Legal Services and Laws of Sri Lanka


SLR-1985 Vol.2-P164

SLR - 1985 Vol.2, Page No - 164

KULARATNE

v.

CHANDRANANDA DE SILVA AND ANOTHER

SUPREME COURT,

SHARVANANDA, C.J. COLIN-THOME, J. AND ATUKORALE, J.S.C. REF. 1/85.

C.A. APPLICATION No. 112/85.

JUNE 10 AND 11, 1985.

Election Law - Article 123 (1) of the Constitution - Person found guilty of corrupt practice of making falsestatementwhen
acting as an" agent' of a candidate at a Parliamentary Election and with his knowledge and consent - is candidate subjectto
disqualification ? - Articles 8889(e) (iii) and 90 oftheConstitutionreadwithSection82D(b)(ii)ofCeylon
Parliamentary Elections Order in Council. Report of Election Judge under Section 82 of the said Order-in-Council.

A person was found guilty of the corrupt practice of making a false statement of fact under section 58 (1) (d) of theCeylon
(Parliamentary Elections) Order in Council 1946 at a Parliamentary Election as agent of a candidate at the said Electionand
with his knowledge and consent. On the question of the disqualification which the candidate himself would . suffer theCourt
of Appeal acting under section 123 (1) of the Constitution referred the following questions to the SupremeCourtforits
determination

(a) In view of the provisions of Articles 88, 89 (e) (iii) and 90 of the Constitution, doessection82D(b)(ii)ofthe
Ceylon (Parliamentary Elections) Order in Council 1946 read with the Fifth Amendment totheConstitution.nowoperateto
impose on such a candidate as is referred to in section 82D (2) (b) (ii) of the said Order inCouncilthedisqualification
to being an elector at an election of Members of Parliament or of being elected as a Member of Parliament:
(b) Where the report made by an Election Judge finds that, the corrupt practice of making a falsestatementoffactunder
section 58 (1 ), (d), of the Ceylon (Parliamentary Elections) Order in Council 1946, had been committed byapersonacting
as agent and withtheknowledgeandconsentofacandidateatsuchelection,issuchcandidatesubjecttothe
disqualification contained in Article 89 (e) (iii) of the Constitution ?

(c) Do the words ". . . . a report made by a Judge finding him guilty of any corrupt practice " in Article 89 (3) (iii) of
the Constitution
apply only to such a person who is set out in such-report as having been proved himself to have been guilty (asprovidedin
section 82 (b) of the said Order in Council) of the' corrupt practice of making such false statement of fact.
OR
apply also to the candidate (though not set out in such report as having been proved himself to have committedsuchcorrupt
practice), whose: agent is set out in such report as having committed suchpracticewithsuchcandidate'sknowledgeand
consent.

Determination -
The Supreme Court gave its determination on the questions referred as follows
a. No.
b. No.
(c) The words ". . . . a report made by' a Judge finding him guilty of any corrupt practice. . . . " in Article 89 (e)(iii)
of the Constitution apply only to such a person who is set out in such report as having beenprovedhimselftohavebeen
guilty (as provided in section 82 (b) of the said Order in Council) of the corrupt practice of makingsuchfalsestatement
of fact and does not apply also to the candidate (though not set out in such report as having beenprovedhimselftohave
committed such corrupt practice), whose agent is set outinsuchreportashavingcommittedsuchpracticewithsuch
candidate's knowledge and consent.
The provisions of section 82D (2) (b) (ii) and 83D (3) of the Elections Order in Council ceased to belawwiththecoming
into existence of the Constitution of 1972 and hence were not'existinglaw'whentheConstitutionof1978cameinto
operation. Being inconsistent with Article 89 ( e) (iii) of the1978ConstitutiontheywerenotrevivedbytheFifth
Amendment. The question of petitioner's disqualification to be an elector has to be decided solely byreferencetoArticle
89 (e) (iii) of the 1978 Constitution. For the reasons set out above this Article does notdisqualifythepetitionerfrom
being an elector in terms of Articles 88 and 89 of the Constitution

Case referred to :
1. Hack v. London Provident Building Society (1833123 Ch. D. 103, 108.
REFERENCE by the Court of Appeal to the Supreme Court.
K. N. Choksy, P.C., with Mark Fernando, P.C., Daya Pelpola, D. H N. Jayamaha, Ronald Perera, and Lakshman Perera for the
Petitioner.
M. S. Aziz, D. S G. with Ananda Kasturiarachchi, S.C. for the 1st and 2nd Respondents.

July 2, 1985.

SHARVANANDA, C.J.
In terms of Article 123(1) of the Constitution, the following questions relating to theinterpretationofArticle89(e)
(iii) of the 1978 Constitution have been referred by the Court of Appeal, to this court for determination :
(a) In view of the provisions of Articles 88, 89 (e) (iii) and 90 of the Constitution, does section 82D(b)(ii)ofthe
Ceylon (Parliamentary Elections) Order in Council 1946 read with the Fifth AmendmenttotheConstitutionnowoperateto
impose on such a candidate as is referred to in section 82 D (2). (b) (ii) of the said Order in Council thedisqualification
to being an elector at an election of Members of Parliament or of being elected as a Member of Parliament.
(b) Where the report made by an Election Judge finds that the corrupt practice of making . a false statementoffactunder
section 58 (1) (d) of the Ceylon (Parliamentary Elections) Order in Council 1946, had been committed by apersonactingas
agent and with the knowledge and consent of a candidate at such election, is such candidate subject tothedisqualification
contained in Article 89 (e) (iii) of the Constitution.
(c) Do the words ....... a report made by a Judge finding him guilty of any corrupt practice ...... in Article 89(e)(iii)
of the
Constitution -

apply only to such a person who is set out in such report as having been proved himself to have been guilty (asprovidedin
section 82 (b) of the said Order in Council) of the corrupt apply also to the candidate (though not set outinsuchreport
as having been proved himself to have committed such corrupt practice), whose agent is setoutinsuchreportashaving
committed such practice with such candidate's knowledge and consent."
The above reference has been made by the Court of Appeal in the course of hearing an application foraWritofCertiorari
and Mandamus on the Commissioner of Elections (1 st respondent) and the ReturningOfficerfortheElectoralDistrictof
Mulkirigala (2nd respondent). The election of the petitioner, Ananda Kularatne, as. Member of Parliament -fortheElectoral
District of Mulkirigala at the, by-election held on 18.5.83 was declaredvoidbytheElectionJudge.TheElectionwas
challenged-,on the ground that a corrupt practice, to wit, a false statement of fact in relation tothepersonalcharacter
or conduct of the defeated candidate had been made by one Basil Rajapakse, acting as agent of thepetitioner'orwiththe
knowledge and consent of the petitioner, in breach of section 58 (1) (d) of the Ceylon(ParliamentaryElections)Orderin
Council. This determination of the Election Judge was in appeal affirmed by the Supreme Court.
The Election Judge also made a report under section 82 of the said OrderinCouncil.Thisreportwaspublishedinthe
Gazette of 1.1.85 (P 3). It states that :
"In terms of section 82 of the Ceylon (Parliamentary Elections) Order in Council, I do herebyreportthatinviewofmy
findings in the Election Petition that the 2nd respondent to the said Election Petition, Mr. Basil RajapakseofMedamulana,
Weeraketiya, is proved to have committed a corrupt practiceofmakingandpublishingafalsestatementaffectingthe
personal character and conduct of the petitioner Nirupama Rajapakse who was a candidate in the said election for thepurpose
of affecting the return of the said candidate, acting as agent and with the knowledge and consent of the 1 strespondentto
the said petition, Mr. Ananda Kularatne."
Consequent to the aforesaid report the respondents claiming to act under section 82 D (3) read with section 82(d)(2)(b)
(ii) of the said Order in Council, deleted the name of the petitioner from the Register of electors. Thepetitionerinhis
application avers that the removal of his name from the Register of electors is in violation of his constitutional andcivic
rights, in particular, the right of franchise and accordingly seeks -
(a) a Writ of Certiorari to quash the decision of the 1 st and/or 2nd respondent to remove hisnamefromtheRegisterof
electors and
(b) a Writ of Mandamus to compel the 1 st and/or 2nd respondent to restore his name in the Register of electors Section 82D
(2) (b) (i) reads
. : . where the report` referred to in paragraph (a) is to the effect that a corrupt or illegal .practice has beencommitted
by' any person, that person shall be subject to the same incapacities as if at the date of the'saidreport`hehadbeen
convicted of that practice."
The ?crucial, .question which arises is whether the disqualification createdby section 82 D (2) (b) (ii) of the saidOrder
in Council relied on by the respondents is countenanced- by Article 89 (e) (iii) of the (1978) Constitution.
Section 82 D (2) (b) (ii) of the Election, Order-in Council reads as follows
"Where the report referred to in paragraph (a ) is to the effect that such corrupt....practicewascommittedwiththe
knowledge and consent of the person. Who was a candidate at an election or by his agent, that person shall be subject tothe
same incapacities as aforesaid. ""

Section 58(2) spells' the incapacities to which a person convicted of corrupt practice is subject to, it states :-
'Every person who is convicted of a corrupt practice shall, by conviction, become incapable for a period of seven yearsfrom
the date of his conviction of being registered as an elector or of voting at any electionunderthisOrderor-ofbeing
elected as a Member of Parliament."
Section 4(1) (f) of the Order in Council provides that -
"no person shall be qualified to have his name entered or retained in any register of electors in any year if such personis
incapacitated of being registered as an elector by reason of his conviction of a corrupt or illegal. practiceorbyreason
of the report of an Election Judge in accordance with the said Order."
Section 13(3) (h) of the Ceylon (Constitution) Order in Council 1946, Chap. 379 provides that a person shall bedisqualified
from being elected as a Member of the House of Representatives -
''if by reason of his conviction for a corrpt practice or by reason of the report of the Election Judgeinaccordancewith
the law for the time being in force relating to the election of Members of ' Parliament, he is incapable of beingregistered
as an elector or of being elected as a Member of Parliament-"

Thus in terms of the 1946 Constitution, read with the (Parliamentary Elections) OrderinCouncil,whereareportofan
Election Judge states that a candidate himself committed a corruptpracticeorsuchcorruptpracticewascommittedby
another person with the candidate's knowledge and consent orsuchcorruptpracticewascommittedbyanagentofthe
candidates, the candidate in all the three circumstances,stooddisqualifiedforaperiodofsevenyearsfrombeing
registered on an elected or being elected to Parliament.
The Ceylon (Constitutional) Order in Council, 1946 was superseded by the Constitution of Sri Lanka,1972Section12(1)of
that Constitution provides -

"Unless the National State Assembly otherwise provides, all laws, written and unwritten,inforceimmediatelybeforethe
commencement of the Constitution, except such as are specified inSchedule"A"shall,mutatismutandis,andexceptas
otherwise expressly provided' in the Constitution, continue in force."
(Schedule 'A' referred `to in this section includes the "Ceylon (Constitution and Independence)Order-in-Council,1947and
1947)"
Section 66 of the 1972 Constitution provides -

""Every citizen ..... unless disqualified as hereinafter provided, isqualifiedtobeanelectoratelectionstothe
National State Assembly."
Section 68 of the Constitution enumerates the disqualifications to be an elector. Section 68(d) (iii) states thatnoperson
shall be qualified to be an elector at an election of members of the National State Assembly if a period of sevenyearshas
not elapsed since
" the last of the dates, if any, being a date after the commencement of the Constitution of areportmadebyanElection
Judge finding hire guilty of any corrupt practice under the Ceylon (Parliamentary Elections) Order in Council - 1946 . . "
Section 69 provides that every person who is qualified to be an elector is qualifiedtobeelectedasaMemberofthe
National State Assembly unless he is disqualified under the provisions of section 70 Section 70 of the Constitutionprovides
that -
"No person shall be qualified to be elected as a Member of the National State Assembly, inter alia (a) if he becomes subject
to any of the disqualifications in section 68."
From and after the promulgation of the Constitution viz 22 5.1972, itisclearthatthequestionwhetherapersonis
disqualified to be an elector or to be' elected as a Member of Parliament has to be determined exclusivelybyreferenceto
the provisions of sections 66 to 70 of the 1972 Constitution and not by reference to the (Parliamentary Elections)Orderin
Council, 1946

It is significant that section 68(d) (iii) of the 1972 Constitution employs words different to thephraseusedinsection
4(1) (f ) of the 1946 Election Order-in-Council and section 13(3) (h) of the Ceylon (Constitution) OrderinCouncil.Prior
to the enactment of 1972 Constitution a person was disqualified to be an elector or to be elected as a Member ofParliament,
inter alia, if he was incapableofbeingregisteredasaelectororbeingelectedasaMemberoftheHouseof
Representatives, by reason of the report of an Election Judge in accordance with the Ceylon (ParliamentaryElections)Order
in Council However the 1972 Constitution altered it to provide that he will be so incapable only if a report ofanElection
Judge finds him guilty of any corrupt practice under the (Parliamentary Elections) Order-in-Council 1946
Section 82 of the Elections Order in Council (1946) mandates the Election Judge to report the names and descriptionsofall
persons, if any, who have been proved at the trial to have been guilty of any corrupt practice.

Section 82D (2) (b) (i) and (ii) of the Elections Order in Council spells out the penal consequences of being reported tobe
guilty of any corrupt practice by the Election Judge - not only theoffendershallsufferanyincapacitybutalsothe
candidate himself if the report was to the effect such corrupt practice was committed with his knowledge andconsentorby
his agent. The candidate suffers this punishment not because he had been found guilty of corrupt practicebutconsequential
to his agent or his supporter, with his knowledge and consent, having been found guilty of committing thecorruptpractice.
The candidate has by an express provision of the law, been made to suffer the incapacity for the fault of his agentorsuch
supporter. Thus by reason of the report of the Election Judge not only the personreportedtobeguiltyofanycorrupt
practice by the Election Judge but also the candidate whose agent he is, or with whose knowledgeandconsenthecommitted
it, is rendered incapable for a period of seven years from being registered as an elector or of being elected as a Memberof
Parliament. Section 68(d) (iii) of the 1972 Constitution replaced section 82D (e) (b) (i) and (ii)andprovidedthatonly
the person found guilty of a corrupt practice is disqualified from being an elector. There is a materialdifferenceinthe
language employed in the relevant section of the Elections Order-in-Council and oftheConstitution.Theframersofthe
Constitution must have had some purposeindepartingfromthelanguageoftheElectionsOrder-in-Council.Whenthe
legislature, legislating '"in pari materia- and substituting a new provision for those which existed in anearlierstatute,
changes the language of the enactment, it must be taken to have done so with some intention and motive.Whenthewordsin
the later statute differ from those of the earlier statute it must be presumed that the legislatureintendedtoalterthe
law and that the legislature had a specific purpose in doing so. As Jessel M. R., said in Hack v. LondonProvidentBuilding
Society (1) at p. 108 -

"it is the duty of the court first of all to find out what the ActofParliamentunderconsiderationmeansandnotto
embarass itself with previous decisions on former Acts, when considering theconstructionofaplainstatuteframedin
different words from the former Act."
If the later Act can clearly have only one meaning we ought to give effect to it accordingly.
By virtue of Section 12 of the 1972 Constitution that part of the 1946 Elections Order-in-Council which is in conflict oris
inconsistent with the express provision of section 68 of that Constitution cannot survivetheConstitutionandcannotbe
part of the 'existing law.'
The Constitution of Sri Lanka, 1972, was succeeded by the Constitution of the DemocraticSocialistRepublicofSriLanka
1978. Article 88 of the later Constitution provides that "every person shall, unless disqualified as hereinafter providedbe
qualified to be an elector at the election ofthe.PresidentandoftheMembersofParliamentandtovoteatany
Referendum."

Article 89 of the 1978 Constitution sets out the disqualification to be an elector -
No person shall be qualified to be an elector at an election of the President, or of the Members of Parliament or to voteat
any Referendum, if he is subject to the disqualifications, inter alia , if a period of seven years has not elapsedfromthe
last of the dates, if any being a date after the commencement of the Constitution, of a report made by aJudgefindinghim
guilty of any corrupt practice under the Ceylon (Parliamentary Elections) Order in Council, 1946 or underanylawforthe
time being relating to the Referendum or to the election of the President or of Members of Parliament. (Art. 89 (e) (iii)).
Article 101 of the Constitution provides that -
"Parliament may by law make provision, inter alia for (a) the registration of electors
Provided that no such law shall add to the disqualification specified in Articles 89 and 91.
Article 91 recites the disqualifications for election as a Member of Parliament -
Article 101 (2) provides that "untilParliamentbylawmakesprovisionforsuchmatters,theCeylon(Parliamentary
Elections) Order in Council, 1946, as amended from time to time, shall,subjecttotheprovisionsoftheConstitution,
mutatis mutandis, apply. ?
Article 89 is the governing provision reciting the disqualification to be an elector. Article 91, is the governingprovision
specifying the disqualification for election as a Member of Parliament.

The Parliamentary Elections Act No. 1 of 1981 , which came into operation on 16th February, 1981, repealed parts I and IVto
VI (both inclusive) of the Ceylon (Parliamentary Elections) Order in Council, 1946. Section 4 oftheOrder-in-Councilthus
stood repealed. It was pointed out that section 107 of the (Parliamentary Elections) Act No. 1 of1981re-enactedwordto
word sections 82 and 82D (2) (b) (ii) of the Ceylon (Parliamentary Elections) Order-in-Council 1946andthatintermsof
this provision, where an Election judge reports that a corrupt practice was committed by any person withtheknowledgeand
consent of the candidate or by his agent, the candidate himself and that person will become incapable for a periodofseven
years from being registered as an elector or of being elected as a Member of Parliament.Certainlythisprovisioninthe
Parliamentary Elections Act No. 1 of 1981, to the extent that it adds to the disqualifications specified inArticle89-of
the 1978 Constitutionis violative of Article 101 of that Constitution. It is not necessary in this case todecideonthe
validity of this provision vis-a-vis : the Constitution of 1978, as it is common ground that the Parliamentary ElectionsAct
No. 1 of 1981 , does not govern the facts of this case.

It is not disputed that the eligibility of the petitioner to be an elector at an election of the Members of Parliament orto
be elected as a Member of Parliament has to be determined according to provisions of Articles 88, 89 (e) (iii) and 90 ofthe
Constitution read with the Fifth Amendment to the Constitution which provides that "Parts 1, IV toVI(bothinclusive)of
the Ceylon (Parliamentary Elections) Order in Council 1946, shall for the purpose of theelectionandnotwithstandingthe
repeal of such Order in Council, be deemed to be in force, and shall mutatis mutandis except as otherwise expresslyprovided
in the Constitution apply to such election."" Hence in so far as section 82D (2) (b) (ii) isinconsistentwithArticle89
(e) (iii) of the 1978 Constitution, it will have to yield tothatArticleandanydisqualificationprescribedbythat
section, in so far as it is. in conflict with Article 89 of the Constitution, will cease to be operative and cannot imposea
disqualification to being an elector at the election of Members of Parliament or to being elected as a Member of Parliament.
On the facts in the case the issue whether the petitioner is disqualified from being an elector or from beingelectedasa
Member of Parliament has to be determined solely by reference to. Articles 89 and 91 of the Constitution. Hence therelevant
question is whether in terms of Article 89 (e) (iii) the petitioner has been reported by a Judge to havebeenfoundguilty
of a corrupt practice under the (Parliamentary Elections) Order in Council, 1946 if not, the petitioner is qualified tobe
an elector and to be elected as a Member of Parliament.
Admittedly the relevant report of the Election Judge (P3) does not find the petitioner guilty of anycorruptpractice.The
report only finds that Basil Rajapakse acting as an agent and with the knowledge and consent of the petitioner was provedto
have committed a corrupt practice.

The Deputy Solicitor-General submitted that in the English concept of election law a person can be guiltypersonallyorby
his agent and that accordingly when the petitioner's agent was foundguiltyofcorruptpracticebythereportofthe
Election Judge not only was the agent so guilty but the candidate himselfwasdeemedtobeguilty.Hesubmitted-that
"guilty of" should be construed to mean "culpably responsible for" He urgedthatthecandidateshouldbeheldculpably
responsible for the corrupt practice committed by his agent or with his knowledge and consent. According to him, itwasnot
sufficient that election law made the candidate answerable, in that, his election is declared void for the commission ofthe
corrupt practice : he should also suffer the same incapacity as the offender. I cannot agree. Suchpunishmentisamatter
for the legislature. Unless statute law specifically soprovides as by the aforesaid section 82D(2)(b)(ii),vicarious
liability in common law does not extend to the deprivation of one's franchise to which the
Constitution attaches the attribute or stamp of inalienability.

The corresponding English Law is set out in sections 138 and 139 of theRepresentationofthePeopleAct1949-Section
138(i) provides that -
"the report of an election court shall state whether any corrupt practice has or has not been proved to havebeencommitted
by or with the knowledge and consent of any candidate at the election and the nature of the corrupt practice."
Section 138 (ii) states -
"for the purpose of the next two following sections, if it is reported that a corrupt practice... . was committedwiththe,
knowledge and consent of a candidate he shallbetreatedashavingbeenreportedpersonallyguiltyofthatcorrupt
practice."
Section 138 (iii) provides that the report shall also state -
"whether any of the candidates has been guilty by his agent of any corrupt practice in reference to the election. . . "

Section 139(1) enacts that -
"if a candidate who has been elected is reported by an election court personallyguiltyorguiltybyhisagentofany
corrupt practice his election shall be void."
Section 139(2) states that -

"a candidate at a parliamentary election shall also be incapable from the date ofthereportfrombeingelectedtoand
sitting in the House of Commons. . . .
(a) if reported personally quality of a corrupt practice, for ten years I -
(b) if reported guilty by his agent of a corrupt practice, for seven years "'
It will be seen that for the purpose of the provision which imposes civil incapacity on a candidate personallyguiltyofa
corrupt practice, if it is reported that a corrupt practice was committed with the candidate's knowledge and consent,heis
to be treated as having been reported personallyguiltyofthecorruptpractice.Acandidatemayalsosuffercivil
incapacity if the report states that the candidate has been guilty by his agent of: any corrupt practice in reference tothe
election
According to -English, election laws, candidate can be guiltypersonallynotonlyforsomecorruptpractice'actually
committed by him, but also if it is reported that a corruptpracticewascommittedwiththecandidate'sknowledgeand
consent. The candidate will also be guilty by his agents of a corrupt practice, ifthereportfindsthathisagenthad
committed a corrupt practice.

The aforesaid provisions do not lend support to the Deputy Solicitor General's submission that a report of an ElectionJudge
finding that a corrupt practice had been committed by the candidate's agent or with his knowledgeandconsent,necessarily
imports the idea that the candidate has been found guilty of a corrupt practice. It was-expressly enacted that theguiltof
the agent or of the person who committed the corrupt practice with the knowledge andconsentofthecandidateshouldbe
attributed to the candidate.: The English draftsman has been careful to draw the.-distinction between "personal. guilty"and
""guilty by his agent" and :when he makes provision for: the case of a corrupt: practice committedwiththeknowledgeand
consent of a candidate, he specificallyinvokes the aid of a deemingsectionbystating"he(thecandidate)shallbe
treated as having been reported personally guilty of corrupt practice," for the purpose of the avoidance of the electionand
of imposing incapacity on. the candidate. There is no justification for superimposing the Englishstatutoryconceptof`a
candidate being" guilty personally or by his agent of any corrupt practice" on the plain language ofArticle89(e)(iii)
which speaks only `of a "report' made by a Judge finding him guilty of any corrupt practice.'

Article 89 of the 1978 Constitution provides for the disqualification of a person arising fromafindingofanElection'
Judge that he is guilty of any corrupt _practice under the Ceylon (ParliamentaryElections)OrderinCouncil.Thiswill
cover only the case of the person found guilty of himself having committed a corrupt practice. IfasinEnglishLawthis
disqualification is to attach to any person found guilty by his agent of any corrupt practice orbyanypersoncommitting
with his knowledge and consent any corrupt practice, the draftsman could have adopted the parallel provisions of theEnglish
Representation of Peoples Act 1949 and specifically stated so. In the absence of such specificprovisionsassections138
and 139 of the English Representation of Peoples Act 1949, it is not open for this court to read into Article89(e)(iii)
of the Constitution words which are not there, words which would enlarge the ambitofthedisqualification.Thereisno
warrant for, attributing to the words 'finding him guilty of any corrupt practice' in Article89(e)(iii)thesenseof
"finding him guilty by his agent or by any person with his knowledge and consent of any corrupt practice."
On the basis of the aforesaid reasoning this court determines the questions referred to it as follows
Question -
a. Answer - No.
b. Answer - No.
c. The words ". .... a report made by a Judge finding him guilty of any corrupt practice...... in Article 89(e) (iii) ofthe
Constitution apply only to such a person who is set out in such report as having been proved himself to have been guilty(as
provided in section 82 (6) of the said Order-in-Council) of the corrupt practice of making such false statement offactand
does not apply also to the candidate (though not set out in such report as having been proved himself to have committedsuch
corrupt practice), whose agent is set out in such report as having committed such practice withsuchcandidate'sknowledge
and consent.

The provisions of section 82D (2) (b) (ii) and 83D(3) of the Elections Order in Council ceased tobelawwiththecoming
into existence of the Constitution of 1972 and hence were not'existinglaw'whentheConstitutionof1978cameinto
operation. Being inconsistent with Article 89 (e) (iii) ofthe1978ConstitutiontheywerenotrevivedbytheFifth
Amendment. The question of petitioner's disqualification to be an elector has to be decided solely byreferencetoArticle
89 (e) (iii) of the 1978 Constitution. For the reasons set out above this Article does notdisqualifythepetitionerfrom
being an elector in terms of Articles 88 and 89 of the Constitution. The Court of Appeal is directed tomakeitsorderon
the petitioner's application in the light of the answers given above, by this court.

COLIN THOME, J. - I agree.

ATUKORALE, J. - I agree.

Case sent back for order of the Court of Appeal.


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