Legal Services and Laws of Sri Lanka
SLR - 1981 Vol.1, Page No - 287
WADIGAMANGAWA AND OTHERS
SAMARAKOON C. J., ISMAIL L J.,
WEERARATNE J., SHARVANANDA J.,
WANASUNDERA J., WIMALARATNE J.,
S. C- ELECTION PETITION
APPEALS 1/81 to 3/81
JUNE 1, 2 and 3, 1981.
Election Petition-Security -Does appealfrominterlocutoryorderlie?Section82A(1)(b)and101(2)oftheCeylon
(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 from an order of the Election Judge overruling an objection tosecuritywouldbe
governed by Section 82A (1 )(b) of the Ceylon (Parliamentary Elections) Order in Council or Articles 128, 127 and 130 ofthe
Constitution (2) whether the procedure to be followed in appealing istobefoundintheprovisionsoftheOrderin
Councilor in Articles 127 and 128 of the Constitution -
An election case is a civil matter or proceeding in which the civil appellate jurisdiction oftheSupremeCourtcouldbe
invoked. Article 130(b) of the Constitution has superseded Section 82A (1) of the Ceylon (Parliamentary Elections)Orderin
Council 1946 in regard to the scope of the right of appeal in election petition cases andthejurisdictionvestedinthe
Supreme Court under Article 130(b) of the Constitution does not suffer from the limitations imposed by s.82A(1) of theOrder
in Council. Jurisdiction 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 right of appeal from an order or judgment of the Court ofAppealinanelectionpetition.Theword
'order' is an appropriate term for interlocutory orders and is used in Article 130 unqualified andwithoutanylimitations
and is much wider in scope than s. 82A of the Order` in Council. The present matter involves aquestionoflawandcould
have, had the effect of finally disposing of the election petition if the objection had been upheld. The presentcasefalls
within the provisions of Article 130(b) of the Constitution. This Article doesnotcontainthelimitationsfoundins.
82A(1)(b) of the Order in Council.
contradistinction to appellate jurisdiction itself), sections 82A, 82B and 82C of the OrderinCouncilcontinuetoapply
rather than Articles 127 and 128 of the Constitution and as the appeals were not preferred under section s. 82A(2)whichis
the only mode of access to the Supreme Court the appeals have to be rejected.
Cases referred to
(1) Minister of Home Affairs v. Fisher  All. E. R. 21, 26
(2) In re Goonesingha (1942) 44 NLR 75
(3) Rao v. Baskararao A I R 1964 AP 185 ..
(4) Senanayake v. Navaratne (1954) ,56 NLR 5
(5) De Silva v. Senanayake (1972)75 NLR 265
(6) De Silva v. Attorney-General (1949) 50 NLR 481
7) Pilapitiya v. Muttettuwegama S. C. Application No. 15 of 1979, SC. Minutes of 25.5 1979
(8) Ramalingam v. Kumarasamy (1953) 55 NL R 145
(9) Dissanayake v. Abeysinghe (1972) 75 NLR 12
APPEALS from the orders of the Court of Appeal in Election Petitions 1/81, 2/81 and 3/81 ,
K. N. Choksy with V. Basnayake, H. Jayamaha, S. Ruthramoorthy, R. Perera, S. Peiris and A. Kasturiaratchi for 1st respondent-
petitioner in Appeal No. 1/81 who is 1st respondent-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 in Appeal No. 2/81 and 3rd respondent -petitioner in Appeal No. 3181
K. Shanmugalingam with L. B. R. Fernando and G. Dayasiri for petitioner-respondent:
July 13, 1981
SAMARAKOON, C. J.
This is a matter that arises out of an Election Petition filed in the Court of Appeal, A bye-election was heldof7thMay,
1980, to . elect a member of Parliament for the Electoral District No. 104 - Anamaduwa- At thesaidbye-electionthe.1st
Respondent Petitioner hereinafter referred to as. 1st Respondent) was declared elected. That election was challengedinthe
Court of Appeal in these proceedings by the Respondent-Petitioner (hereinafter referred toasthePetitioner)onvarious
charges. Charges were also laid against the 2nd and 3rd Respondent-Respondents(hereinafterreferredtoas2ndand3rd
Respondent respectively). At the hearing before the Court of Appeal the Respondent took objection to the sufficiencyofthe
security deposited by the Petitioner. The details of such objection d re not relevant for the presentinquiry.Suffice.it
to state that the Court of Appeal held that the securitydepositedbythePetitionerwassufficientinlaw.The1st
Respondent appeals to this Court from that decision. The2ndand3rdRespondentssupportthecontentionofthe.1st
Respondent. The Petitioner has by way of a preliminary objection challenged the right of the 1st Respondenttoappealfrom
the order and the right of this Court to hear and determine an appeal on an interlocutory order. Counsel for thePetitioner
contends that the provisions of section 82(1) (b) of the Ceylon (Parliamentary Elections) Order in Council (Chapter381)do
not pen-nit such an appeal. Counsel for the 1st Respondent and Counsel for the 2nd and 3rd Respondents both contend thatthe
provisions of the Constitution which govern this appeal permit the appeal. It is necessary therefore to decide whichofthe
provisions referred to, apply to this appeal.
The provisions of the Order in Council 1946 as amended by Act No. 19 of 1948 (Chapter381)permittedappealsinelection
petitions to the Supreme Court constituted under the Courts Ordinance (Chapter 2). The petition itself was heard by asingle
Judge of the Supreme Court who was nominated by the Chief. Justice (and referred to as 'Election Judge') and anappeal.lay
to the Supreme Court in terms of section 82A. The Administration of Justice Law No. 44 of 1973 which came intooperationin
1973 vested the jurisdiction to hear and determine election petitions in the High Court. (Vide section 22Administrationof
Justice Law No. 44 of 1973). Appeals from the decision of the High Court continued to be filed in termsofsection82Aof
the Order in Council in the Supreme Court which by then had been constituted under the Administration ofJusticeLaw.That
Supreme Court was abolished by the provisions of the Constitution of the Democratic SocialistRepublicofSriLanka1978
(hereinafter referred to as the Constitution). The Constitution vested jurisdiction to hear ElectionPetitionsinanewly
created Court of Appeal. The President of the Court of Appeal nominated the Election Judge tohearaparticularpetition.
The Supreme Court created under the Administration of Justice Law ceased to exist and a new SupremeCourtcameintobeing
under the Constitution. The Application for special leave to appeal has been filed in this case in termsofArticle128(2)
of the Constitution'. Counsel for the Petitioner contends that this Article is not applicable to this electionpetitionand
that the provisions of section 82A of the Order in 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 any question of law, but not otherwise, against
(a) the determination of an Election Judge under section 81, or
(b) any other decision of an Election Judge which, has the effect of finally disposing of an election petition.
(5) Every appeal under this section shall be heard by three Judges of the Supreme Court and shall, as far as practicable,be
given priority over other business of that court. The court may give all such directions asitmayconsidernecessaryin
relation to the. hearing and disposal of each appeal."
It is clear from these provisions that-
(a) an: appeal lies only on a question of law,
(b) on a determination under section 81 (which is a final order),
and (c) on any other decision which has the effect of finally disposing of the Election Petition.
It is also clear that the decision now appealed from is neither one under section 81 nor a decision, whichfinallydisposes
of the petition. If, section 82A applies this appeal must be dismissed. Counsel for 1st Respondent, supported by Counselfor
the other Respondents, contends that Article 128(2), 127 and 130 of the Constitution governthematterandthereforethe
appeal is properly made and constituted in law. Article 128 reads as follows:
"128 (1) An appeal shall lie to the Supreme Court from any final order, judgment, decree or sentence of the CourtofAppeal
in any matter or proceedings, whether civil or criminal, which involves a substantialquestionoflaw,iftheCourtof
Appeal grants leave to appeal to the Supreme Court ex mero motu or at the instance of any aggrieved party to suchmatteror
(2} The Supreme Court may, in its discretion, grant specialleavetoappealtotheSupremeCourtfromanyfinalor
interlocutory order, judgment, decree, or sentence made by the Court of Appeal in any matter orproceedings,whethercivil
or criminal, where the Court of Appeal has refused to grant leave to appeal to the Supreme Court, or where in the opinionof
the Supreme Court, the case or matter is fit for review by the Supreme Court
Provided that the Supreme Court shall grant leave to appeal in every matter or proceedings in which it is satisfied thatthe
question to be decided is of public or general importance."
Article 130 which confers appellate jurisdiction on the Supreme Court in Election Petitions reads as follows:
"130. The Supreme Court shall have the power to hear and determine and make such orders as provided for by law on:
(a) any legal proceeding relating to the election of the President
(b) any appeal from an order or judgment of the Court of Appeal in an election petition case.
Provided that the hearing and determination of a proceeding relating to the election of the President shall bebyatleast
five Judges of the Supreme Court of whom, unless he otherwise directs, the Chief Justice shall be one."
This follows Article 118(e) which confers a general jurisdiction in the Supreme Court in election petitions. Which, then,is
the enactment that prevails-the Order in Council or the Constitution?
Article 101 of the Constitution empowers Parliament to make provision in respect of elections. They are specified inArticle
101 (1) (a) to (b). Article 101 (1) (i) reads as follows:
(i) the manner of determination of disputed elections and such other matters as are necessary or incidental totheelection
of Members of Parliament."
This permits rules to be made for the hearing and final disposal of Election Petitions. Article 101(2)makesprovisionfor
the interim period as follows:
"101(2.) Until Parliament by law makes provision for such matters, the Ceylon (ParliamentaryElections)OrderinCouncil,
1946 as amended from time to time, shall, subject to the provisions of the Constitution, mutatis mutandis, apply."
Counsel for 2nd and 3rd Respondents laid great stress on the words "subject to the provisions oftheConstitution."Itis
therefore clear from this sub-section that until Parliament expressly makes provision for such mattersasaresetoutin
Article 101(1) the provisions of the Order in Council must be read,withthenecessaryalterations,soastomakeit
workable and have legal effect. This Article must be read. together with Article 169(2) which reads as follows:
"169(2) the Supreme Court established by the Administration of Justice Law, No. 44 of 1973, shall,onthecommencementof
the Constitution, cease to exist, and accordingly the provisions of that Lawrelatingtotheestablishmentofthesaid
Supreme Court, hall be deemed to-have been repealed.
Unless otherwise provided in the Constitution, every reference in any existing written law to the 'Supreme Courtshallbe
deemed to be a reference to the Court of Appeal."
We are then faced with an apparent difficulty. Whereas it is possible to read "Court of Appeal" insteadof"SupremeCourt"
in section 79 and- section 82 it is impossible to read "Court of Appeal" in section 82A, section 8213,section82Candin
section 82D for the simple reason that appeal is permissible under Article 130 of the Constitution only to the SupremeCourt
created by the Constitution. Counsel for the Petitioner who contended for section 82A oftheOrderinCouncilcontinuing
intact argued that the provisions of Article 169(2) by including the words "unless otherwise providedintheConstitution"
saved the operative effect of section 82A of the Order in Council because the Constitution itself byArticle130conferred
such jurisdiction on the Supreme Court created by it. Counsel forthe1stRespondentcontendedthattheprovisionsof
Article 130 impliedly repealed section 82A. He stated that section 82A "goes out of the law" and that it hasnow"noplace
in law. In its place is Article 130." Counsel for the 2nd and 3rd Respondents didnotgotothatextent.Hesaidthat
section 82A must be read subject to the Constitution.
In considering this matter one must be mindful of the fact that the Court of AppealandtheSupremeCourtarebothnew
Courts created by the Constitution. The Supreme Court that hitherto existed ceased toexist.Newjurisdictionshavebeen
conferred on each of them with the primary object of affording a litigant the choiceofasecondappealtotheSupreme
Court. The Court of Appeal has not been granted power to entertain appeals from the judgments of its own Judges.Onecannot
therefore read "Court of Appeal" instead of "Supreme Court" in section 82A of the OrderinCouncil.Furthermoreappellate
jurisdiction in election cases which is conferred only on theSupremeCourtbytheprovisionsofArticle130ofthe
Constitution is entirely different to the jurisdiction conferred by section 82A of the OrderinCouncil.Initsoriginal
form section 82A is at complete variance with the Constitution. Section 82A(1)(b) permits an appeal from any decisionofan
Election Judge (other than that referred to in section 81) only if that decision finallydisposesofthepetition.This
appeal is not from a decision of that kind. The Constitution has made the Supreme Court the finalAppellateCourt(Article
118(c)) and it is the final Court of Civil and Criminal appellate jurisdiction in the Republic (Article 127(1)). It hassole
and exclusive cognisance by way of appeal "from any order judgment, decree or sentence made by the Court of Appeal"(Article
127(2)). Whereas section 82A permits an appeal only from an order finally disposing of an Election Petition,Article127(2)
grants a right of appeal, inter alia, from any order. Interlocutory orders arethereforeappeasableintermsofArticle
127(2): There is another fundamental and vital difference. Section 82A of the Order inCouncilgrantsarightofappeal
direct to the Supreme Court. The Constitution has prescribed the converse - it is indirect.Anappealliesfromafinal
order, judgment' decree or sentence of the Court of Appeal only if that Court grants leave to appealtotheSupremeCourt
(Article 128 (1)), or else, where the Court of Appeal has refused to grant such leave the SupremeCourtmaygrantspecial
leave to appeal (Article 128(2)). Article 128(2) refers expressly to an interlocutory order as well,atypeofordernot
referred to in Article 128(1). It is clear therefore that the Constitution took away and did not countenance adirectright
of appeal to the Supreme Court. That this was deliberate necessarily stems from the factthattheConstitutionsoughtto
make available a second right of appeal where noneexistedunderthelawexistingatthetimeofenactmentofthe
Constitution. This. contention is fortified by the fact that Article 128(4) makes provision for a right of directappealto
the Supreme Court in the future. It reads thus -
"128(4) An appeal shall lie directly to the Supreme Court on any matter and in the manner specifically providedforbyany
other law passed by Parliament."
Such legislation has now been passed by Parliament (Vide section 102 of Parliamentary Elections Act No. 1 of 1981). Itseems
to me that in this confrontation the Constitution must prevail. As wasstatedbyLordWilberforceinMinisterofHome
Affairs v. Fisher (1973) (3 A.E.R. 21 at 26)(1) aConstitutionisadocumentsuigeneris"callingforprinciplesof
interpretation of its own, suitable to its character ... . ., without necessary acceptance of all the presumptionsthatare
relevant to legislation of private law." One of the salient facts is that this Constitution soughttoeffacetheexisting
structure with regard .to appeals and created in its stead a new one by the creation of two different Courts and at thesame
time .removing altogether a direct right of appeal to the Supreme Court. There is also the admonitioncontainedinArticle
101(2) that the provisions of the Order in Council must bereadsubjecttotheConstitution.TheConstitutionisthe
"Supreme Law of the Democratic Socialist Republic of Sri Lanka" (Vide preamble to the Constitution).Thatsupremacycannot
tolerate confrontation by subordinate legislation. Such legislation if not in harmony with the Constitution mustnecessarily
give way to the Constitution. Section 82A of the Order in Council andtheConstitutioncannotstandtogether.Theonly
appellate jurisdiction in Election cases existing at the relevant time was that conferred on theSupremeCourtbyArticle
130 of the Constitution. The manner of exercising that jurisdiction was set out byArticle128oftheConstitution.One
cannot accept the former and disregard the latter:
Counsel for the Petitioner contended that the provisions. of theConstitutionwerenotapplicabletoanappealinan
Election Petition because an election case was not a civil matter within the meaning of Article 127 or Article128.Article
128 refers to a right of appeal from any final order etc. in any matter or proceedings "whether civil or criminal." Itseems
to me to grant power in the widest possible terms by the use of the words "any matterorproceedings."Wherethereisa
final order, judgment, decree or sentence of the Court of Appeal an appeal lies totheSupremeCourt.Itsobjectisto
permit an aggrieved party the right to canvas any determination of the Court of Appeal of the kind referredtoprovidedit
is done in the manner set out it that Article. As l see it the words "whether civil or criminal" are parenthetical,arenot
intended to be an exhaustive 'enumeration, and cannot therefore detract from the plenitude of power givenbythatArticle.
For the purposes of the appeals (Privy Council) Ordinance (Chapter 85) an application to the SupremeCourtforaWritof
Certiorari to quash the order of an election Judge. was held to be a civil suit or action within the meaning of section 3of
the Ordinance. The Supreme Court called in aid the definition of "action" in section 3 and section 6 of theCivilProcedure
Code (Chapter 86). In re Goonesinha (44 N.L.R. 75)(2). The words used in the Constitution are '"civil matter orproceeding."
These are of wider import than "civil suit or action." In terms of section 81 the Election Judgehastodeterminewhether
the 1st Respondent was duly returned or whether his election was void. The right to be elected, like the right to vote, isa
right of a civil nature and the judgment in an election case decides the rights of parties derived.fromtheConstitution.
Vide Rap v. Bhaskararao (1964 A.I.R. .185 A. P.)(3). The Election Judge is notdecidingcriminalliability.Infactthe
Order in Council requires a prosecution to be launched for any alleged offence, disclosed atthehearingof,anelection
case, and that can only be done with the sanction of the Attorney-General.
I am of the opinion that an election case is a civil matter or proceeding in which the civil appellate jurisdiction of the
Supreme Court could be invoked.
I overrule the objection taken by the Petitioner and hold that the 1st Respondent's appeal is properly constituted and
therefore maintainable in this Court. The Respondents will be entitled to the costs of this inquiry.
WEERARATNE, J. - I agree.
I agree with the judgment of the Chief Justice.
Since the interpretation of certain provisions of the Constitution is involved in the question to he decided,Iamsetting
down below my own judgment on the matters in issue.
The 1st respondent-petitioner contested the Anamaduwa seat in Parliament at the bye-election held on the 7th of May 1980and
was declared to be elected by a majority of 1787 votes to represent the Electoral District of Anamaduwa in Parliament.
The petitioner-respondent presented an election petition in the Court of Appeal challenging the validityofthesaidbye-
election and the election of the petitioner to the said seat on several grounds et out in his petition. A sum of Rs. 25,000/-
was tendered on behalf of the petitioner-respondent as security for the payment of all costs, charges and expensesthatmay
become payable by him. The 1st respondent-petitioner filed a statement objecting to the petitionbeingentertainedbythe
Court of Appeal and praying for its dismissal in limine on the grounds that -
(a) the said petition had not been filed within the prescribed timeand
(b) the security furnished was. insufficient in terms of the Ceylon (Parliamentary Elections) Order-in-Council 1946andthe
rules made there under.
The 2nd and 3rd respondents were also made parties to his petition by the-petitioner-respondent. They alsofiledstatements
of objection on the same grounds.
By its order dated 8th October 1980, the Court of Appeal rejected the preliminary objections and held that the saidpetition
had been filed within time and that the security that had been furnished was adequate.
The 1st respondent-petitioner and the 2nd and 3rd respondents each filed applications for special leave under Article128(2)
of the Constitution to appeal to the Supreme Court from the said order of the Court of Appeal dated 8th October 1980. Byits
order dated 21st January 1981, this Court granted special leave to appeal, butreservedtothepetitioner-respondentthe
right to raise any preliminary objection to the jurisdiction of this Court to hear the appeal from the aforesaidordermade
by the Court of Appeal dated 8th October 1980.
When, in pursuance of the leave granted by this Court, the 1st respondent-petitioner's appeal cameupforhearingon1st
June 1981, Counsel for the petitioner-respondent raised a preliminary objection to the hearing of the appealbythisCourt
on the ground that Article 130 of the Constitution does not enable this Court to entertainandhearthisappeal,asthe
order appealed from was not an order from which an appeallaytotheSupremeCourtundersection82AoftheCeylon
(Parliamentary Elections) Order-in Council 1946. According to him, under Article 130 the Supreme Court had the power tohear
and determine only an appeal from an order or judgment of the Court of Appeal as specifiedinsection82AoftheCeylon
(Parliamentary Elections) Order-in Council 1946, and since the said section 82A provided only for an appeal on a questionof
law against the decision of an Election. Judge which had the effect of finally disposing of an election. petition, noappeal
lay to this Court from the order made by the Court of Appeal in this case, as the said orderdidnothavetheeffectof
finally disposing of the election petition. The burden of his argument was thatthejurisdictionofthisCourttohear
appeals in election petitions was confined to the determination or a decision referred to in the said section82Aandthat
Article 130 of the Constitution did not enlarge that jurisdiction.
The preliminary objection raised by Counsel for the petitioner-respondent involves consideration of certain sectionsofthe
Ceylon (Parliamentary Elections) Order-in-Council 1946 (herein after referred to by the number of thesection)andcertain
Articles of the Constitution of the Democratic Socialist Republic of Sri Lanka- hereinafter referred to by the number ofthe
Section 82A provides as follows:
"(1) An appeal to the Supreme Court shall :lie on any question of law, but not otherwise against -
(a) the determination of an Election Judge under section 81, or
(b) any other decision of an Election Judge which has the effect of finally disposing of an election petition.
(2) Any such appeal may be preferred either by the petitioner or by the: respondentintheelectionpetitionbeforethe
expiry of a period of one month next preceding the date ofthedeterminationordecisionagainstwhichtheappealis
(5) Every appeal under this section shall be heard by three Judges of the Supreme Court."
Section 82B(5) declares that the decision of :the Supreme Court on any appeal shall be final and conclusive.
Article 101(1) provides for Parliament making provision in respectofelections,including,interalia,themannerof
determination of disputed elections and such other matters as are necessary or incidentaltotheelectionofMembersof
Article 101(2) states that "until Parliament bylaw makes provision for such, matters, theCeylon(ParliamentaryElections)
Order-inCouncil 1946 as amended from. time to time shall, subject to the provisions of the Constitution, mutatismutandis,
Article 169(2) reads as follows:
"The Supreme Court established under the Administration of Justice Law, No. 44. of 1973, shall, on thecommencementofthe
Constitution,. cease to exist. : .. Unless otherwise provided in the Constitution, every reference inanyexistingwritten
law to the Supreme Court shall, be deemed to be a reference to the Court of Appeal." -
Thus, when sections 82A and 82B are read with Article 169, 'Court. of Appeal' has to. be substituted for the 'SupremeCourt'
in the said sections 82A and 82B, and it would appear that theappellatejurisdictionthatwasvestedintheoutgoing
Supreme Court stands transferred to the present Court. of Appeal. But, according totheschemeoftheConstitution,the
appellate jurisdiction of the Court of Appeal is confined only to the correction by way of appeal of all errors committedby
a court of first instance (vide Art.138) and does not extend to the correction ofanyerror:committedbyitselfwhen
trying election petitions under Article 144. Article 130 has vested the Supreme Courtwiththeappellantjurisdictionin
Article 118 spells the jurisdiction of the Supreme Court. It states that the Supreme Court shall bethehighestandfinal
superior court of record in the Republic and shall, subject to the provisions of theConstitution,,exercise,interalia,
final appellate jurisdiction and jurisdictioninelectionpetitions.Articles127and128dealswiththeappellate
jurisdiction of the Supreme Court. Article 130 sets out the jurisdiction of theSupremeCourtinelectionpetitions.It
states: "The Supreme Court shall have the power to hear and determine and make such orders, as provided for by law on -
(a) a legal proceeding relating to the election of the President(b) any appeal from an order or judgment oftheCourtof
Appeal in an election petition case...
'Law' is defined in Article 170 to mean any Act of Parliament and any law enacted by any legislature atanytimepriorto
the commencement of the Constitution. The Constitution which was enacted prior to the commencement oftheConstitutionbut
came into force on .7th September 1978, the day appointed by the President by Proclamation (Art. 170 and172)comeswithin
the ambit of the definition of 'law'andsinceitistheSupremeLawoftheRepublic(videthePreambletothe
Constitution)its provisions supersede all earlier law. Accordingly, on the terms of Article 130, "thepowertohearand
determine and make such orders as provided by law" can refer only to the appellate jurisdiction of the Supreme Court setout
in Articles 127 and 128. Articles 118,' 127,.130 and 138 taken together make manifest that the Supreme Courtestablishedby
the Constitution alone is endowed' with appellate jurisdiction in election petitions and not theCourtofAppeal.Article
130 sets out the amplitude of such jurisdiction. This jurisdiction is not limited to appeal "on anyquestionof.law,but
not otherwise, against the determination of an Election Judge or, any, other decision of anElectionJudgewhichhasthe
effect of finally disposing of an election petition" as provided by section 82A. ' The appellate jurisdiction under.Article
130 embraces appeals from any order or judgment of the 'Court of Appeal in an election petition case. This jurisdictiondoes
not suffer from the limitations imposed by section 82A(.1). The 'order' referred to in Article 130thusincludesanorder
such as the order appealed from, namely an order overruling the preliminary objection withrespecttothesufficiencyof
security for costs. For the abovereasons,theobjectionraisedbyCounselfarthepetitioner-respondentcannotbe
sustained. However, the matter does not end there. Though Article 130 spell'stheappellatejurisdictionoftheSupreme
Court in election petitions, it does not indicate how such jurisdiction is to beinvokedbyanaggrievedparty.Foran
answer to that question, one has to look to Article 128 which enacts how the appellate jurisdictionvestedintheSupreme
Court can be- invoked and how the right of appeal to the Supreme Court istobeexercised.Article128isthegateway
through which a party aggrieved by an order or judgment of the Court ofAppealmustpasstogettheSupremeCourtto
exercise its appellate jurisdiction, whether under Article 127 or under Article 130 (b), on an appeal from an ordersuchas
the one appealed from In the present case. In terms of Article 128(2), the petitioner will have to obtain theleaveofthe
Supreme Court to appeal. The petitioner does not have an absolute right to. appealit isonlyaconditionalright.This
Court may, in its discretion, grant special leave to appeal only when in its opinion the case or matter is fit for reviewby
the Supreme Court, when it is satisfied that the question to be decided is of public or general importance. Thus, thoughthe
Supreme Court, may, under Article 130, have plenitude of appellate jurisdiction from any order or judgment oftheCourtof
Appeal in an election petition, whether on a question of law or otherwise. yet, since that jurisdiction can bereachedonly
via Article 128, the petitioner must satisfy the conditions prescribed by thisArticletoenablehimtoappealtothe
Supreme Court. Under the provisions of Article 128, until Parliament passes a new law specifically making such provision,no
appeal lies direct to the Supreme Courtit is only with the leave of the Court itself or with theleaveoftheCourtof
Appeal that an appeal lies to that Court Since in `the context of the Constitution'Parliament'mustmeantheParliament
constituted under .the provisions of the Constitution (vide Art. 62, 162(1) 75), when Article 128(4) statesthatanappeal
shall lie directly to the Supreme Court on any matter and in the manner specifically provided for by any other law passedby
Parliament, the 'law' there car. have reference only to anew law passed by Parliament after the coming into operation ofthe
Constitution. The earlier provisions of Article 128, prescribing the condition of obtaining leave toappealtothatCourt
would thus continue to operate as condition precedent in all cases of appeal to that Court untilanewlawsuchas.the
Parliamentary Elections Act, No. 1 of 1981 (certified on 2.1.1981) which provides for direct appeal to the SupremeCourtin
election. petitions came into operation. Article 128(4) militates against the contention that under existinglaw,suchas:
the amended Ceylon. (Parliamentary Elections) Order- in-Council 1946, an appeal will lie direct to the Supreme Court. Onlya
new law enacted by Parliament established by the Constitution can provide for a departure fromthemandatoryleavesteps:
The appeal provisions of the Ceylon (Parliamentary Elections) Order-in-Council 1946 which are inconsistent with Article-128
have to yield to the provisions of the Constitution (Art. 101(2). `Thus, it was nothing but proper forthe1strespondent-
petitioner to have obtained the leave of this Court to appeal to it. It was not competent for him to havedirectlyappealed
to this Court: The impact of Article 102(2) on theappeal-provisionsoftheCeylon(ParliamentaryElections)Order-in-
Council 1946 was to render inoperative sections 82A, 82AA and82BoftheOrder-in-Council.Whenthelimitedappellate
jurisdiction of the Supreme Court established under the Courts Ordinance/Administration of JusticeLawwasabolished,the
rules prescribed to invoke that jurisdiction ipso facto became defunct and could not be deemed to survive to ,regulatethe
enlarged jurisdiction of the new Supreme Court, especially when the Constitution has made the newSupremeCourtthefinal
court exercising appellate jurisdiction in respect of any order or judgment of the Court of Appeal in election petitionsand
prescribed the procedure for theinvocationofsuchappellatejurisdiction.Anappellantinvokingsuchjurisdiction
therefore must-conform to that procedure.
Article 127(1) sets out the width of the appellate jurisdiction of the Supreme Court. Counsel forthepetitioner-respondent
vehemently contended that Articles 127 and 128 confines the area' of the Supreme Court's appellate jurisdiction to civiland
criminal appellate jurisdiction only. He submitted that election jurisdiction is suigenerisandisnotembracedwithin
"civil and criminal jurisdiction" of the Court. In support of his submission,. he referred us to the judgments ofthePrivy
Council in Senanayake v. Navaratne (56 N. L. R. 5)`(4), De Silva v. (50 N. L. R. 48 1) (6). and to the judgment of theCourt
of Appeal in De Silva v. Senanayake (75 N.L.R. 265) (5). In `refusing special leave to appeal to Her MajestyinCouncilin
the cases reported in 5&N. L. R.'5(4) and 50 N.L.R. 48 1(6), the Privy: Council based its decision on the factthatsection
82B of the Parliamentary Elections Order-in Council made the decision of the Supreme Court final and conclusive:andstated
that Her Majesty's prerogative to entertain an appeal would not be exercised when it was not the intention oftheOrder-in-
Council to create a tribunal with the ordinary incident of an appeal to the Crown. The Privy Councildidnotgointothe
question whether election jurisdiction partook of the nature of civil or criminal jurisdiction, but was concernedonlywith
the question whether Her Majesty's prerogative to grant leave to appeal should be exercised whentheOrder-in-Councilmade
manifest that the judgment of the Supreme Court should be final in election matters.
The Court of Appeal as it existed in 1972, by its judgment reported in 75 N.L.R. 265(5) whenrejectinganapplicationfor
leave to appeal to that Court, laid stress on the provision in section 82B(5) that the decision of the Supreme Courtonany
appeal shall be final and conclusive and further held that an Election Judge in determininganelectionpetitionwasnot
dealing with a civil cause or matter within the meaning of section 8(1) of the Court of Appeal Act, No.4of1971.Inmy
view, the words in Article 127, "the Supreme Court shall be the final Court of civil andcriminalappellatejurisdiction",
are not words of limitation restricting the jurisdiction of the Supreme Court, but are words of amplitude descriptive ofthe
comprehensive jurisdiction of the Court. In the context in which they are used, the twocategoriesofjurisdiction,civil
and criminal, were intended to comprehend all jurisdictions of whatever nature. It is to be notedthatArticle118states
that "the Supreme Court shall be the highest and`finalsuperiorcourtofrecordandshallexercisefinalappellate
jurisdiction." In my view, the Constitution intended the dichotomy of "civil and criminal jurisdiction" to be exhaustiveand
that between them embraced all proceedings of whatever nature. An election proceeding is, in any event, acivilproceeding,
as was held by the Full Bench of the Andhra Pradesh High Court , in Rao v. Bhaskararao(A.I.R.(1964)Andh.Pra.185)(3)
Rights of a civil nature are in issue in an election petition.
Article 127(2) sets out what the Supreme Count can do in the exercise of its appellate jurisdiction.
I agree with the view expressed by Samarakoon CJ. with the concurrence of Thamotheram J. and Wanasundera J.inrejectinga
similar preliminary objection as was raised in this appeal on an application for leave to appealintheKalawanaElection
Petition case in Pilapitiya v. Muttettuwegama (S. C. Application No. 15 of 1979S. C. Minutesof25thMay1979)(7)that
Article 128 applies to interlocutory orders of the Court of Appeal in election petitions.
For the reasons set out above, I overrule the preliminary objection of Counsel for the petitioner-respondent and I holdthat
an appeal lies under the Constitution to this Court from the order of the Court of Appeal and that therespondent-petitioner
had correctly applied for and obtained the leave of this Court to appeal to this Court and that it was not competent forhim
to have preferred an appeal direct to this Court.
The petitioner-respondent will pay the 1st respondent-petitioner inS.C.Appeal1/81andthe2ndand3rdrespondent-
petitioners in S C. Appeal 2/81 and 3/81 the costs of the inquiry into the preliminary objections.
These three petitions of appeal before us are by the 1st, 2nd and 3rd respondentstotheelection'petition(hereinafter
called respondents), filed against them by the petitioner-respondent in respect of theAnamaduwaSeat(ElectoralDistrict
No.104). They are consolidated and taken up for hearing together. The respondents had earliercomebeforethisCourtand
sought special leave, in terms of Article 128 (2) of the Constitution, to canvassanordermadebytheElectionJudge,
relating to the adequacy of security. At the hearing of the applicationforspecialleave,counselforthepetitioner-
respondent indicated to Court that he wished to take up a preliminary objection. He submitted that thejurisdictionofthe
Supreme Court to hear appeals in election matters is restricted tothegroundssetoutinsection82AoftheCeylon
(Parliamentary Elections) Order in Council 1946 and that there is no right of appeal in regard to an interlocutoryorderof
the, Court of Appeal which does not have the effect of finally disposingofanelectionpetition.ThisCourt,onthat
occasion, while granting special leave to the respondents reserved the righttothepetitioner-respondenttoraisethis
point when the appeals are taken up for hearing. Our grant of leave was therefore conditional.
Mr. Shanmugalingam has now taken up this objection again beforeus.Hehassubmittedthatjurisdictioninrespectof
election matters is in the nature of a special jurisdiction conferred on the courts. The powers of the present SupremeCourt
in respect of election matters, he points out, are to be found in the provisions of Article 118 (e) and Article130(b)of
the Constitution. These provisions, he submits, relate to the forum for hearing the appeal, but do not dealwiththeright
of appeal as such. His position is that we must look to the provisions of section 82A of the Ceylon
(Parliamentary Elections) Order in Council 1946 to find out the extent of the right of appeal given to an aggrievedperson.
This provision, he states, sets out in detail the precise kind of order from which an appeal will lie to theSupremeCourt.
Under section 82A, an appeal is granted only on a question of law against -
(a) the determination of an Election Judge under section 81, or
(b) any other decision of an Election Judge which has the effect of finally disposing of an election petition.
He developed his arguments by referring to the provisions of Article 101 oftheConstitutionwhichprovidesforkeeping
alive the provisions of'-the Ceylon (Parliamentary Elections) Order in Council 1946. He statedthattheoperationofthe
provisions of Article 169 (2) of the Constitution, when' applied to the Ceylon (Parliamentary Elections)OrderinCouncil,
merely substitutes one forum for another and should not be read so as to imply any alteration intheconditionsofappeal
laid down in section 82A. Mr. Shanmugalingam submitted that the general appellate provisions contained inArticles127and
128 of the Constitution have no application to an election petition proceeding, because an electionpetitionproceedingis
neither a civil nor a criminal matter, but a proceeding sui generis.
Mr. Choksy for the 1st respondent has submitted that Articles 118, 127, 128 and 130 of theConstitutionareinterconnected
and they set out various aspects of the jurisdiction of the Supreme Court, which is a general jurisdiction. He hassubmitted
that, since the previous Supreme Court has ceased to exist, the provisionsofsection82AoftheCeylon(Parliamentary
Elections) Order in Council, which applied to that Supreme Court, have now been superseded by the. provisions of Article130
of the present Constitution. That Article 130 (b) contains no limitations on the right of appeal unlike82AoftheCeylon
(Parliamentary Elections) Order in Council. Mr. Choksy contends that an appeal will now lie to the SupremeCourtfromany
order or judgment of the Court of Appeal in an election petition case. Such an order can be any interlocutoryorderandis
not confined to the kind of order that section 82A contemplated. His position is that, while the jurisdiction of theSupreme
Court is contained in Article 118 (e) and Article 130 (b) of the Constitution, the provisions relatingtotheexerciseof
that jurisdiction, namely the manner of appealing and the nature of the powersoftheSupremeCourtinregardtosuch
appeals, are found in Articles 127 and 128 of the Constitution. He submits that an election proceeding is a civil matterand
distinguished a number of local cases which suggested a contrary view. He submitted that the procedure to come to thisCourt
by way of Article 128(2) of the Constitution taken by him is the proper manner of preferring an appeal.
Mr. Satyendra who appeared for the 2nd and 3rd respondents stressed the primacy of theconstitutionalprovisionsoverthe
Ceylon (Parliamentary Elections) Order in Council and submitted that Article 118merelycontainsageneralstatementof
jurisdiction area-wise or function-wise and that that jurisdiction is specifically vested in theSupremeCourtbyArticle
130. Though jurisdiction over election petitions are contained in Article 118 (e) and Article 130, it isnecessarytolook
to Articles 127 and 128, as Mr. Choksy had already pointed out, to find out as to how that jurisdiction canbeinvoked.He
relied on the Indian decision of Rao v. Bhaskararao (1964 A.I.R. 185, A.P.) (3) to show that an election proceeding,whether
in its original capacity or in appeal, is a civil suit or action so as to bring it within the wordingofArticles127and
128. Alternatively, he submitted that whether or not the provisions of section 82A of theCeylon(ParliamentaryElections)
Order in Council continued in force, the Supreme Court is vested by the Constitution with the power tograntSpecialLeave
under Article 128 (2), where the conditions set out there are satisfied, and that thisoverridingpower'cannotbetaken
away or affected by anything contained in the Ceylon (Parliamentary Elections) Order in Council, which mustberegardedas
Upon a consideration of these arguments, it seems to me that there are two main issues that arise for our consideration.The
first is whether Article 130 (b) of the Constitution has superseded section 82A (1) of the Ceylon(ParliamentaryElections)
Order in Council as regards the kinds of orders from which an appeal can be brought beforetheSupremeCourt.Thesecond
question is as regards the procedure to be followed in appealing and whether we have now to look totheprovisionsofthe
Ceylon (Parliamentary Elections) Order in Council or to Articles 127 and 128 oftheConstitutionforthispurpose.Both
these questions are matters of considerable complexity.
The Ceylon (Parliamentary Elections) Order in Council 1946 was part and parcel of the constitutionaldocumentsrelatingto
the devolution of independence on this country. Much of the provisions relatingtoelectionsinthisenactmentfollowed
earlier legislation, which provided for a disputed election to be challengedbywayofanelectionpetitionbeforean
Election Judge. Neither the earlier law nor the Ceylon (Parliamentary Elections)OrderinCouncil1946,whenoriginally
enacted, gave a right of appeal from a determination of an Election Judge. Not balked by this, parties who lost at thetrial
and believed they had a lawful grievance,. Tried every effort to get redress. Theingenuityoftheirlegaladvisershad
suggested writ proceedings and applications for leave and special leave to the Privy Council to canvass the determinationof
the Election Judge, but none of these methods had succeeded. The decided cases weretotheeffectthatthejurisdiction
given to the courts to entertain, election petitions was of a peculiar nature and that the relevant legal provisions didnot
evince an intention on the part of the legislature of creating a tribunal with the ordinary incident ofgivingarightof
appeal or review from its orders. G. E. De Silva v. Attorney-Genera/ (50 N.L.R. 481) (6)
By Act No. 19 of 1948, however, a right of appeal on a question of law from the final determination of an Election Judgewas
conceded for the first time when it appeared to the legislature that a party to an election petition may be unjustlytreated
in consequence of an erroneous decision on a question of law by the Election Judge. Later, in consequence of the decisionin
Ramalingam v. Kumaraswamy (55 N. L. R. 145(8) which called for remedialaction,amendmentNo.19of1959wasenacted,
bringing in the provisions of section 82 A (1)(b) which widened the appellatepowersbyprovidinganappealalsoona
question of law from any other decision of an Election Judge, which has theeffectoffinallydisposingofanelection
petitioni.e. from a particular kind of interlocutory order.
The effect of this provision was one of the matters that was debated in the case ofDissanayakev.Abeysinghe(75N.L.R.
12)(9). This case dealt with the adequacy of security given by a petitioner. The Election Judge held thatthesecuritywas
adequate and then proceeded to hear the petition and declared the election of the respondent void. The appeal wasarguedon
the basis that an interlocutory appeal did not lie in that case. At the conclusion of the trial and afterthedetermination
under section 81, the respondent in his appeal to the Supreme Court under section 82A(1)(a)soughtalsotocanvassthe
interlocutory decision regarding the adequacy of the security. Sirimane and Samarawickrema JJ., in a majority judgment,held
that an incorrect decision of the Election Judge at the preliminary stage that the security is -sufficient has nothing todo
with the determination at the conclusion of the trial referred to in section 82 (1)(a) from which alone anappeallay,and
denied the appellant the opportunity of canvassing that after 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 determinationunder
section 82A (1)(a) is before the appellate court, the Supreme Court is empowered to look into any errors of law committedby
the Election Judge culminating in the determination, particularly if they are of ajurisdictionalnature.Hereferredto
Rule 12 (3), which contained a prohibition against further proceedings in an election petition if the requiredsecurityhas
not been given by a petitioner.
The constitutional changes of 1972 brought no further changes except for one brought about by the AdministrationofJustice
Law, which was an enactment altering the structure of the courts intermsoftheRepublicanConstitutionof1972.The
jurisdiction to try election petitions came to be vested in the newHighCourtestablishedundertheAdministrationof
Justice Law and was to be exercised by a High Court Judge nominated by the Chief Justice - videsection22,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 it contains anumberofprovisionsrelatingtoelectionlaw.By
Article 144, the Court of Appeal is now vested with the jurisdiction to try election petitions.Theappellatejurisdiction
is vested in the present Supreme Court by Article 118 (e). Article 130 has speltoutthatjurisdiction.Article101(2)
keeps alive the Ceylon (Parliamentary Elections) Order in Council 1946untilParliamentmakesprovisionsinrespectof
elections. This provision reads -
"Until Parliament by law makes provision for such matters, the Ceylon (Parliamentary. Elections) Order inCouncil,1946as
amended from time to time, shall, subject to the provisions of the Constitution, mutatis mutandis, apply."
It has been submitted that the statement in Article 130 that "the Supreme Courtshallhearanddetermineandmakesuch
orders as provided for by law. . ." and the last two lines of Article 144, whichstatesthattheCourtofAppealshall
exercise its jurisdiction to try election petitions "in terms of any law for the time being applicable in thatbehalf,"are
referable to the Ceylon (Parliamentary Elections) Order in Council.
8y Article 101 (1), the Constitution has expressly reserved the power to Parliament to substitute newlegalprovisionsfor
the matters provided in the Ceylon (Parliamentary Elections) Order in Council. Parliament has recently enactedParliamentary
Elections Act, No. 1 of 1981, covering that same ground. This new Act is prospective in operationanddoesnottouchthe
Counsel have also referred to Article 169(2). This appears in the chapter relating to Transitional Provisions. It is worded
"(2) the Supreme Court established by the Administration of Justice Law, No. 44 of 1973, shall, on thecommencementofthe
Constitution, cease to exist, and accordingly the provisions of that Law relating to the establishment ofthesaidSupreme
Court, shall be deemed to have been repealed. UnlessotherwiseprovidedintheConstitution,everyreference,inany
existing written law to the Supreme Court shall be deemed to be a reference to the Court of Appeal."
This provision appears tautologous in so far as its application to the present case. The Constitution has, in expressterms,
vested jurisdiction in regard to electionpetitionsintwonewcourtscreatedbytheConstitution--theoriginal
jurisdiction in Appeal Court and the appellate jurisdiction in the new Supreme Court. To thatextentthequestionofthe
forum for the hearing of appeals from such petitions can be said to be "otherwise provided in the Constitution." Article169
(2) thus has little bearing on this matter.
On a careful examination of all these provisions, it seems to me that our present Constitution has vested the SupremeCourt,
in express terms, with jurisdiction in respect of appeals from election petitions. This is one of theseveraljurisdictions
given to the Supreme Court and itemised in Article118(e)andlaterexpressedmoreelaboratelyinArticle130.An
examination of Article 118 . will show that seven different and varied kinds of jurisdiction have been vested in theSupreme
Court, among which is this jurisdiction in election petition proceedings. Thattheseareseveraljurisdictions:ismade
evident by the fact that the term 'jurisdiction' is used in each and every one of the items(a)to(g)inArticles118.
There is no common denominator as it were in respect of these different jurisdictions. Theyarevariedinnature,though
vested in one institution, and appear to beseparatefacetsoftheauthorityoftheSupremeCourt.Thesedifferent
jurisdictions itemised in Article 118 are separately spelled out in greater detail in the succeedingArticlesinsequence,
so that each of these Articles is clearly referable to the items set out in Article 118 in that same order.Jurisdictionin
respect of election petitions dealt with in Article 130 is thus referable to Article 118 (e)andisinthenatureofa
It is only item (c). of Article 118 that was traditionally associated with the jurisdiction of the Supreme Court. Theothers
are additions of recent times by virtueofexpressprovision,anditems(b)and(d)showthattheaddingofnew
jurisdictions has continued under the present Constitution. When we consider the historicalbackground,wefindthatthe
original section 82A (1) merely introduced a right of appeal to the Supreme Court and section 82A (5) enjoinedthreejudges
of the Supreme Court to hear such appeals. This was because the Courts Ordinance ortheprevailingenactmentsthatdealt
with the structure of the courts did not expressly provide for an election petition jurisdictionaspartoftheordinary
jurisdiction of the courts. This appellate power was thus in the nature ofaspecialreferencetothreeJudgesofthe
The position then is that the jurisdiction in respect of appeals from an Election Judge in contradistinctiontothemanner
or method of exercising that right of appeal must now be found in Article 130 of the Constitution. Article 130 pre-emptsthe
entire field of jurisdiction and there is no room to drive a wedge to separatethe.forumfromitsjurisdictionasMr.
Shanmugalingam sought to do. Article 130 gives a right of appeal "from an order or judgment of theCourtofAppealinan
election petition." In contrast, the terminology in section 82A (1) is differentandusestheterms'determination'and
'decision.' The 'decision' however is of the limited kind that is described there. The word 'judgment' is not foundinPart
V of the Ceylon (Parliamentary Elections) Order in Council,butispresumablyintendedtoincludethe'determination'
mentioned in section 80C, 81 and 82A. The other word 'order' is an appropriate term for interlocutory orders and isusedin
Article 130 unqualified and without any limitations. This is a significantinnovationwhichcounselfortherespondents
rightly stressed. There can be little doubt that Article 130 is a constitutional pronouncement inregardtotheappellate
jurisdiction of the Supreme Court in election petition proceedings. It has brought about a significant change in the lawand
appears to be much wider in scope than section 82A of the Ceylon (Parliamentary Elections) Order in Council:
In my opinion, a ruling on the precise ambit of Article 130 is not called for in the present case. It would be sufficientto
observe that the present matter involves a question of law from an interlocutory order which could havehadtheeffectof
finally disposing of the election petition if the objection had been upheld. The present case falls within the provisionsof
Article 130 which on the face of it does not contain the limitations found in section 82A (1)(b). The wording of Article130
is probably the result of the decision in' Dissanayake v. Abeysinghe (supra), where several shortcomings in section82A(1)
were pointed out by the Judges. G. P. A: Silva, S. P. J., referred to "the palpable injustice of one party toasuitbeing
given a right of appeal against an erroneous decision, while the other party is denied such aright:"Ontheotherhand,
Sirimane J. asked pertinently, "if, at the conclusion of a trial, it has been conclusively proved that a candidatehasbeen
guilty of bribery, intimidation and other corrupt and illegal practices, would it not be an anomaly if he is entitled tosit
in Parliament, if it could be successfully argued in appeal that the trial Judge had erred on the question of security."
Admittedly, the previous state of the law had room` for improvement. When one considers thehistoryofelectionlaw,one
finds that the evolution of appellate rights in election petition proceedings has been bothapiecemealandatrialand
error process. One answer to the criticism contained in Dissanayake case (supra) was to giveeitherpartytoanelection
petition a right of appeal to the Supreme Court both from an interlocutory order and also from thefinaldetermination.It
may therefore not be accidental that the wording' of Article130oftheConstitutionandsection102.(1)ofthenew
Parliamentary Elections Act is suggestive of this.
In fact, the new Parliamentary Elections Act, No. 1 of 1981, referred to more fully later, sets out the jurisdictionofthe
Supreme Court in terms very similar to those contained in Article 130. The language usedinsection102(1)ofthenew
Parliamentary Elections Act shows that Parliament itself has understood Article 130 in the same manner asIhavedoneand
proceeded to legislate on that basis. The task of interpreting the law and the Constitution is, no doubt,assignedtothis
Court and though we are not bound by the views of Parliament on a matter of construction, we can legitimately have regardto
its views when such views can be shown to have some relevance, as I shall show later in this judgment. ForthesereasonsI
am of the view that the objection raised by Mr. Shanmugalingam in the mannerhehasformulatedit,isnotentitledto
The second question before us relates to the procedure of appealing in contradistinction toappellatejurisdictionitself.
Is the prevailing procedure to be found in Articles 127 and 128 of the Constitution or, dosections82A,82Band82Cof
Ceylon (Parliamentary Elections) Order in Council continue to apply ? The appellantshavehadrecoursetotheappellate
procedure provided in Article 128 of the Constitution. In thecourseofhisarguments,Mr.Shanmugalingamreferredin
passing to the fact that if the provisions of Article, 128 do notapplytothemanneroffilinganappeal,thenthe
appellants have misconceived their remedy and consequently there is no valid petition of appeal before Court.Althoughthis
point has not been specifically stated in the initial objections, it has emerged before us in the course of thehearing.It
is in a way consequential to the preliminary objection and is also a question of law of a fundamental nature. Thiscourt,l
think, is obliged to consider it and make a pronouncement.
I have earlier referred to the fact that jurisdiction vested in the Supreme Court inrespectofelectionpetitionsisa
separate and special jurisdiction and should not be subsumed under a concept of a general appellatejurisdiction.BothMr.
Choksy and Mr. Satyendra contended in favour of such acommonjurisdictionand,submittedthatArticles1,27and128
provided the manner of the exercise of that common jurisdiction. They were accordingly at painstoshowthatanelection
petition is .a civil or criminal matter - so as to bring election petition proceedings within thewordingofArticles127
It seems to me to be profitless to embark on an inquiry to ascertain whether or not an election petition proceeding couldbe
designated as a civil or criminal matter, because it is made on an assumption whichdoesnotappeartobesound.Iam
inclined to the view both according to the canons of interpretation and on historical ground that the appellatepowergiven
to the Supreme Court in election petition proceedings is a special and separate jurisdiction. The realquestionis,having
regard to the nature of the special jurisdiction involved, whether it was alsonotintendedthatthespecialprovisions
relating to the manner of appealing contained in the Ceylon (ParliamentaryElections)OrderinCouncilshouldapplyas
against the more general provisions of Articles 127 and 128 of the Constitution which are undoubtedly referable to thefinal
appellate jurisdiction of the Supreme Court in respect of its ordinary civil and criminal jurisdiction. When thearrangement
and the sequence of the Articles in Chapter XVI of the Constitution are examined, one sees thatArticles127and128are
referable to item (c) of Article 118 and not to item (e) which deals with election petition jurisdiction.
There are other grounds for discounting the application of Articles 127 and 128 to election petition proceedings. IfArticle
130, which is substantive in nature, is subordinated to Article 128,whichisofaproceduralkind,thentheplenary
jurisdiction set out in Article 130 would be whittled down considerably. In place of thefreeand.fullrightofappeal
promised by Article .130, an aggrieved person would be given only a limited and conditionalright.Article130-givesno
indication that a petition of appeal should be conditional on a prior application for leave. No such constraintobtainedin
election petition appeals until now and an aggrieved party had always come before the court of appeal as amatterofright
More significantly, the application of Article 128 to Article 130 means theraisingofthequalifyingthresholdforan
appeal. To satisfy Article 128 it would now be necessary to have e substantial question of laworagravemiscarriageof
justice whereas Article 130 contains no such requirement and the Ceylon (Parliamentary Elections) Order inCouncilgivesa
right of appeal on a bare question of law.
Since Article 130 deals with jurisdiction and is the controlling Articlethe subordination of this Article toaprocedural
Article like 128 is also impermissible unless there is an indication to that effect in theConstitution.Ihavefoundno
such indication. On the contrary, when we contrast Article 127, which corresponds to Article 130 but deals withthevesting
of the ordinary civil and criminal jurisdiction in the Supreme Court, we find an express statement thatArticle127should
apply "subject to the Constitution." It is this reservation that attracts Article 128 to Article 127 and the absence ofsuch
reservation in Article 130 makes the vital difference. It is also difficult to believethatthelegislatureintendedany
such limitations in regard to appeals from election petitions when the trend in recenttimeshasbeenforaprogressive
liberalisation of election petition procedure. To subordinate Article 130 to Article 128 would undoubtedlybearetrograde
The grant of a direct appeal to the Supreme Court, provided by the Ceylon (Parliamentary Elections) Order in Council, isnot
something that does violence to the constitutional provisions relating to the arrangement oftheappellateprocedures.In
fact, the Constitution recognises the possibility of having direct appeals as amethodofaccesstotheSupremeCourt.
Article 128. (4) states
"An appeal shall lie directly to the, Supreme Court on any matter and in the manner specifically provided forbyanyother
law passed by Parliament."
In my view,. an appeal to the Supreme Court in election petition proceedings is one instance ofsuchdirectappealswhich
has been kept alive by Article 101 (2)' of the Constitution. The new Act, which deals with theidenticalmatterandwhich
the Constitution contemplated, provides for such a direct appeal.
I have earlier referred to the opening words of Article 130. Article 130 begins-
"The Supreme Court shall have the power to hear and determine 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
am inclined to take the view on grammatical considerations that it qualifies also the words 'hear and determine'. Again,the
word 'law' here, having regard to the definition of that term in Article 170, is another pointer totheprovisionsofthe
Ceylon (Parliamentary Elections) Order in Council. It certainly cannot include theConstitution.Theexpression'law'is
defined as follows :
'law" means any Act of Parliament, and any law enacted by any legislature at anytimepriortothecommencementofthe
Constitution and includes an Order in Council."
I think Mr. Satyendra overtaxed his ingenuity when he submitted that the word 'law' herecanincludetheConstitution.I
confess that I find it difficult to imagine how the Constitution can be. regarded atone and the same time also as aseparate
and independent law which has been enacted prior to this selfsame Constitution. His submissionwasbasedonanerroneous
view and a failure to recognise the distinction between, what may be termed, the constituent powers ofParliament`andits
ordinary legislative powers:
An examination of the provisions of section 82A (2) and the succeeding sections uptosection85showsthattheCeylon
(Parliamentary Elections) Order in Council contains a complete code of provisions in regard to the "hearing, determiningand
for the making of orders in respect of election petition$." There are no equivalent provisions in theConstitutioncovering
this same ground and what exists in the Constitution seems inadequateorinappropriatetodealcomprehensivelywithan
election' petition appeal, in particular, with the kinds of orders which are peculiar to election petition proceedings:
It was Mr. Choksy who brought to our notice the Parliamentary Elections ActNo. 1 of 1981, enacted this' year.Thisisin
fact the legislation contemplated by Article 101 (1)' of the Constitution in respect ofParliamentaryelections,whichis
intended to replace the existing Ceylon (Parliamentary Elections) Order in Council 1946. This newActNo.1of1981has
provision:: for the repeal of the Ceylon (Parliamentary Elections) Order in Council and for the new Act totakeitsplace.
The case before us however continues to be governed by the former law. Mr. Shanmugalingam, I rather think,objectedtoour
looking at this new material for the purpose of interpreting the provisions of the Constitution.
As stated earlierthe function of interpreting the Constitution is vested solely in this Court andinthistaskwemust
primarily go by the wording of the Constitution, itself. It should beborneinmindthatthenewActisspecifically
envisaged by the Constitution and has been enacted in furtherance of that legislative plan.Further,theConstitutionand
this new Act are interconnected and have an interacting effect. The language of the new Act in its ordinarymeaningappears
to reflect a certain understanding or construction of the provisions of the Constitution. The fact that this legislationhas
been validly enacted and is final and conclusive and cannot be called in question, wouldtendtogivethatunderstanding
some relevance if an. issue arises as to whether or not any of its provisionsisinaccordwiththeprovisionsofthe
Constitution. In fact it is incumbent on us prima facie to regard this raw Act as being in consonance with the provisionsof
the Constitution and to interpret its provisions so that they are in harmony with the Constitution:
Accordingly, the provisions of this new Act could have some bearing on both the issues which I formulated inthecourseof
this judgment. Regarding the first issue, the fact that section102(1)ofthenewActNo.1of1981declaresthe
jurisdiction of the Supreme Court in very much the same .terms (though not in the identical words) as in Article 130 (b)and
without the limitations contained in section 82A of the Ceylon (Parliamentary Elections) OrderinCouncilisanitemin
favour of Mr. Choksy's submission. If the jurisdiction of the Supreme Court is contained in section 82A, as contended byMr.
Shanmugalingam, or if Article 130 (b) has to be construed in the light of the limitationscontainedinsection82A,then
what was the need for a provision like section 1.02 (1) of the new Parliamentary Elections Act, No. 1 of 1981 ? On theother
handsection 102 (1) appears to reflect what is contained in Article 130 of the Constitution andblendsharmoniouslywith
it. This goes to fortify the conclusion I have already arrived at, that the right of appeal from a decisionofanElection
Judge is no longer subject to the limitations contained in section 82A oftheCeylon(ParliamentaryElections)Orderin
The bearing this new legislation has on the second issue seems to be even more decisive. We find in this newActNo.1of
1981 a reproduction, practically in their entirety, of the provisionsoftheCeylon(ParliamentaryElections)Orderin
Council that relate to the time limit for appealing,proceduresforappealing,partiestosuchappeal,thegrantof
security, the kind of orders that can be made, etc. If, as contended by the. respondents, these matters are all nowgoverned
by the Constitution (in fact there is no reference whatsoever to many of these matters in the Constitution),thenwhatwas
the necessity, for reproducing them in the new law when those provisions of the Ceylon(ParliamentaryElections)Orderin
Council had already been superseded by the Constitution ? A more relevant question is, couldthelegislaturehaveenacted
the new Act as ordinary legislation (and it has been duly enacted in terms of the Constitution),ifthematterscontained
therein are already embodied in the Constitution and enjoy the dignity of constitutional provisions ? `Would it notbemore
reasonable to take the view that what is now enacted in Act No. 1 of 1981 was never a part of theconstitutionalprovisions
and therefore it was competent for Parliament to legislate for these matters in the form of ordinary legislation
The above views give further support to my earlier conclusions which were based on a pure analysis andconstructionofthe
constitutional provisions. In my view, we have to look to the provisions of the Ceylon(ParliamentaryElections)Orderin
Council for the appropriate procedures for appealing. These provisions provide for a direct appeal to the SupremeCourtand
for other subsidiary matters. This, as I have shown earlier, isaprocedurethatwaswithinthecontemplationofthe
draftsman of the Constitution. In the present case these procedures have not been followedduetomisapprehensionofthe
Before I conclude, I should like to say one word about the judgment in Pilapitiya v. Muttettuwegarna (S.C. 15 of1979)(7).
The application for Special Leave under Article 128.(2) of the Constitution was refused by CourtandIconcurredinthat
judgment. One of the matters referred to in the judgment istherightofanaggrievedpartyinanelectionpetition
proceeding to come to this Court byway of Article 128 (2). But as far as] can recall, the matter was not argued asfullyas
in the present case and in any event that judgment is not binding on this bench.
In the result, the respondents have failed to comply, with the provisions of section 82A (2). oftheCeylon(Parliamentary
Elections) Order in Council, which was the only mode of access to this Court. The purported appealbeforeusistherefore
invalid. We have then no option but to reject this petition of appeal, even though the preliminaryobjectiontakenbyMr.
Shanmugalingam related to a question of the appellate jurisdiction of this Court and did notspecificallydealwiththis-
The appeals are therefore rejected. I would order that half costs of appeal be paid to the petitioner-respondent by the1st,
2nd and 3rd respondents jointly,
ISMAIL, J. I agree.
Article 101(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka ordains thatuntilParliamentbylaw
makes provision for such matters the Ceylon (Parliamentary Elections) Order- in-Council, 1946 as amended from timetotime,
shall, subject to the provisions of the Constitution, mutatis mutandis, apply. These appeals relate to theextenttowhich
the Constitution has superseded those provisions of the Ceylon (Parliamentary Elections) Order-in-Council, in thematterof
appeals in election petition cases. I have had the benefit of reading the judgments prepared by MyLordtheChiefJustice
and by my brother Wanasundera, J. They have both taken the view that Article 130 of the Constitution hassupersededsection
82A(1) of the Order-in-Council in the matter of the scope of the right of appeal in electionpetitioncases.Whereasthat
section is limited in scope in that it gives a right of appeal only from a determination of an election judgeundersection
81, or from any other decision which has the effect of finally disposing of an election petition, Article130iswiderin
scope acid empowers the Supreme Court to hear and determine an appeal from any order or judgment of the CourtofAppealin
an election petition case. As observed by Wanasundera, Jthis -expansion of the scope of the right of appeal may bedueto
the anomaly resulting from the decision in Dissanayake v. Abeysinghe (75 NLR 12)(9). I am in respectfulagreementwiththe
view expressed in both judgments that in the context of Article 130, there could be no doubt that the SupremeCourtisnow
empowered to hear and determine any appeal from any order, final or interlocutory, made byanelectionjudge.Astothe
repercussions this extension would have on the e speedy hearing and conclusion of election petitions isanothermatter,to
which I shall revert later.
There is disagreement between the C- Justice and Wanasundera, J. with regard to the procedure in appeal. TheChiefJustice,
has taken the view that section 82A of the Order-in-Council and the Constitution cannot stand together.Asregardssection
8213, C & D he states that when the term "Court of Appeal" is substituted for the term "SupremeCourt"incompliancewith
Article 169(2), we are faced with further difficulty. The procedure in appeal and the powers of the Supreme Court inappeal,
in his judgment, are now contained in Articles 127, 128 and 130 of the Constitution. Wanasundera, J. takes the view thatthe
procedure in appeal from a judgment or order of an election judge is still contained in sections 82A(2) to (5), 8213, C &D,
and that those provisions are not inconsistent with the Constitution. That into say, a party dissatisfied withanorderof
an election judge has to prefer an appeal to the Supreme Court in terms of section 82A(2) of the Order inCouncil.Whenan
appeal is so preferred the powers of the Supreme Court are exercised in terms of Section 82B.Theremedyofanaggrieved
party therefore is not to invoke the powers of the Supreme Court under Article 128(2) by seekingleavetoappeal,butto
prefer an appeal in terms of section 82A(2).
I regret I am unable to agree with My Lord the Chief Justice on this aspect of the appeals. I aminentireagreementwith
the conclusion reached in the judgment of Wanasundera, J. In view, however, of the importance of the issue raised Iwishto
add a few observations of my own to the cogent reasons given for his conclusion that as no appealshavebeenpreferredby
the appellants according to law, these appeals should therefore be rejected.
The Ceylon (Parliamentary Elections) Order-in-Council governed the hearing of appeals in electionpetitioncasesfromthe
time a right of appeal was first granted by Act No. 19 of 1948, for a period of about a third of acentury.Notwithstanding
changes in the Constitution and in the laws establishing the several Courts and vesting jurisdictioninthem,namely,the
Courts Ordinance (Cap. 6) and the Administration of Justice Law, No. 44 of 1973, theOrder-in-Councilwasthelawwhich,
with amendments from time to time, set down the scope of the right of appeal, the procedure in appeal andtheprocedureto
be followed after the conclusion of an appeal. It was a special law, with a special procedure, a special setofrules,and
imposing consequences of a special nature. Whenever amendments were considered to be necessary, forexample,extendingthe
scope of the right of appeal, they were effected not by amending the basic law or the law vesting jurisdictionprevalentat
the particular time, but by amending the Order-in-Council. That the presentParliamentalsodesirestopursuethesame
appeal procedure is apparent when one peruses the provisions of the Parliamentary Elections ActNo. 1of1981,whichhas
been certified by the Speaker on 22.1.81 and which is to come into operationonsuchdateasmaybespecifiedbythe
President by Order published in the Gazette. Section 130 of that Act expressly repeals Part VI oftheOrder-in-Council,in
which Part is contained provisions relating to election petitions and appeals. On such date astheOrder-in-Councilisso
repealed, almost identical provisions containing appeal procedure are to replace the present appeal procedure. It is myview
that until Act No. 1 of 1981 comes into force, the provisions of the Order-in Councilpertainingtoprocedureinappeals
will continue to apply. It is necessary to emphasise in particulartheconsequencesthatwillinevitablyensueifthe
provisions of the Order-in-Council relating to appeals are not strictly complied with. Sections82A(2)andthesubsequent
sub-sections constitute the special provisions relating to the procedure in appeal. Section 828 contains thepowersofthe
Supreme Court in such appeals. It is only upon an appeal preferred under section 82A thatsub-section(2)ofsection82B
empowers the Supreme Court to decide "whether the member whose return or election was complained of, or anyotherandwhat
persons, was duly returned, or whether the election was void." It also requires the Supreme Court "to issue a certificateof
such decision." These are special powers and duties. One cannot but note the absence of such specialpowersanddutiesin
the appeal procedure and powers contained in the Articles of the Constitution or in the Supreme Court Rules,1978.Whatis
more, section 82C provides that where the Supreme Court either allows or reverses the determination oftheelectionjudge,
"the Court shall transmit to the President the Certificate of the decisionissuedundersection82B."This"followup"
procedure is contained in section 82D, which gives effect to the certificate so transmitted. It is only on suchtransmission
that the decision of the Supreme Court takes effect. It is only on such transmission of the Certificate thatHisExcellency
is empowered to order by notice published in the Gazette, the holding of a fresh election within one month of the receiptby
him of the Certificate, and "in accordance with such certificate." Such certificate could be issuedbytheSupremeCourt,
only by virtue of the powers vested in it by section 8213and these powers could be exercised by the Supreme Courtonlyin
the event of an appeal being preferred under section 82A. If, then,thesespecialprovisionscontainedintheOrder-in
Council are not strictly complied with, a member who is unseated by the decision of the SupremeCourtinappeal,mayyet
find himself not unseated. If the certificatecontemplatedinsection82CisnottransmittedtothePresident,His
Excellency may not be empowered to order the holding of a fresh election, in the event of such step becoming necessary.
It is probably to overcome these difficulties that Mr. Choksy argued that in Article 130- the words "as provided for bylaw"
qualified only the word "Orders" but not the words "hear and determine"that is, that whilst the Supreme Court isempowered
to make "orders" under sections 82B and C, yet the hearing and determination of the appealhastobeincompliancewith
Article 128(2). I am unable to agree. The context in which the words appear leave no room for 'doubtinmymindthatnot
only the orders made, but also the hearing and determination of an appeal have all tobe"asprovidedforbylaw"."As
provided for by law" can have no other meaning in the context than "as provided for by the Ceylon(ParliamentaryElections)
Order-in-Council, 1946 as amended" because "law" ` is defined in Article 170 as meaning "any ActofParliament,andany
law enacted by any legislature at any time prior to the commencement of the Constitution, and includes an Order-in-Council".
Mr. Satyendra's contention that "law" in the context means "the Constitution" would, if accepted, lead to startlingresults.
One such result that immediately comes to mind is that if"law"isequatedto"theConstitution",thenany"question
relating to the interpretation of the Constitution" would not be different from any "question relating to theinterpretation
of the law" and such questions may be decided by any of the Courts in the hierarchy of Courts.ButtheConstitutionvests
that jurisdiction of interpretation of the Constitution exclusively in the Supreme Court.
Mr. Shanmugalingam's explanation for the necessity for Article 130 in the Constitution, when that power is already vestedby
the Order-in-Council, is that otherwise an absurdity would arise as a result of the application of Article 169(2) tosection
82A. There seems to be some force in this submission, but it does not provide an explanation as to whyinArticle130the
powers of the Supreme Court in appeal have been enlarged so as to enable the Court to entertain anappealfromanyorder,
final or interim.
Reverting to this enlargement of the scope of the right of appeal I wish to state that the very laudable object intheform
of an exhortation that "every endeavour shall be made to conclude the trial of such petition within a periodofsixmonths
from the date of presentation of such petition." and introduced as section 80C(2) by anamendmentdated1.3.70,wouldbe
almost impossible to achieve, even with the best of endeavours on the part of the election judge, if arightofappealis
permitted from every interim order made by him. This exhortation is repeated in section 99(2) of Act No. 1 of 1981 as well.
In this connection it must be remembered that the election judge is a judge of aSuperiorCourt andasolutiontothe
anomaly arising from the decision in Dissanayake v. Abeysinghe (9) would be to give an aggrieved party a right ofappealto
the Supreme Court from any interim order, but to be exercised only at the conclusion of the trial of the petition.That,of
course, is a matter for the legislature, not the Courts. We can only pointoutsuchanomaliesforconsiderationbythe
I am, therefore, of the view that whilst section 82A(1) of the Ceylon (ParliamentaryElections)Order-in-Council,1946as
amended, is inconsistent with Article 130 of the Constitution, the otherprovisionsoftheOrder-in-Councilrelatingto
appeals, namely, sections 82A(2) to (5) 828, 82C and 82Darenotinconsistent.Astherearenoappealspreferredin
compliance with section 82A(2) I agree with the judgment of Wanasundera, J. that the three appeals should be rejected.
I have had the advantage of reading the Judgments prepared by my Lord the Chief Justice and by my brothers, Sharvananda,J.,
Wanasundera, J., and Wimalaratne, J. The two main questions that arise for consideration on thesethreeappealshavebeen
succinctly formulated, if I may say so with respect, by Wanasundera, J. in his Judgment. In respect ofthefirstquestion,
that is, whether Article 130(b) of the Constitution of the Democratic Socialist Republic of Sri Lanka(hereinafterreferred
to as the Constitution) has superseded Section82A(1)oftheCeylon(ParliamentaryElections)OrderinCouncil1946
(hereinafter referred to as the Order in Council), as regards the kinds of orders made by an ElectionJudgefromwhichan
appeal can be taken to the Supreme Court, l am in respectful agreement with the viewsexpressedintheJudgmentsofthe
Chief Justice, Sharvananda, J., Wanasundera, J. and Wimalaratne, J. They have taken theviewthatArticle130(b)ofthe
Constitution has superseded Section 82A(1) of the Order in Council as regards the scope of the right ofappealinelection
petition cases, and that the jurisdiction vested in the Supreme Court under Article130(b)oftheConstitutiondoesnot
suffer from the limitations imposed by Section 82A(1) of the Order in Council,andthatthereforetheSupremeCourtis
empowered to hear and determine an appeal from an order of an Election Judge even though such anorderdoesnothavethe
effect of finally disposing of an election petition.
As regards the second question formulated by Wanasundera, J., that is, in regard to the procedure tobefollowedwhenone
appeals in election petition cases, the Chief Justice and Sharvananda, J. have come to the conclusion that theprocedureto
be followed is contained in Article 127 and 128 of the Constitution and that the threeApplicationsforSpecialLeaveto
appeal to the Supreme Court filed in terms of Article 128(2) by the three Respondents to theelectionpetition,havebeen
properly filed and that the appeals are maintainable. I regret I am unable to agree with this view.
On this question I am in respectful agreement with the view expressedbyWanasundera,J.andWimalaratne,J.thatthe
procedure in appealing against a judgment or order of an Election Judge is still contained in Sections 82A(2)to(5),82B,
82C and 82D, and that those provisions are not inconsistent with the provisions of the Constitution andthatthereforethe
remedy of an aggrieved party in an election petition case is not to invoke the powers of theSupremeCourtbyaskingfor
Special Leave to appeal in terms of Article 128(2) of the Constitution, but by filing an appeal in termsofSection82A(2)
of the Order in Council. When that is done the Supreme Court can exercise its powers under Section 82D. Wanasundera,J.and
Wimalaratne, J. have given cogent reasons for their views a and I have nothing further to add.
As there are no appeals preferred in compliance with Section 82A(2) of the Order in Council, I agree withtheJudgmentsof
Wanasundera, J. and Wimalaratne, J. that the three appeals should be rejected. I also agree with Wanasundera, J.thatthere
should be no costs.