquestion of law, but not otherwise against —
the determination of an Election Judge under section81, or
any other decision of an Election Judge which has theeffect of finally disposing of an election petition.
(2) Any such appeal may be preferred either by the petitio-ner or by the respondent in the election petition before theexpiiy of a period of one month next preceding the date of thedetermination or decision against which the appeal is preferred.
Every appeal under this section shall be heard by three- Judges of the Supreme Court."
Section 82B{5) declares that the decision of the SupremeCourt on any appeal shall be final and conclusive.
Article 101(1) provides for Parliament making provision in res-pect of elections, including, inter alia, the manner of determina-tion of disputed elections and such other matters as are necessaryor incidental to the election of Members of Parliament.
Article 101(2) states that "until Parliament by law makes provi-sion for such matters, the Ceylon (Parliamentary Elections) Order-in-Council 1946 as amended from time to time shall, subject tothe provisions of the Constitution, mutatis mutandis, apply.
Article 169(2) reads as follows:
"The Supreme Court established under the Administrationof Justice Law, No. 44 of 1973, shall, on the commencement ofthe Constitution, cease to exist… Unless otherwise provided inthe Constitution, every reference in any existing written law tothe Supreme Court shall be deemed to be a reference to theCourt of Appeal."
Thus, when sections 82A and 828 are read with Article 169,'Court of Appeal' has to be substituted for the 'Supreme Court'in the said sections 82A and 82B, and it would appear that theappellate jurisdiction that was vested in the outgoing SupremeCourt stands transferred to the present Court of Appeal. But,according to the scheme of the Constitution, the appellate juris-
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diction of the Court of Appeal is confined only to the correctionby way of appeal of all errors committed by a court of firstinstance (vide Art. 138) and does not extend to the correction ofany error committed by itself when trying election petitions underArticle 144.
Article 130 has vested the Supreme Court with the appellantjurisdiction in election petitions.
Article 118 spells the jurisdiction of the Supreme Court. Itstates that the Supreme Court shall be the highest and finalsuperior court of record in the Republic and shall, subject to theprovisions of the Constitution, exercise, inter alia, final appellatejurisdiction and jurisdiction in election petitions. Articles 127 and128 deals with the appellate jurisdiction of the Supreme Court.Article 130 sets out the jurisdiction of the Supreme Court in elec-tion petitions. It states:"The Supreme Court shall have the power tohear and determine and make such orders as provided for by lawon —
a legal proceeding relating to the election of the President;
any appeal from an order or judgment of the Court ofAppeal in an election petition case.
'Law' is defined in Article 170 to mean any Act of Parliamentand any law enacted by any legislature at any time prior to thecommencement of the Constitution. The Constitution which wasenacted prior to the commencement of the Constitution but cameinto force on 7th September 1978, the day appointed by thePresident by Proclamation (Art. 170 and 172) comes within theambit of the definition of 'law' and since it is the Supreme Lawof the Republic (vide the Preamble to the Constitution), its pro-visions supersede all earlier law. Accordingly, on the terms of Arti-cle 130, "the power to hear and determine and make such ordersas provided by law" can refer only to the appellate jurisdiction ofthe Supreme Court set out in Articles 127 and 128. Articles 118,127, 130 and 138 taken together make manifest that the SupremeCourt established by the Constitution alone is endowed withappellate jurisdiction in election petitions and not the Court ofAppeal. Article 130 sets out the amplitude of such jurisdiction.This jurisdiction is not limited to appeal "on any question of law,but not otherwise, against the determination of an Election Judgeor any other decision of an Election Judge which has the effectof finally disposing of an election petition" as provided by section82A. The appellate jurisdiction under Article 130 embraces
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appeals from any order or judgment of the Court of Appealin an election petition case. This jurisdiction does not suffer fromthe limitations imposed by section 82A(1). The 'Order' referred toin Article 130 thus includes an order such as the order appealedfrom, namely an order overruling the preliminary objection withrespect to the sufficiency of security for costs. For the above rea-sons, the objection raised by Counsel for the petitioner-respondentcannot be sustained. However, the matter does not end there.Though Article 130 spells the appellate jurisdiction of theSupreme Court in election petitions, it does not indicate how suchjurisdiction is to be invoked by an aggrieved party. For an answerto that question, one has to look to Article 128 which enacts howthe appellate jurisdiction vested in the Supreme Court can be invo-ked and how the right of appeal to the Supreme Court is to beexercised. Article 128 is the gateway through which a party aggri-eved by an order or judgment of the Court of Appeal must pass toget the Supreme Court to exercise its appellate jurisdiction, whe-ther under Article 127 or under Article 130(b), on an appeal froman order such as the one appealed from In the present case. Interms of Article 128(2), the petitioner will have to obtain theleave of the Supreme Court to appeal. The petitioner does nothave an absolute right to appeal; it is. only a conditional rightThis Court may, in its discretion, grant special leave to appealonly when in its opinion the case or matter is fit for review by theSupreme Court, when it is satisfied that the question to be decidedis of public or general importance. Thus, though the SupremeCourt, may, under Article 130, have plenitude of appellate juris-diction from any order or judgment of the Court of Appeal inan election petition, whether on a question of law or otherwiseyet, since that jurisdiction can be reached only via Article 128, thepetitioner must satisfy the conditions prescribed by this Article toenable him to appeal to the Supreme Court. Under the provisionsof Article 128, until Parliament passes a new law specificallymaking such provision, no appeal lies direct to the Supreme Court;it is only with the leave of the Court itself or with the leave of theCourt of Appeal that an appeal lies to that Court. Since in the con-text of the Constitution 'Parliament' must mean the Parliamentconstituted under the provisions of the Constitution (vide Art. 62,162(1). 75), when Article 128(4) states that an appeal shall liedirectly to the Supreme Court on any matter and in the mannerspecifically provided for by any other law passed by Parliament,the 'law' there can have reference only to a new law passed by Par-liament after the coming into operation of the Constitution. Theearlier provisions of Article 128 prescribing the condition ofobtaining leave to appeal to that Court would thus continue tooperate as condition precedent in all cases of appeal to that Court
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until a new law such as the Parliamentary Elections Act, No. 1 of1981 (certified on 2J2.1.1981) which provides for direct appeal tothe Supreme Court in election petitions came into operation.Article 128(4) militates against the contention that under existing -law, such as the amended Ceylon (Parliamentary Elections) Order-in-Council 1946, an appeal will lie direct to the Supreme Court.Only a new law enacted by Parliament established by the Consti-tution can provide fora departure from the mandatory leave steps.The appeal provisions of the Ceylon (Parliamentary Elections)Order-in-C9uncil 1946 which are inconsistent with Article 128have to yield to the provisions of the Constitution (Art. 101(2).Thus, it was nothing but proper for the 1st respondent-petitionerto have obtained the leave of this Court to appeal to it. It was notcompetent for him to have directly appealed to this Court. Theimpact of Article 102(2) on the appeal-provisions of the Ceylon(Parliamentary Elections) Order-in-Council 1946 was to renderinoperative sections 82A, 82AA and 82B of the Order-in-Council.When the limited appellate jurisdiction of the Supreme Courtestablished under the Courts Ordinance/Administration of JusticeLaw was abolished, the rules prescribed to invoke that jurisdictionipso facto became defunct and could not be deemed to survive toregulate the enlarged jurisdiction of the new Supreme Court,especially when the Constitution has made the new SupremeCourt the final court exercising appellate jurisdiction in respect ofany order or judgment of the Court of Appeal in election petitionsand prescribed the procedure for the invocation of such appellatejurisdiction. An appellant invoking such jurisdiction thereforemust conform to that procedure.
Article 127(1) sets out the width of the appellate jurisdiction ofthe Supreme Court. Counsel for the petitioner-respondent vehe-mently contended that Articles 127 and 128 confines the area ofthe Supreme Court's appellate jurisdiction to civil and criminalappellate jurisdiction only. He submitted that election jurisdictionis sui generis and is not embraced within "civil and criminal juris-diction" of the Court. In support of his submission, he referred usto the judgments of the Privy Council in Senanayake v. Navaratne(56 N.L.R. 5)^), De Silva v. Attorney-General (50 N.L.R. 481 )(6)and to the judgment of the Court of Appeal in De Silva v. Senana-yake (75 N.L.R. 265)(5). |n refusing special leave to appeal toHer Majesty in Council in the cases reported in 56 N. L. R. 5(4)and 50 N.L.R. 481(6), the Privy Council based its decision on thefact that section 82B of the Parliamentary Elections Order-in-Council made the decision of the Supreme Court final and conclu-sive and stated that Her Majesty's prerogative to entertain anappeal would not be exercised when it was not the intention of
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the Order-in-Council to create a tribunal with the ordinary inci-dent of an appeal to the Crown. The Privy Council did not gointo the question whether election jurisdiction partook of thenature of civil or criminal jurisdiction, but was concerned onlywith the question whether Her Majesty's prerogative to grant leaveto appeal should be exercised when the Order-in-Council mademanifest that the judgment of the Supreme Court should be finalin election matters.
The Court of Appeal as it existed in 1972, by its judgmentreported in 75 N.L.R. 265(5) when rejecting an application forleave to appeal to that Court, laid stress on the provision insection 82B(5) that the decision of the Supreme Court on anyappeal shall be final and conclusive and further held that anElection Judge in determining an election petition was not dealingwith a civil cause or matter within the meaning of section 8(1)of the Court of Appeal Act, No. 4 of 1971. In my view, the wordsin Article 127, "the Supreme Court shall be the final Court ofcivil and criminal appellate jurisdiction", are not words of limita-tion restricting the jurisdiction of the Supreme Court, but arewords of amplitude descriptive of the comprehensive jurisdictionof the Court. In the context in which they are used, the twocategories of jurisdiction, civil and criminal, were intended tocomprehend all jurisdictions of whatever nature. It is to be notedthat Article 118 states that "the Supreme Court shall be thehighest and final superior court of record and shall exercise finalappellate jurisdiction." In my view, the Constitution intended thedichotomy of "civil- and criminal jurisdiction" to be exhaustiveand that between them embraced all proceedings of whatevernature. An election proceeding is, in any event, a civil proceeding,as was held by the Full Bench of the Andhra Pradesh High Courtp.Rao v. Bhaskararao (A.I.R. (1964) Andh. Pra. 185)(3). Rightsof a civil nature are in issue in an election petition.
Article 127(2) sets out what the Supreme Court can do in theexercise of its appellate jurisdiction. I
I agree with the view fexpressed by Samarakoon CJ. with theconcurrence of Thamotheram J. and Wanasundera J. in rejectinga similar preliminary objection as was raised in this appeal on anapplication for leave to appeal in the Kalawana Election Petitioncase in PHapitiya v. Muttettuwegama (S. C. Application No. 15of 1979; S. C. Minutes of 25th May 1979)(?) that Article 128applies to interlocutory orders of the Court of Appeal in electionpetitions.
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For the reasons set out above, I overrule the preliminary object-ion of Counsel for the petitioner-respondent and I hold thatan appeal lies under the Constitution to this Court from the orderof the Court of Appeal and that the respondent-petitioner hadcorrectly applied for and obtained the leave of this Court to.appeal to this Court and that it was not competent for him to havepreferred an appeal direct to this Court
The petitioner-respondent will pay the 1st respondent-petitio-ner in S.C. Appeal 1/81 and the 2nd and 3rd respondent- petitio-ners in S.C. Appeal 2/81 and 3/81 the costs of the inquiry into thepreliminary objections.
WANASUNDERA, J.
These three petitions of appeal before.us are by the 1st, 2nd and3rd respondents to the election petition (hereinafter calledrespondents), filed against them by the petitioner-respondent inrespect of the Anamaduwa Seat (Electoral District No. 104). Theyare consolidated and taken up for hearing together. The respon-dents had earlier come before this Court and sought special leave,in terms of Article 128 (2) of the Constitution, to canvass anorder made by the Election Judge relating to the adequacy ofsecurity. At the hearing of the application for special leave,counsel for the petitioner-respondent indicated to Court that hewished to take up a preliminary objection. He submitted that thejurisdiction of the Supreme Court to hear appeals in electionmatters is restricted to the grounds set out in section 82A of theCeylon (Parliamentary Elections) Order in Council 1946 and thatthere is no right of appeal in regard to an interlocutory order ofthe Court of Appeal which does not have the effect of finallydisposing of an election petition. This Court, on that occasion,while granting special leave to the respondents reserved the right/to the petitioner-respondent to raise this point when the appealsare taken up for hearing. Our grant of leave was thereforeconditional.
Mr. Shanmugalingam has now taken up this objection againbefore us. He has submitted that jurisdiction in respect of electionmatters is in the nature of a special jurisdiction conferred on thecourts. The powers of the present Supreme Court in respect ofelection matters, he points out, are to be found in the provisionsof Article 118 (e) and Article 130 (b) of the Constitution. Theseprovisions, he submits, relate to the forum forbearing the appeal,but do not deal with the right of appeal as such. His position isthat we must look to the provisions of section 82A of the Ceylon
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(Parliamentary Elections) Order in Council 1946 to find out theextent of the right of appeal given to an aggrieved person. Thisprovision, he states, sets out in detail the precise kind of orderfrom which an appeal will lie to the Supreme Court. Under section82A, an appeal is granted only on a question of law against —
the determination of an Election Judge under section 81, or
any other decision of an Election Judge which has the effectof finally disposing of an election petition.
He developed his arguments by referring to the provisions ofArticle 101 of the Constitution which provides for keeping alivethe provisions of the Ceylon (Parliamentary*Elections) Order inCouncil 1946. He stated that the operation of the provisions ofArticle 169 (2) of the Constitution, when applied to the Ceylon(Parliamentary Elections) Order in Council, merely substitutes oneforum for another and should not be read so as to imply anyalteration in the conditions of appeal laid down in section 82A.Mr. Shanmu gal ingam submitted that the general appellateprovisions contained in Articles 127 and 128 of the Constitutionhave no application to an election petition proceeding, becausean election petition proceeding is neither a civil nor a criminalmatter, but a proceeding sui generis.
Mr. Choksy for the 1st respondent has submitted that Articles118, 127, 128 and 130 Of the Constitution are interconnectedand they set out various aspects of the jurisdiction of the SupremeCourt, which is a general jurisdiction. He has submitted that, sincethe previous Supreme Court has ceased to exist, the provisions ofsection 82A of the Ceylon (Parliamentary Elections) Order inCouncil, which applied to that Supreme Court, have now beensuperseded by the provisions of Article 130 of the present Consti-tution. That Article 130 (b) contains no limitations on the right ofappeal unlike 82A of the Ceylon (Parliamentary Elections) Orderin Council. Mr. Choksy contends that an appeal will now lie to theSupreme Court from any order or judgment of the Court ofAppeal in an election petition case. Such an order can be anyinterlocutory order and is not confined to the kind of order thatsection 82A contemplated. His position is that, while the jurisdic-tion of the Supreme Court is contained in Article 118 (e) andArticle 130 (b) of the Constitution, the provisions relating to theexercise of that jurisdiction, namely the manner of appealing and.the nature of the powers of the Supreme Court in regard to suchappeals, are found in Articles' 127 and 128 of the Constitution.He submits that an election proceeding is a civil matter and distin-guished a number of local cases which suggested a contrary view.He submitted that the procedure to come to this Court by way of
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Article 128 (2) of the Constitution taken by him is the propermanner of preferring an appeal.
Mr. Satyendra who appeared for the 2nd and 3rd respondentsstressed the primacy of the constitutional provisions over theCeylon (Parliamentary Elections) Order in Council and submittedthat Article 118 merely contains a general statement of jurisdic-tion area-wise or function-wise and that that jurisdiction is speci-fically vested in the Supreme Court by Article 130. Thoughjurisdictiqn over election petitions are contained in Article 118 (e)and Article 130, it is necessary to look to Articles 127 and 128, asMr. Choksy had already pointed out, to find out as to how thatjurisdiction can be invoked. He relied on the Indian decision ofRao v. Bhaskararao (1964 A.I.R. 185, A.P.)^) to show that anelection proceeding, whether in its original capacity or in appeal, isa civil suit or action so as to bring it within the wording of Articles127 and 128. Alternatively, he submitted that whether or not theprovisions of section 82A of the Ceylon (Parliamentary Elections)Order in Council continued in force, the Supreme Court is vestedby the Constitution with the power to grant Special Leave underArticle 128 (2), where the conditions set out there are satisfied,and that this overriding power cannot be taken away or affectedby anything contained in the Ceylon (Parliamentary Elections)Order in Council, which must be regarded as ordinary legislation.
Upon a consideration of these arguments, it seems to me thatthere are two main issues that arise for our consideration. The firstis whether Article 130 (b) of the Constitution has supersededsection 82A (1) of the Ceylon (Parliamentary Elections) Order inCouncil as regards the kinds of orders from which an appeal can bebrought before the Supreme Court. The second question is asregards the procedure to be followed in appealing and whether wehave now to look to the provisions of the Ceylon (ParliamentaryElections) Order in Council or to Articles 127 and 128 of theConstitution for this purpose. Both these questions are matters ofconsiderable complexity.
The Ceylon (Parliamentary Elections) Order in Council 1946was part and parcel of the constitutional documents relating to thedevolution of independence on this country. Much of the provi-sions relating to elections in this'enactment followed earlier legis-lation, which provided for a disputed election to be challenged byway of an election petition before an Election Judge. Neither theearlier law nor the Ceylon (Parliamentary Elections) Order inCouncil 1946, when originally enacted, gave a right of appeal froma determination of an Election Judge. Not balked by this, partieswho lost at the trial and believed they had a lawful grievance, tried
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every effort to get redress. The ingenuity of their legal advisers hadsuggested writ proceedings and applications for leave and specialleave to the Privy Council to canvass the determination of theElection Judge, but none of these methods had succeeded. Thedecided cases were to the effect that the jurisdiction given to thecourts to entertain election petitions was of a peculiar nature andthat the relevant legal provisions did not evince an intention onthe part of the legislature of creating a tribunal with the ordinaryincident of giving a right of appeal or review from its orders.G.E.De Silva v. Attorney-General (50 N.L.R. 481) (6)
By Act No. 19 of 1948, however, a right of appeal on aquestion of law from the final determination of an Election Judgewas conceded for the first time when it appeared to the legislaturethat a party to an election petition may be unjustly treated inconsequence of an erroneous decision on a question of law by theElection Judge. Later, in consequence of the decision inRamalingam v. Kumaraswamy (55 N.L.R. 145^ which called forremedial action, amendment No. 19 of 1959 was enacted, bringingin the provisions of section 82A (1)(b) which widened the appel-late powers by providing an appeal also on a question of law fromany other decision of an Election Judge, which has the effect offinally disposing of an election petition, i.e. from a particular kindof interlocutory order.
The effect of this provision was one of the matters that wasdebated in the case of Dissanayake v. Abeysinghe (75 N.L.R.12)(9). This case dealt with the adequacy of security given by apetitioner. The Election Judge held that the security was adequateand then proceeded to hear the petition and declared the electionof the respondent void. The appeal was argued on the basis that aninterlocutory appeal .did not lie in that case. At the conclusion ofthe trial and after the determination under section 81, the respon-dent in his appeal to the Supreme Court under section 82A (1 )(a)sought also to canvass the interlocutory decision regarding theadequacy of the security. Sirimane and Samarawickrema JJ., in amajority judgment, held that an incorrect decision of the ElectionJudge at the preliminary stage that the security is sufficient hasnothing to do with the determination at the conclusion of the trialreferred to in section 82 (1)(a) from which alone an appeal lay,and denied the appellant the opportunity of canvassing thatmatter in the appeal.
G. P. A. Silva, S. P. J., in a strong dissent, took a different view,He said that when an appeal from a determination under section82A {1)(a) is before the appellate court, the Supreme Court is
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empowered to look into any errors of law committed by theElection Judge culminating in the determination, particularly ifthey are of a jurisdictional nature. He referred to Rule 12 (3),which contained a prohibition against further proceedings in anelection petition if the required security has not been given by apetitioner.
The constitutional changes of 1972 brought no further changesexcept for one brought about by the Administration of Justice"Law, which was an enactment altering the structure of the courtsin terms of the Republican Constitution of 1972. The jurisdictionto try election petitions came to be vested in the hew High Courtestablished under the Administration of Justice Law and was to beexercised by a High Court Judge nominated by the Chief Justice —vide section 22, Administration of Justice Law, No. 44 of 1973.The appellate powers remained where they were.
When we look at the present Constitution, we see that itcontains a number of provisions relating to election law. ByArticle 144, the Court of Appeal is now vested with the jurisdic-tion to try election petitions. The appellate jurisdiction is vestedin the present Supreme Court by Article 118 (e). Article 130 hasspelt out that jurisdiction. Article 101 (2) keeps alive the Ceylon(Parliamentary Elections) Order in Council 1946 until Parliamentmakes provisions in respect of elections. This provision reads —
"Until Parliament by law makes provision for such matters,the Ceylon (Parliamentary Elections) Order in Council, 1946as amended from time to time, shall, subject to the provisionsof the Constitution, mutatis mutandis, apply."
It has been submitted that the statement in Article 130 that"the Supreme Court shall hear and determine and make suchorders as provided for by law. .and the last two lines of Article144, which states that the Court of Appeal shall exercise its juris-diction to try election petitions "in terms of any law for the timebeing applicable in that behalf," are referable to the Ceylon (Par-liamentary Elections) Order in Council.
By Article 101 (1), the Constitution has expressly reserved thepower to Parliament to substitute new legal provisions for thematters provided in the Ceylon (Parliamentary Elections) Order inCouncil. Parliament has recently enacted Parliamentary ElectionsAct, No. 1 of 1981, covering that same ground. This new Act isprospective in operation and does not touch the present case.
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Counsel have also referred to Article 169 (2). This appears inthe chapter relating to Transitional Provisions. It is worded asfollows:—
"(2) the Suprem'e Court established by the Administrationof Justice Law, No. 44 of 1973, shall, on the commencement ofthe Constitution, cease to exist, and accordingly the provisionsof that Law relating to the establishment of the said SupremeCourt, shall be deemed to have been repealed. Unless otherwiseprovided in the Constitution, every reference in any existingwritten law to the Supreme Court shall be deemed to be a refe-rence to the Court of Appeal."
This provision appears tautologous in so far as its application.to the present case. The Constitution has, in express terms, vestedjurisdiction in regard to election petitions in two new courts crea-ted by the Constitution – the original jurisdiction in Appeal Courtand the appellate jurisdiction in the new Supreme Court. To thatextent the question of the forum for the hearing of appeals fromsuch petitions can be said to be "otherwise provided in the Consti-tution." Article 169 (2) thus has little bearing on this matter.
. On a careful examination of all these provisions, it seems to methat our present Constitution has vested the Supreme Court, inexpress terms, with jurisdiction in respect of appeals from elec-tion petitions. This is one of the several jurisdictions given to theSupreme Court and itemised in Article 118 (e) and later expressedmore elaborately in Article 130. An examination of Article 118will show that seven different and varied kinds of jurisdiction havebeen vested in the Supreme Court, among which is this jurisdictionin election petition proceedings. That these are several jurisdic-tions is made evident by the fact that the term 'jurisdiction' isused in each and every one of the items (a) to (g) in Articles 118.There is no common denominator as it were in respect of thesedifferent jurisdictions. They are varied in nature, though vested inone institution, and appear to be separate facets of the authority'of .the Supreme Court. These different jurisdictions itemised inArticle 118 are separately spelled out in greater detail in thesucceeding Articles in sequence, so that each of these Articles isclearly referable to the items set out in Article 118 in that sameorder; Jurisdiction in respect of election petitions dealt with inArticle 13Q is thus referable to Article 118 (e) and is in the natureof a special jurisdiction.
It is only item (c) of Article 118 that was traditionally associ-ated with the jurisdiction of the Supreme Court. The others are
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additions of recent times by virtue of express provision, and items(b) and (d) show that the adding of new jurisdictions has conti-nued under the present Constitution. When we consider the histo-rical background, we find that the original section 82A (1) merelyintroduced a right of appeal to the Supreme Court and section82A (5) enjoined three Judges of the Supreme Court to hear suchappeals. This was because the Courts Ordinance or the prevailingenactments that dealt with the structure of the courts did notexpressly provide for an election petition jurisdiction as part ofthe ordinary im^g|j£tion of the courts. This appellate power wasthus in the nature of a special reference to three Judges of theSupreme Court.
The position then is that the jurisdiction in respect of appealsfrom an Election Judge in contradistinction to the manner ormethod of exercising that right of appeal must now be found inArticle 130 of the Constitution. Article 130 pre-empts the entirefield of jurisdiction and there is no room to drive a wedge toseparate the forum from its jurisdiction as Mr. Shanmu gal ingamsought to do. Article 130 gives a right of appeal "from an order orjudgment of the Court of Appeal in an election petition." Incontrast, the terminology in section 82A (1) is different and usesthe terms 'determination' and 'decision.' The 'decision' however isof the limited kind that is described there. The word 'judgment' isnot found in Part V of the Ceylon (Parliamentary Elections) Orderin Council, but is presumably intended to include the'determina-tion' mentioned in section 80C, 81 and 82A. The other word'order' is an appropriate term for interlocutory orders and is usedin Article 130 unqualified and without any limitations. This is asignificant innovation which counsel for the respondents rightlystressed. There can be little doubt that Article 130 is a constitu-tional pronouncement in regard to the appellate jurisdiction of theSupreme Court in election petition proceedings. It has broughtabout a significant change in the law and appears to be muchwider in scope than section 82A of the Ceylon (ParliamentaryElections) Order in Council.
In my opinion, a ruling on the precise ambit of Article 130 isnot called for in the present case. It would be sufficient to observethat the present matter involves a question of law from an inter-locutory order which could have had the effect of finally disposingof the election petition if the objection had been upheld. Thepresent case falls within the provisions of Article 130 (b), whichon the face of it does not contain the limitations found in section82A (1)(b). The wording of Article 130 is probably the result ofthe decision in Dissanayake v. Abeysinghe (supra), where several
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shortcomings in section 82A (1) were pointed out by the Judges.G. P. A. Silva, S. P. J., referred to "the palpable injustice of oneparty to a suit being given a right of appeal against an erroneousdecision, while the other party is denied such a right." On theother hand, Sirimane J. asked pertinently, "if, at the conclusion ofa trial, it has been conclusively proved that a candidate has beenguilty of bribery, intimidation and other corrupt and illegalpractices, would it not be an anomaly if he is entitled to sit inParliament, if it could be successfully argued in appeal that thetrial Judge had erred on the question of.security."
Admittedly, the previous state of the law had room for impro-vement. When one considers the history of election law, one findsthat the evolution of appellate rights in election petition procee-dings has been both a piecemeal and a trial and prror process. Oneanswer to the criticism contained in Dfssanayake's case (supra)was to give either party to an election'petition a right of appealto the Supreme Court both from an interlocutory order and alsofrom the final determination, ft may therefore not be accidentalthat the wording of Article 130 of the Constitution and section102.(1) of the new Parliamentary Elections Act is .suggestive ofthis.
In fact, the new Parliamentary Elections Act, No. 1 of 1981,referred to more fully later, sets out the jurisdiction of theSupreme Court in terms very similar to those contained in Article130. The language used in section 102 (1) of the new Parliamen-tary Elections Act shows that Parliament itself has understoodArticle 130 in the same manner as I have done and proceeded tolegislate on that basis. The task of interpreting the law and theConstitution is, no doubt, assigned to this Court and though weare not bound by the views of Parliament on a matter of construc-tion, we can legitimately have regard to its views when such viewscan be shown to have some relevance, as I shall show later in thisjudgment. For these reasons I am of the view that the objectionraised by Mr. Shanmugalingam in the manner he has formulatedit, is not entitled to succeed.
The second question before us relates to the procedure ofappealing in contradistinction to appellate jurisdiction itself. Is theprevailing procedure to be found in Articles 127 and 128 of theConstitution or, do sections 82A, 82B and 82C of Ceylon (Parlia-mentary Elections) Order in Council continue to apply ? Theappellants have had recourse to the appellate procedure providedin Article 128 of the Constitution. In the course of his arguments,Mr. Shanmugal ingam referred in passing to the fact that if the
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provisions of Article.128 do not apply to the manner of filing anappeal, then the appellants have misconceived their remedy andconsequently there is no valid petition of appeal before Court.Although this point has not been specifically stated in the initialobjections, it has emerged before us in the course of the hearing. Itis in a way consequential to the preliminary objection and is alsoa question of law of a fundamental nature. This court, I think, isobliged to consider it and make a pronouncement.
I have earlier referred to the fact that jurisdiction vested in theSupreme Court in respect of election petitions is a separate andspecial jurisdiction and should not be subsumed under a conceptof a general appellate jurisdiction. Both Mr. Choksy and Mr. Sat-yendfa contended in favour of such a common jurisdiction andsubmitted that Articles 127 and 128 provided the manner of theexercise of that common jurisdiction. They were accordingly atpains to show that an election petition is a civil or criminal matterso as to bring election petition proceedings within the wording ofArticles 127 and 128.
It seems to me to be profitless to embark on an inquiry to ascer-tain whether or not an election petition proceeding could bedesignated as a civil or criminal matter, because it is made on anassumption which does not appear to be sound. I am inclined tothe view both according to the canons of interpretation and onhistorical ground that the appellate power given to the SupremeCourt in election petition proceedings is a special and separatejurisdiction. The real question is, having regard to the nature ofthe special jurisdiction involved, whether it was also not intendedthat the special provisions relating to the manner of appealingcontained in the Ceylon (Parliamentary Elections) Order in Coun-cil should apply as against the more general provisions of Articles127 and 128 of the Constitution which are undoubtedly referableto the final appellate jurisdiction of the Supreme Court in respectof its ordinary civil and criminal jurisdiction. When the arrange-ment and the sequence of the Articles in Chapter XVI of the Cons-titution are examined, one sees that Articles 127 and 128 arereferable to item (c) of Article 118 and not to item (e) which dealswith election petition jurisdiction
There are other grounds for discounting the application ofArticles 127 and 128 to election petition proceedings. If Article130, which is substantive in nature, is subordinated to Article 128,which is of a procedural kind, then the plenary jurisdiction set outin Article 130 would be whittled down considerably. In place ofthe free and full right of appeal promised by Article 130, an
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aggrieved person would be given only a limited and conditionalright. Article 130 gives no indication that a petition of appealshould be conditional on a prior application for leave. No suchconstraint obtained in election petition appeals until now and anaggrieved party had always come before the court of appeal as amatter of right More significantly, the application of Article 128to Article 130 means the raising of the qualifying threshold for anappeal. To satisfy Article 128 it would now be necessary to have asubstantial question of law or a grave miscarriage of justice where-as Article 130 contains no such requirement and the Ceylon(Parliamentary Elections) Order in Council gives a right of appealon a bare question of law.
Since Article 130 deals with jurisdiction and is the controllingArticle, the subordination of this Article to a procedural Articlelike 128 is also impermissible unless there is an indication to thateffect in the Constitution. I have found no such indication. On thecontrary, when we contrast Article 127, which corresponds toArticle 130 but deals with the vesting of the ordinary civil andcriminal jurisdiction in the Supreme Court, we find an expressstatement that Article 127 should apply "subject to the Constitu-tion." It is this reservation that attracts Article 128 to Article 127and the absence of such reservation in Article 130 makes the vitaldifference. It is also difficult to believe that the legislatureintended any such limitations in regard to appeals from electionpetitions when the trend in recent times has been for a progressiveliberalisation of election petition procedure. To subordinateArticle 130 to Article 128 would undoubtedly be a retrogradestep.
The grant of a direct appeal to the Supreme Court, provided bythe Ceylon (Parliamentary Elections) Order in Council, is notsomething that does violence to the constitutional provisionsrelating to the arrangement of the appellate procedures. In fact,the Constitution recognises the possibility of having direct appealsas a method of access to the Supreme Court. Article 128. (4)states —
"An appeal shall lie directly to the Supreme Court on any
matter and in the manner specifically provided for by any other
law passed by Parliament."
In my view, an appeal to the Supreme Court in election petitionproceedings is one instance of such direct appeals which has beenkept alive by Article 101 (2) of the Constitution. The new Act,which deals with the identical matter and which the Constitutioncontemplated, provides for such a direct appeal.
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I have earlier referred to the opening words of Article 130.Article 130 begins –
"The Supreme Court shall have the power to hear anddetermine and make such orders as provided for by law..
I do not agree with counsel for the respondents that the words"as provided for by law" qualifies only the word 'orders'. I aminclined to take the view on grammatical considerations that itqualifies also the words 'hear and determine'. Again, the word'law' here, having regard to the definition of that term in Article170, is another pointer to the provisions of the Ceylon (Parliamen-tary Elections) Order in Council. It certainly cannot include theConstitution. The expression 'law' is defined as follows
" 'law' means any Act of Parliament, and any law enactedby any legislature at any time prior to the commencement ofthe Constitution and includes an Order in Council."
I think Mr Satyendra overtaxed his ingenuity when he submit-ted that the word 'law' here can include the Constitution. Iconfess that I find it difficult to imagine how the Constitution canbe regarded at one and the same time also as a separate and inde-pendent law which has been enacted prior to this selfsame Cons-titution. His submission was based on an erroneous view and afailure to recognise the distinction between, what may be termed,the constituent powers of Parliament and its ordinary legislativepowers.
An examination of the provisions of section 82A (2) and thesucceeding sections up to section 85 shows that the Ceylon (Par-liamentary Elections) Order in Council contains a complete codeof provisions in regard to the "hearing, determining and for themaking of orders in respect of election petitions." There are noequivalent provisions in the Constitution covering this sameground and what exists in the Constitution seems inadequate orinappropriate to deal comprehensively with an election petitionappeal, in particular, with the kinds of orders which are peculiar toelection petition proceedings.
It was Mr. Choksy who brought to our notice the ParliamentaryElections Act, No. 1 of 1981, enacted this year. This is in fact thelegislation contemplated by Article 101 (1) of the Constitution inrespect of Parliamentary elections, which is intended to replacethe existing Ceylon (Parliamentary Elections) Order in Council1946. This new Act No. 1 of 1981 has provision for the repeal of
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the Ceylon (Parliamentary Elections) Order in Council and for thenew Act to take its place. The case before us however continues tobe governed by the former law. Mn Shanmugalingam, I ratherthink, objected to our looking at this new material for the purposeof interpreting the provisions of the Constitution.
As stated earlier, the function of interpreting the Constitutionis vested solely in this Court and in this task we must primarilygo by the wording of the Constitution itself. It should be borne inmind that the new Act is specifically envisaged by the Constitu-tion and has been enacted in furtherance of that legislative plan.Further, the Constitution and this new Act are interconnected andhave an interacting effect. The language of the new Act in itsordinary meaning appears to reflect a certain understanding, orconstruction of the provisions of the Constitution. The fact thatthis legislation has been validly enacted and is final and conclusiveand cannot be called in question, would tend to give that under-standing some relevance if an issue arises as to whether or not anyof its provisions is in accord with the provisions of the Constitu-tion. In fact it is incumbent on us prima facie to regard this newAct as being in consonance with the provisions of the Constitutionand to interpret its provisions so that they are in harmony withthe Constitution.
Accordingly, the provisions of this new Act could have somebearing on both the issues which I formulated in the course ofthis judgment Regarding the first issue, the fact that section102 (1) of the new Act No. 1 of 1981 declares the jurisdiction ofthe Supreme Court in very much the same terms (though not in theidentical words) as in Article 130 (b) and without the limitationscontained in section 82A of the Ceylon (Parliamentary Elections)Order in Council is an item in favour of Mr. Choksy's submission.If the jurisdiction of the Supreme Court is contained in section82A, as contended by Mr. Shanmugalingam, or if Article 130 (b)has to be construed in the light of the limitations contained insection 82A, then what was the need for a provision like section102 (1) of the new Parliamentary Elections Act, No. 1 of 1981 ?On the other hand, section 102 (t) appears to reflect what iscontained in Article 130 of the Constitution and blends harmoni-ously with it This goes to fortify the conclusion I have alreadyarrived at, that the right of appeal from a decision of an ElectionJudge is no longer subject to the limitations contained in section82A of the Ceylon (Parliamentary Elections) Order in Council.
The bearing this new legislation has on the second issue seemsto be even more decisive. We find in this new Act No. 1 of 1981 a
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reproduction, practically in their entirety, of the provisions ofthe Ceylon (Parliamentary Elections) Order in Council that relateto the time limit for appealing, procedures for appealing, partiesto such appeal, the grant of security, the kind of orders that canbe made, etc. If, as contended by the respondents, these mattersare all now governed by the Constitution (in fact there is noreference whatsoever to many of these matters in the Constitu-tion), then what was the necessity for reproducing them in thenew law when those provisions of the Ceylon (ParliamentaryElections) Order in Council had already been superseded by theConstitution ? A more relevant question is, could the legislaturehave enacted the new Act as ordinary legislation (and it has beenduly enacted in terms of the Constitution), if the matters contain-ed therein are already embodied in the Constitution and enjoy thedignity of constitutional provisions ? Would it not be morereasonable to take the view that what is now enacted in Act No. 1of 1981 was never a part of the constitutional provisions andtherefore it was competent for Parliament to legislate for thesematters in the form of ordinary legislation ?
The above views give further support to my earlier conclusionswhich were based on a pure analysis and construction of theconstitutional provisions. In my view, we have to look to theprovisions of the Ceylon (Parliamentary Elections) Order inCouncil for the appropriate procedures for appealing. Theseprovisions provide for a direct appeal to the Supreme Court andfor other subsidiary matters. This, as I have shown earlier, is aprocedure that was within the contemplation of the draftsman ofthe Constitution. In the present case these procedures have notbeen followed due to misapprehension of the law.
Before I conclude, I should like to say one word about thejudgment in PUapitiya v. Muttettuwegama (S.C. 15 of 1979)^).The application for Special Leave under Article 128.(2) of theConstitution was refused by Court and I concurred in that judg-ment. One of the matters referred to in the judgment is the rightof an aggrieved party in an election petition proceeding to come tothis Court by way of Article 128 (2). But as far as I can recall, thematter was not argued as fully as in the present case and in anyevent that judgment is not binding on this bench. '
In the result, the respondents have failed to comply with theprovisions of section 82A (2) of the Ceylon (Parliamentary Elec-tions) Order in Council, which was the only mode of access to thisCourt. The purported appeal before us is therefore invalid. We havethen no option but to reject this petition of appeal, even though
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the preliminary objection taken by Mr. Shanmugalingam relatedto a question of the appellate jurisdiction of this Court and didnot specifically deal with this matter.
The appeals are therefore rejected. I would order that half costsof appeal be paid to the petitioner-respondent by the 1st, 2nd and3rd respondents jointly.
ISMAIL, J. — I agree.
WIMALARATNE, J.
Article 101(2) of the Constitution of the Democratic SocialistRepublic of Sri Lanka ordains that until Parliament by law makesprovision for such matters the Ceylon (Parliamentary Elections)Order-in-Council, 1946 as amended from time to time, shall,…subject to the provisions of the Constitution, mutatis mutandis,apply. These appeals relate to the extent to which the Consti-tution has superseded those provisions of the Ceylon (Parliamen-tary Elections) Order-in-Council, in the matter of appeals inelection petition cases. I have had the benefit 'of reading thejudgments prepared by My Lord the Chief Justice and by mybrother Wanasundera, J. They have both taken the view thatArticle 130 of the Constitution has superseded section 82A(1)of the Order-in-Council in the matter of the scope of the right ofappeal in election petition cases. Whereas that section is limitedin scope in that it gives a right of appeal only from a determina-tion of an election judge under section 81, or from any otherdecision which has the effect of finally disposing of an electionpetition, Article 130 is wider in scope and empowers the SupremeCourt to hear and determine an appeal from any order orjudgment of the Court of Appeal in an election petition case. Asobserved by Wanasundera, J, this expansion of the scope of theright of appeal may be due to the anomaly resulting from thedecision in Dissariayake v. Abeysinghe (75 NLR 12)^. I am inrespectful agreement with the view expressed in both judgments-that in the context of Article 130, there could be no doubt thatthe Supreme Court is now empowered to hear and determine anyappeal from any order, final or interlocutory, made by an electionjudge. As to the repercussions this extension would have on thespeedy hearing and conclusion of election petitions is anothermatter, to which I shall revert later.
There is disagreement between the C~ • Justice and Wanasun-dera, J. with regard to the procedure in ppaal. The Chief Justice,has taken the view that section 82A of the Order-in-Council and
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the Constitution cannot stand together. As regards section 82B, C& D he states that when the term "Court of Appeal” is substitutedfor the term "Supreme Court" in compliance with Article 169(2),we are faced with further difficulty. The procedure in appeal andthe powers of the Supreme Court in appeal, in his judgment, arenow contained in Articles 127, 128 and 130 of the Constitution.Wanasundera, J. takes the view that the procedure in appeal froma judgment or order of an election judge is still contained insections 82A(2) to (5), 82B, C & D, and that those provisions arenot inconsistent with the Constitution. That is to say, a party dis-satisfied with an order of an election judge has to prefer an appealto the Supreme Court in -terms of section 82A(2) of the Order-injCouncil. When an appeal is so preferred the powers of theSupreme Court are exercised in terms of Section 82B. Theremedy of an aggrieved party therefore is not to invoke the powersof the Supreme Court under Article 128(2) by seeking leave toappeal, but to prefer an appeal in terms of section 82A(2).
I regret I am unable to agree with My Lord the Chief Justice onthis aspect of the appeals. I am in entire agreement with the con-clusion reached in the judgment of Wanasundera, J. In view, how-ever, of the importance of the issue raised I wish to add a fewobservations of my own to the cogent reasons given for his con-clusion that as no appeals have been preferred by the appellantsaccording to law, these appeals should therefore be rejected.
The Ceylon (Parliamentary Elections) Order-in-Council gover-ned the hearing of appeals in election petition cases from the timea right of appeal was first granted by Act No. 19 of 1948, for aperiod of about a third of a century. Notwithstanding changes inthe Constitution and in the laws establishing the several Courtsand vesting jurisdiction in them, namely, the Courts Ordinance(Cap. 6) and the Administration of Justice Law, No. 44 of 1973,the Order-in-Council was the law which, with amendments fromtime to time, set down the scope of the right of appeal, theprocedure in appeal and the procedure to be followed after theconclusion of an appeal. It was a special law, with a special pro-cedure, a special set of rules, and imposing consequences of aspecial nature. Whenever amendments were considered to benecessary, for example, extending the scope of the right of appeal,.they were effected not by amending the basic law or the lawvesting jurisdiction prevalent at the particular time, but by amen-ding the Order-in-Council. That the present Parliament also desiresto pursue the same appeal procedure is apparent when one perusesthe provisions of the Parliamentary Elections Act, No. 1 of 1981,which has been certified by the Speaker on 22.1.81 and which is
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to come into operation on such date as may be specified by thePresident by Order published in the Gazette. Section 130 of thatAct expressly repeals Part VI of the Order-in-Council, in whichPart is contained provisions relating to election petitions andappeals. On such date as the Order-in-Council is so repealed,almost identical provisions containing appeal procedure are toreplace the present appeal procedure. It is my view that until ActNo. 1 of 1981 comes into force, the provisions of the Order-in-Council pertaining to procedure in appeals will continue to apply.It is necessary to emphasise in particular the consequences thatwill inevitably ensue if the provisions of the Order-in-Councilrelating to appeals are not strictly complied with. Sections 82A(2)and the subsequent sub-sections constitute the special provisionsrelating to the procedure in appeal. Section 82B contains thepowers of the Supreme Court in such appeals. It is only upon anappeal preferred under section 82A that sub-section (2) of section82B empowers the Supreme Court to decide "whether the mem-ber whose return or election was complained of, or any other andwhat persons, was duly returned, or whether the election wasvoid." It also requires the Supreme Court "to issue a certificate ofsuch decision." These are special powers and duties. One cannotbut note the absence of such special powers and duties in theappeal procedure and powers contained in the Articles of theConstitution or in the Supreme Court Rules, 1978. What is more,section 82C provides that where the Supreme Court either aHowsor reverses the determination of the election judge, "the Courtshall transmit to the President the Certificate of the decisionissued under section 82B." This "follow up" procedure is con-tained in section 82D, which gives effect to the certificate sotransmitted. It is only on such transmission that the decision ofthe Supreme Court takes effect. It is only on such transmission ofthe Certificate that His Excellency is empowered to order bynotice published in the Gazette, the holding of a fresh electionwithin one month of the receipt by him of the Certificate, and "inaccordance with such certificate." Such certificate could be issuedby the Supreme Court, only by virtue of the powers vested in it bysection 82B; and these powers could be exercised by the Supreme'Court only in the event of an appeal being preferred under section82A. If, then, these special provisions contained in the Order-in-Council are not strictly complied with, a member who is unseatedby the decision of the Supreme Court in appeal, may yet findhimself not unseated. If the certificate contemplated in section82C is not transmitted to the President, His Excellency may notbe empowered to order the holding of a fresh election, in theevent of such step becoming necessary.
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It is probably to overcome these difficulties that Mr. Choksyargued that in Article 130 the words "as provided for by law"qualified only the word "Orders" but not the words "hear anddetermine"; that is, that whilst the Supreme Court is empoweredto make "orders" under sections 82B and C, yet the hearing anddetermination of the appeal has to be in compliance with Article128(2). I am unable to agree. The context in which the wordsappear leave no room for doubt in my mind that not only theorders made, but also the hearing and determination of an appealhave all to be "as provided for by law". "As provided for by law"can have no other meaning in the context than "as provided forby the Ceylon (Parliamentary Elections) Order-in-Council, 1946as amended" ; because "law" is defined in Article 170 as meaning"ariy Act of Parliament, and any law enacted by any legislature atany time prior to the commencement of the Constitution, andincludes an Order-in-Council".
Mr. Satyendra's contention that "law" in the context means"the Constitution" would, if accepted, lead to startling results.One such result that immediately comes to mind is that if "law"is equated to "the Constitution", then any "question relating tothe interpretation of the Constitution" would not be differentfrom any "question relating to the interpretation of the law" andsuch questions may be decided by any of the Courts in thehierarchy of Courts. But the Constitution vests that jurisdiction ofinterpretation of the Constitution exclusively in the SupremeCourt.
Mr. Shanmugalingam's explanation for the necessity for Article130 in the Constitution, when that power is already vested by theOrder-in-Council, is that otherwise an absurdity would arise as aresult of the application of Article 169(2) to section 82A. Thereseems to be some force in this submission, but it does not providean explanation as to why in Article 130 the powers of the.Supreme Court in appeal have been enlarged so as to enable theCourt to entertain an appeal from any order, final or interim.
Reverting to this enlargement of the scope of the right of appealI wish to state that the very laudable object in the form of anexhortation that "every endeavour shall be made to conclude thetrial of such petition within a period of six months from the dateof presentation of such petition" and introduced as section80C(2) by an amendment dated 1.3.70, would be almost impossi-ble to achieve, even with the best of endeavours on the part ofthe election judge, if a right of appeal is permitted from everyinterim order made by him. This exhortation is repeated in section99(2) of Act No. 1 of 1981 as well.
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In this connection it must be remembered that the electionjudge is a judge of a Superior Court; and a solution to the anomalyarising from the decision in Dissanayake v. Abeysinghe (9)would be to give an aggrieved party a right of appeal to theSupreme Court from any interim order, but to be exercised onlyat the conclusion of the trial of the petition. That, of course, is amatter for the legislature, not the Courts. We can only point outsuch anomalies for consideration by the legislature.
I am, therefore, of the view that whilst section 82A(1) of theCeylon (Parliamentary Elections) Order-in-Council, 1946 asamended, is inconsistent with Article 130 of the Constitution,the other provisions of the Order-in-Council relating to appeals,namely, sections 82A(2) to (5) 82B, 82C and 82D are not incon-sistent. As there are no appeals preferred in compliance withsection 82A(2) I agree with the judgment of Wanasundera, J. thatthe three appeals should be rejected.
RATWATTE, J.
I have had the advantage of reading the Judgments prepared bymy Lord the Chief Justice and by my brothers, Sharvananda, J.,Wanasundera, J., and Wimalaratne, J. The two main questionsthat arise for consideration on these three appeals have beensuccinctly formulated, if I may say so with respect, by Wanasun-dera, J. in his Judgment. In respect of the first question, that is,whether Article 130(b) of the Constitution of the DemocraticSocialist Republic of Sri Lanka (hereinafter referred to as theConstitution) has superseded Section 82A(1) of, the Ceylon(Parliamentary Elections) Order in Council 1946 (hereinafterreferred to as the Order in Council), as regards the kinds of ordersmade by an Election Judge from which an appeal can be taken tothe Supreme Court, I am in respectful agreement with the viewsexpressed in the Judgments of the Chief Justice, Sharvananda, J.,Wanasundera, J. and Wimalaratne, J. They have taken the viewthat Article 130(b) of the Constitution has superseded Section82A(1) of the Order in Council as regards the scope of the right ofappeal in election petition cases, and that the jurisdiction vestedin the Supreme Court under Article 130(b) of the Constitutiondoes not suffer from the limitations imposed by Section 82A(1)of the Order in Council, and that therefore the Supreme Court isempowered to hear and determine an appeal from an order of anElection Judge even though such an order does not have theeffect of finally disposing of an election petition.
As regards the second question formulated by Wanasundera, J.,that is, in regard to the procedure to be followed when one
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appeals in election petition cases, the Chief Justice and Sharva-nanda, J. have come to,the conclusion that the procedure to befollowed is contained in Article 127 and 128 of the Constitutionand that the three Applications for Special Leave to appeal to theSupreme Court filed in terms of Article 128(2) by the threeRespondents to the election petition, have been properly filed andthat the appeals are maintainable. I regret I am unable to agreewith this view.
On this question I am in respectful agreement with the viewexpressed by Wanasundera, J. and Wimalaratne, J. that theprocedure in appealing against a judgment or order of an ElectionJudge is still contained in Sections 82A(2) to (5), 82B, 82C and82D, and that those provisions are not inconsistent with theprovisions of the Constitution and that therefore the remedy of anaggrieved party in an election petition case is not to invoke thepowers of the Supreme Court by asking for Special Leave toappeal in terms of Article 128(2) of the Constitution, but by filingan appeal in terms pf Section 82A(2) of the Order in Council.When that is done the Supreme Court can exercise its powersunder Section 82D. Wanasundera, J. and Wimalaratne, J. havegiven cogent reasons for their views a and I have nothing further toadd.
As there are no appeals preferred in compliance with Section82A(2) of the Order in Council, I agree with the Judgments ofWanasundera, J. and Wimalaratne, J. that the three appeals shouldbe rejected. I also agree with Wanasundera, J. that there should beno costs.
Appeals rejected.