Legal Services and Laws of Sri Lanka
SLR - 1988 Vol.2, Page No - 383
KULARATNE AND OTHERS
L. H. DE ALWIS, J.
SENEVIRATNE, J. &
H. A. G.' DE SILVA, J.
ELECTION PETITION NO. 1/1986 (Election Petition, No. 1:/1985- Electoral District No. 75 - Mulkirigala)
JULY 20, 21, 22, & 23, 1987 & SEPTEMBER 28 & 29, 1987.
Election Petition - Parliamentary Election for Mulkirigala - DisqualificationforelectioninconsequenceofReportof
Election Judge in earlier election that a corruptpracticehadbeencommittedbyagentof1stRespondent-.Ceylon
(Parliamentary Elections) Order in Council S. 82 D (2) (b) (ii) - Striking. out' of1stRespondent'snamefromElectoral
Register by Returning Officer under S.82 D(3) -Certiorari to quash action of Returning Officer-Mandamus torestorenameto
Register- Reference to the Supreme Court.
The 1st Respondent's election to the Mulkirigala Parliamentary seat was set aside asvoidonthegroundthatacorrupt
practice of making false statements about the character and conduct of the SLFP candidate (in terms of S.58(i) (d) readwith
S.77 (c) of the Ceylon (Parliamentary Elections) Order-in-Council 1946 had been committed by the Agent of the 1stRespondent
with his knowledge and. consent. The Report of the Election Judge to this effect was published in thegazetteextraordinary
of 1.1.85 and petitioner contended that by reason of this Report 1st Respondent was disqualified from electionasaMember
of Parliament. Following on this Report the Returning Officer, Hambantota purporting to act under S.82D(3)oftheCeylon
(Parliamentary Elections) Order in-Council struck out the name of the 1st Respondent from theElectoralRegister.The1st
Respondent sought a Writ of Certiorari quashing the action of the Returning Officer, from the Court of Appeal. TheCourtof
Appeal referred three questions arising from this to the Supreme Court for its determination:
(a) In view of the provisions of Article 88 and 89D (e) (iii) and 90 of the Constitution does section 82D(2) (a) (ii) ofthe
Ceylon (Parliamentary Elections) Order-in-Council read with the 5th Amendment to the Constitution now operatetoimposeon
such a candidate as is referred to in S.82D (a) (ii) of the said Order in-Council the disqualification ofbeinganelector
at an election of Parliament or of being elected as Member of Parliament?
(b) When the Report of an Election Judge finds that the corrupt practice of making a false statement offactunderS.59(1)
(d) of the -Ceylon (Parliamentary Elections) Order-in-Council 1946, has been committed by a person acting as Agentwiththe
knowledge and consent of a candidate at such election is such candidatesubjecttothe-disqualificationcontainedin
Article 89(e) (iii) of the Constitution?
(c) Do the words " . . a report made by a Judge finding him guilty of any corrupt practice . . . ." inArticle89(e)(iii)
of the Constitution apply only to such person who is set out in the Report to have been proved himself tohavebeenguilty
(as provided in Section 82(6) of the Order in-Council) of the corrupt practice of' makingafalsestatementoffact,or
apply also to a candidate (though not set' out in such report ofhavingprovedhimselftohavecommittedsuchcorrupt
practice) whose . Agent inset out in such Report as havingcommittedsuchpracticewiththecandidate'sknowledgeand
By its determination dated 2.7.85 the Supreme Court answered the questions as, follows:---,-, -
(c) The words : : . a report made by a Judge finding him guilty : -_--corrupt practice .. :: .'.' in Article 89(e)(iii)of
the Constitution apply only to such a person who is set out in "such report as, havingbeenprovedhimselftohavebeen
guilty (as provided in S.82(6) of the said Order-in- Council) of a corrupt practice of making such falsestatementoffact
and does not apply to the candidate .... (though not himself set out in. such report as having been provedhimselftohave
committed: such corrupt practice) whose Agent is setoutinsuchReport-.ashavingcommittedsuchpracticewiththe
candidate's knowledge and consent.
The Court of Appeal ordered the restoration of the 1st Respondent's naive to the Electoral Register by a Writ of Mandamus.
In view of the Supreme, Court ruling the Returning Officer overruled the objection to the nomination ofthe1stRespondent
at the fresh election thatwasheld.IntheElectionPetitionthatfollowedthepetitionerpressedtheissueof
disqualification but the Judge held that he was bound by the decisionoftheSupremeCourtanddismissedtheElection
Petition. An appeal. to the Supreme Court on two questions were raised at the threshold of the argument on behalf of the1st
(a) The Supreme Court was bound by the determination.
(b) The Court is bound by its decision of 2.7.85 since it was made in' the,. exercise of its constitutional jurisdiction`in
the interpretation of the Constitution, under Article 125 of the Constitution.
Apart from this the main contention of the petitioner was that's. 82(D)(b).(2)oftheCeylon(ParliamentaryElections)
Order-in-Council 1946 read with the 5th Amendment to the Constitution applies and operates to disqualify the1stRespondent
from standing for election or being elected a Member of Parliament.
(WANASUNDERA J. - Dissenting)
(1) The Supreme Court in the exercise of any of its several jurisdictions under Article118.subjecttothedoctrineof
stare devises is not bound by the determination of 2.7.85.
(2) The qualifications to be an elector and to be a Member of Parliament are provided for specifically by Articles 89 and90
of the Constitution and it is to these Articles that one must look to find out whether the 1st Respondent is qualified tobe
an elector or to- be a Member, of Parliament in an election held in terms of the 5th Amendment. Under .these provisionsonly
the person found guilty of a corrupt practiceisdisqualifiedfrombeinganelectororMemberofParliament.These
provisions do. not disqualify the 1st Respondent.'
Cases referred to:
1. Back v. London Provident Building Society (1883) 23 Ch. Div. ,103, 1-0.8.
2. Shanmugam v. Commissioner of Registration of Indian and Pakistani Residents - 64 NLR 29.
Appeal from Judgment of Election Judge.
Nimal Senanayake P.C. with Miss Suriya Wickremasinghe, Sanath Jayatilleke. Nimal Siripala de Silva, Miss S. N. Senaratne,
Mrs. Lalitha Senaratne, Mrs. A. B. Dissanayake, L. M. Samarasinghe and Miss Shiranthi de Saram for Petitioner
K. N Choksy P.C. with Daya Pelpola. D. H. N Jayamaha, Laxman Perera and A. L. Brito Muthunayagam for 1st Respondent. `
S. W. B. Wadugodapitiya, Addl. Solicitor-General with Tony Fernando, S.C. for 8th and 9th Respondents.
November 26, 1987
The Petitioner-Appellant filed Election Petition No.% 1 -,of 1985 challenging the election of the 1stRespondentasMember
of Parliamentfor the Electoral District No. 75, Mulkirigala, at the by-election held on12thSeptember,1985.Thesaid
petition was filed on the ground that the 1st Respondent was disqualified for election as Member of Parliament `atthesaid
by-election, in consequence of a ReportofanElectionJudgeintermsofsection82D(2.)(b)(ii)oftheCeylon
(Parliamentary Elections) Order in Council. This Report was made on an earlier Election Petition 3/83 in whichtheelection
of the 1st Respondent was set aside as void' on the ground that a corrupt practiceofmakingfalsestatementsaboutthe
character and conduct :of the S.L.F.P. candidate, in terms of section 58(1)(d)readwithSection77(c)oftheCeylon
(Parliamentary Elections) Order in Council 1946, had been committed bytheAgentofthe1st.Respondentandwiththe
knowledge- and consent of the 1st Respondent. This .Report of :the, ElectionJudgewaspublishedintheGazetteExtra
ordinary dated 1.1.85: It was contended by the Petitioner that byreasonofthesaidReportthe'1stRespondentwas'
disqualified from election as a Member of Parliament for the Electoral District No.. 75, Mulkirigala at the by-electionheld
on 12th September 1985:
Following on the Report of theElectionJudge,theReturningOfficer,Hambantotapurportingtoactunder:section.
82.(D).(3) of the Ceylon (Parliamentary Elections) Order in Council :struck out the nameofthe1stRespondentfromthe
Electoral Register. Thereupon the 1st Respondent challenged this action of- the Returning Officer by application No.112/85.
for the issue of a` Writ of Certiorari made to the Court of Appeal. When the application C.A.112/85cameupforhearing
before the Court of Appeal that court acting under Article 125 (ii) of the Constitution referred the followingquestionsto
the Supreme Court for determination:
(a) In view of the provisions of Articles 88 and 89(e) (iii) and 90 of the Constitution.- does section82D(2)(a)(ii)of
the Ceylon (Parliamentary Elections), Order in' Council - read with the 5th Amendment totheConstitutionnowoperateto
impose on such a candidate as is referred to in section 82D(a) (ii) of the said OrderinCouncilthedisqualificationof
being an elector at 'an election of Parliament or of being elected -as Member of Parliament?
(b) When the Report of an Election Judge finds that the corrupt practice of making a false statement of fact . undersection
. 59(1)(d) of the Ceylon (Parliamentary Election) Order in Council 1946has been committed by a person. acting as Agentand
with the knowledge and consent of. a candidateatsuchelectionsissuchcandidatesubjectto.thedisqualification
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 person who is set out in the Report to have been proved himself to havebeen.guilty
(as provided in Section 82(6) of the said Order in Council) of the corrupt practice of making a false statement offact,or
apply also to a candidate (though not set-out in such reportofhavingprovedhimselftohavecommittedsuchcorrupt
practice) whose Agent is set-out in such Report ashavingcommittedsuchpracticewiththecandidate'sknowledgeand
By its determination. dated 2.7.85 the Supreme Court answered the aforesaid questions as follows:
(c) the words ". . . : a report made by a Judge finding him guilty of any corrupt practice ... "" in Article No. 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(6) of the said Order in Council) of a corrupt practice of making suchfalsestatementof
fact and does not apply to the candidate (though not set out in suchreportashaving.beenprovedhimself.tohave
committed such corrupt practice) whose Agent issetoutinsuchReportashavingcommittedsuchpracticewiththe
candidate's knowledge and consent.
The Court of Appeal accordingly made Order for the restoration ofthe1stRespondent/Respondent'snameto-theElectoral
Register and issued a writ of Mandamus for this purpose: Subsequently, the by election totheElectoralDistrictNo.75,
Mulkirigala was held. In the light of the aforesaid determination of the SupremeCourtinApplicationNo.11285the
Returning Officer overruled the objection to the nomination to the said electionof ` the 1st Respondent/Respondent thathe
was disqualified on the ground that he had been reported by an Election Judge and seven years had not elapsed since thesaid
At the hearing of the present Election Petition the Petitioner-Appellant pressed again theissueofthe1stRespondent's
disqualification on the aforesaid ground.
After hearing -both parties in the present-'Election Petition No. 1 /85the Election Judgeby-hisdecisiondated26.3.86
held that he was bound by the decision of the Supreme Court in writ Applications No. C.A. 11 2/85, that thereforegroundof
avoidance pleaded by the Election Petition failed and dismissed the Election Petition with costs. : The PetitionerAppellant
has preferred this appeal-from the said. judgment of the Election Judge.
As important questions of law were involved in theappealtheChiefJusticemadeorderundersection132(3)ofthe
Constitution that the Appeal be heard by a Full Bench:
At the, threshold of the hearing of the appeal' it was submitted - by Counsel for the 1 st Respondent that this court
(a) was bound by the determination,
(b) that this court is, bound by the determination.: dated 2.7.85 made by Supreme Court inC.A.11:2/85 :sinceit-was.
made in the exercise of the Supreme Courts constitutional jurisdiction intheinterpretationoftheConstitution,under
Article 125 of the Constitution.
After hearing Counsel on both sides on the preliminary question this court unanimously held that
'' every court or tribunal or other institution. empowered by law to administer justice ortoexercisejudicialorquasi
judicial functions other than the Supreme Court will beboundbydeterminationrelatingtotheinterpretationofthe
Constitution made by Supreme Court on a reference under Article 125(1) of the. Constitution. But theSupremeCourtinthe
exercise of any of its several jurisdictions under Article 118, subject to the doctrine of stare decisis is not bound bythe
said determination"" and proceeded to hear the appeal.
The main contentionoftheCounselforthePetitioner-AppellantwasthatSection82(D).(b)(2)ofthe.Ceylon
(Parliamentary Elections) Order in Council 1946 read with 5th Amendment to the Constitution appliestothefactsofthis
case - and operated to - disqualify the Petitioner Respondent from standing for election or beingelectedasaMemberof
Counsel submitted that the 5th Amendment to the Constitution revived Chapters iv to vi' of the Elections Order in Councilof
1946 and stated that section 82D(2) (b) (ii) of the Order in Council had thereby been given a new lease of life and wasmade
part of the Constitution, by the 5th Amendment. He urged that thesepartsoftheElectionOrderinCouncilhavebeen
incorporated by reference into the Constitution.
In my Judgment dated 2.7.85 determining the -question relating to the relevant provisions of the Constitution in S.C. Ref:1
/85 on the aforesaid C.A. Application No. 112/85, I have dealt fully with the questions involved in this appeal. Counselfor
the Petitioner-Appellant has not persuaded me that my reasoning. and conclusions set out in" the said judgment arewrongor
required qualification. I re-affirm the said reasoning , and conclusions and adopt sameaspartofmyjudgmentinthis
appeal. I quote in extense the following from the said judgment -
" Section 82D(2) (b) (i) reads -
"......where the report referred to in paragraph (a) is to the effect that a corrupt or illegal practice hasbeencommitted
by any person, that person shall be subject to the same incapacities as if of thedateofthesaidreporthehadbeen
convicted of that-practice."
The crucial question which arises, is whether the disqualification created by section 82D' (2) (b) (ii) of the said Orderin
Council Is. countenanced by Article 89(e) .(iii): of the (1978) Constitution.
Section 82D (2) (b) (ii) of the Election Order in Council reads as follows.
''Where the. report referred to in- paragraph (a) is to the effect thatsuch corrupt practicewascommittedwiththe
knowledge, and, consent of the person, who, was a candidate at an election, or by his agent, that personshallbesubject
to the 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 anyelectionunderthisOrderorofbeing
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 practice or by reasonof
the report of an Election Judge in accordance with the said Order."
Section 13(2) (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 corrupt 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 incapableofbeingregistered
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
candidate, the candidate, in all the three circumstances stooddisqualifiedforaperiodofsevenyearsfrombeing
registered as a elector or being elected to Parliament.
The Ceylon (Constitution) Order in. Council, 1946 was superseded by the Constitution of Sri Lanka,1972.Section12(1)
of the Constitution provides -
"Unless the National State Assembly otherwise provides, all laws, written and unwritten, in.force immediatelybeforethe'
commencement of the Constitution, except -such as are specified in Schedule"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 inCouncil.1947`and
Section 66 of the 1972. Constitution provides
"Every citizen unless disqualified as hereinafter provided, is qualified to bean elector at 'elections to the NationalState
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 a report made byanElection
Judge finding film 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, qualified to beelectedasaMemberof:the
National State Assembly , unless he is disqualified under the provisions of Section 70.
Section 70 of the Constitution provides that -
"No person shall be qualified to 'be elected as Member of the National State Assembly, inter alia (a) if hebecomessubject
to any of the disqualifications -in section
From and after-the- promulgation of the Constitution viz: 22 5:1972 it is clear that,thequestionwhetheraperson-is
disqualified' to be an elector or' to be elected "as a Member 'of Parliament has to be determinedexclusivelybyreference
to the. provisions of section 66 to 70 of the 197.2 Constitution and not by reference to the (Parliamentary Elections)Order
in 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 Elections-Order-in-Council and-section 13(3) (h) : of the Ceylon (Constitution) Order in Council.Prior
to the enactment of the 1972 Constitution a person was disqualified to be-anelectorortobeelectedasaMemberof
Parliament, inter alia, if he was incapable of being registered as an elector or being elected as a Member oftheHouseof
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. willbesoincapableonlyifareportofan
Election 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 thenamesanddescriptionsof
all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice.
Section 82D(2) (b) (1) and (ii) of the Elections Order in Council spells out the penal consequences of being reportedtobe
guilty of any corrupt practice by the Election Judge -notonlytheoffendershallsufferincapacitybut.also`the
candidate himself if the Report was to the effect such corrupt practice was #9committed with his knowledgeandconsent-or
by his agent. The candidate suffers thispunishmentnotbecausehe,hadbeenfoundguiltyofcorruptpracticebut
consequential to his agent or his supporter, with. His knowledge and consent, having beenfoundguiltyofcommittingthe
corrupt practice. The candidate has by an express provision of the lawbeen made to suffer the incapacity.!forthefault
of his 'agent "or such supporter. Thus by reason of the report of the Election Judge not onlythepersonreported-tobe
guilty of any corrupt practiceby the Election Judge. but also the candidate whose agent he is, or with whose knowledgeand
consent he committed it, is rendered incapable for a period of seven years from being, registered. as an elector or ofbeing
elected as a Member of. Parliament. Section 68(d) (iii) of the 1972 Constitution replaced section 82D(e)(b)(1)and(ii)
and provided that only the person found guilty of a corrupt practice is disqualifiedfrombeinganelector.Thereisa
material difference in the language employedintherelevant-sectionoftheElections-Order-in-Counciland-ofthe
Constitution. The framers of the Constitution must have had some purpose in departing from thelanguageoftheElections-
Order-in-Council. When the legislature, legislating "in pari materia" and substitutinganewprovisionforthosewhich-
existed in an earlier statutechanges the language of the enactment, it must be taken to have done sowithsomeintention
and motive. When the words in the later statute 'differ. from those. of the -earlier statute, it must be presumed'- thatthe
legislature intended to alter the law and that the legislature had a specific purpose in doing so. As JesselM.R.,saidin
Hack v. London-Provident Building Society (1).
'It is the duty of the court first of all to find out what the ActofParliamentunderconsiderationmoansandnotto
embarrass itself with previous decisions on former Acts, when considering the constructionofaplainstatuteframedin
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 virture of Section 12 of the 1972 Constitution that part of the, 1946 Elections-Order-in-Council which is inconflictor
is inconsistent. with the express provision of section 68 of that Constitution cannot survive the Constitution and cannotbe
part of the 'existing law ".
The Constitution of Sri Lanka197Z, 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: ofthePresidentandoftheMembersofParliamentandtovoteatany
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 ortovote
at any Referendum, if he is subject id the disqualifications, inter alia, if a period of seven yearshasnotelapsedfrom
the last of the dates, if any, being a date after the commencement of the Constitution, of a report made by aJudgefinding
him guilty of any corrupt practice under the Ceylon (Parliamentary Elections) Order in Council, 1946 orunderanylawfor
the time being relating to the Referendum or to the election of the President or-ofMembersofParliament(Art.89.(e)
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 halladd
to the disqualification specified in Articles 89 and 91."
Article 91 recites the disqualification for election as a Member of Parliament.
Article 101(2) provides that until -Parliament by law makes provision for such matters, the Ceylon (ParliamentaryElections)
Order in Council, 1946 as amended, from time to time,shall,subjecttotheprovisionsoftheConstitution,mutatis-
Article-89 is the governing provision reciting' thedisqualificationtobeanelector.Article91 isthegoverning
provision 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 and1Vto
VI (both, inclusive) of the Ceylon (Parliamentary Elections) Order in Council, 1946. Section 4 of the Order-in-Council thus
stood repealed. It was, pointed out- that section . 1.07 ,of the (Parliamentary Elections) ActNo.1of.1981re-enacted
word to word sections 82 and 82D(2) (b) (ii) of the Ceylon (Parliamentary Elections) Order in Council 1946 and that interms
of this provision, where an Election Judge. reports that a corrupt practice was committed by any personwiththeknowledge
and consent of the candidate or by his agent, the candidate himself and that person will become incapableforaperiodof
seven years from being registered as an elector or of being elected as a Member of Parliament. Certainlythisprovisionin
the Parliamentary Elections Act No, 1 of 1981, to the extent that it adds to the disqualifications specifiedinArticle89
of the 1978 Constitution, is violative of Article 101 of that Constitution. It is not necessary in this caseto.decideon
the validity of this provision viz-a-viz, the Constitution of 1978, as it is common ground that theParliamentaryElections
Act 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 MembersofParliamentor
to be elected as a Member of Parliament has to be determined according to provisions of Articles 88, 89(e) (iii)and90of
the Constitution read with the Fifth Amendment to the Constitution which provides that Parts I, IV to VI (both inclusive)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 -andexceptasotherwiseexpressly
provided in the Constitution apply to such election." -Hence in so far as section 82 (e) (2) (b) (ii)isinconsistentwith
Article 89(e) (iii) of the 1978 Constitution, it will have to yield to that Article and anydisqualificationprescribedby
that section, in so far as it is in conflict with Article 89 of the Constitution, willceasetobeoperativeandcannot
impose a 'disqualification to being an elector at the election of e Member of Parliament or to being 'elected as a Memberof
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, 91 of theConstitution.Hencetherelevant
question is whether in terms of Article 89(e) (iii) the Petitioner has been reported by a Judge to have been found guiltyof
a corrupt practice under the (Parliamentary Sections) Order in Council, 1946if not, the Petitioner is qualifiedtobean
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 guilty personallyorby
his agent and that accordingly when the. Petitioner's agent was found guilty ofcorruptpracticebytheReportof.the
Election Judge not only was the agent so guilty but the candidate himself was deemed to be guilty. He submitted that"guilty
of" should be construed to mean "Culpably responsible for." He urged that the candidate should be: held culpablyresponsible
for the corrupt practice committed by his agent or with his knowledge and consent.
According to him, it was not sufficient that election law made the candidate answerable, in that,hiselectionis-declared
void for the commission of the corrupt practicehe should also suffer the same incapacity as the offender. Icannotagree.
Such punishment is a matter for the legislature. Unless. the statutelawspecificallysoprovidesasbytheaforesaid
section 82D(2) (b) (ii), vicarious liability in common law does not extend to the deprivation ofone'sfranchisetowhich
the. Constitution attaches the attribute or stamp of inalienability.
The corresponding English Law is set out in sections -138 and 139 of the Representation of thePeoplesAct-1949.Section
138(1) 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 corruptpractice.
. . . was, committed with the knowledge and consent of a candidate he shall be treated ashavingbeenreportedpersonally
guilty of that corrupt practice."
Section 138 (iii) provides that the Report shall also state "whether any of the candidates has been guilty byhisagentof
any corrupt practice in reference to the election . : ."
Section 139(i) enacts that "if a candidate who has been elected is reported by an Election court personally guilty orguilty
by his agent of any 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 of the reportfrom
being elected to and sitting in the House of Commons......
(a) if reported personally guilty of 'a corrupt practice, for ten years:
(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 personally guilty.ofthecorruptpractice.Acandidatemayalsosuffercivil
incapacity if the Report states that the candidate has been guilty by his agent of any corrupt practice in referencetothe
According to English laws, a candidate can be guilty personally not only for somecorruptpracticeactuallycommittedby
him, . but also if it is reported that, a corrupt practice was committed with thecandidate'sknowledgeandconsent.The
candidate will also be guilty by his agents of a corrupt practice, if the Report finds that his agent hadcommittedcorrupt
The aforesaid provisions do not lend support to... Deputy Solicitor General's submission that a Report of anElectionJudge
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 "personallyguilty"and
"guilty by his agent" and when he makes provision for the case ofacorruptpracticecommittedwiththeknowledgeand
consent of a candidate, he specifically invokes the aid of a deeming-section by stating that "he -(thecandidate)shallbe
treated as having been reported personally guilty of corrupt practice," for the purpose of the avoidance of electionandof
imposing incapacity on the candidate. There is no' justification for superimposingtheEnglishstatutoryconcept,of"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. If asinEnglishLawthis
disqualification is to attach to any person found guilty by his agent of any corrupt practiceorbyanyperson-committing
with his knowledge and consent of any corrupt practice, the draftsman could haveadoptedtheparallelprovisionsofthe
English Representation of Peoples Act '1949 and specifically stated so. In the absence of such specific provision assection
138 and 139 of the English Representation of Peoples Act 1949, it is not open for this courttoreadinto'Article89(a)
(iii) of the Constitution words which are not there, words -which would enlarge the ' ambit ofthedisqualification.There
is no warrant for attributing to the 'finding him guilty of any corruptpractice'inArticle89(6)(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:
(c) The words".......... a report made by a Judge finding him guilty of any corruptpractice........."inArticle89(e)
(iii) of the Constitution apply only to such a person who is set out in such report as having been provedhimself-tohave
been guilty (as provided in section 82(b) of the said Order inCouncil)ofthecorruptpracticeofmakingsuchfalse
statement of fact and does not apply also to the candidate (though not set out in such Report as having beenprovedhimself
to have committed such corrupt practice) whose agent is set out in such Report as having committed suchpracticewithsuch
candidate's. 'knowledge and consent.
The provisions of section 821(2) (b). (ii) and 83 (3) of the Elections Order in Council ceased tobelawwiththecoming
into existence of the Constitution of 1972 and hence werenot"existinglawwhentheConstitutionof1978cameinto
operation. Being inconsistent with Article 89(e) (iii) of the 1978 Constitution they were not revived by the 5th.Amendment.
The question of Petitioner's disqualification to be an elector has to be decided solely by reference toArticle89(e)iii)
of the 1978 Constitution: For, the reasons set out above this Article doesnotdisqualifythePetitionerfrombeingan
elector in terms of Articles 88 and 89 of the Constitution."
Article 161 (a) (iii) of the Constitution as amended by the Fifth Amendment reads as follows:
"Notwithstanding anything to the contrary in any. other provision of the Constitution , . . . the CommissionerofElections
shall thereupon hold an election in accordance with Part l. IV to VI both inclusive of the Ceylon(ParliamentaryElections)
Order in Council, 1946 for such electoral district as existed immediately preceding the Constitutionandonthebasisof
such part. of the register prepared under the Registration of Electors No. 44/80 and inoperationascorrespondstosuch
electoral district. The aforesaid parts of the Ceylon .(Parliamentary Elections) Order in Council 1946 shall for thepurpose
of such election and notwithstanding the repeal of such Order in Council being deemedtobeinforceandshallmutatis
mutandis, and except as otherwise expressly provided in the Constitution apply to such election.
The law applicable to such election petitions in relation to such electoral, district shall be the aforesaidpartsofsuch
Order in Council as applied aforesaid."
Section 2 of the Registration of Electors Act No. 44/80 provides-
"That no person shall be qualified to have his, name entered or retained inanyRegisterofElectorsforanyElectoral
District in any year, if such person is subject to any of the disqualifications specified in Article 89 of the Constitution.
Article 89 of the Constitution specifies the disqualifications to be an elector.
Article 90 provides that every person who qualifies to be an elector, shall be qualifiedtobeelected.asaMemberof
Parliament unless he. is disqualified under the provisions of Article 91, which sets out thedisqualificationforelection
as a Member of Parliament.
disqualifications in Articles 89 and 91.
Acceptance of the submissions of the Counsel for the' Appellant will result in adding to thedisqualificationspecifiedin
Articles 89 and 91 which is forbidden by Article 101.
Counsel for the Appellant stressed that Article 161 which is a transitional provision prefaced its provisions by stating
"Notwithstanding anything to the contrary in any other provision of the Constitution and' contended that as a result ofthis
non-obstinate clause Articles 89, 90 and 91 -are not applicable .to by-elections held in terms of the Fifth Amendment.
The Fifth Amendment does not revivify part (1)andpart(iv)to(vi)(bothinclusive)oftheCeylon(Parliamentary
Elections) Order in Council in their full integrity. They only apply "except asotherwiseexpresslyprovidedforinthe
Constitution" to an election held in terms of the amendment. TheseprovisionsofthosepartsoftheElection-Order-in-
Council will have to beheld to be superseded wherever the provisions of the Constitution have dealt withthesamesubject-
matter in which case, such provisions will govern the subject-matter.
Counsel referred to Shanmugam vs. Commissioner of Registration of Indian &PakistaniResidents(2)whereLordRadcliffe
giving the judgment of the Privy Council, said-
"to be express provision" with regard to something it is not necessary that that thing should be specially mentioned,itis
sufficient that its directly covered by the language however broad the language maybewhichcoversitsolongasthe
applicability arises directly from the language used and not be inference therefrom."
The question of qualifications to be an elector and to be Member of Parliament are provided for specifically byArticles89
and 90 of the Constitution. Therefore it is to these Articles of the Constitution viz: 89' and 90 thatoneshouldlookto
find whether the 1 st Respondent is qualified to be an elector. onto be a Member of Parliament in an election heldinterms
of the 5th Amendment. fn my view, these provisions do not disqualify the 1st Respondent.
The appeal is dismissed with costs.
COLIN-THOME, J.- I agree.
RANASINGHE, J.- I agree.
ATUKORALE, J.- I agree.
TAMBIAH, J.- I agree.
L. H. DE ALWIS, J.- I agree.
SENEVIRATNE, J.- I agree.
H. A. G. DE SILVA, J.-I agree.
This is an appeal from a decision of the Election Judge in Election Petition No. 1/1985 in respect of theelectionheldon
12th September 1985 for Electoral District No. 75 Mulkirigala. The main ground on which the petitioner cameintocourtwas
that Ananda Kularatne, the 1st respondent (hereinafter referred to as the 1st respondent) was disqualified for election asa
Member of Parliament by reason of a report made by an Election Judge inElectionPetitionCaseNo.3/83ataprevious
election for this same seat.
At the hearing of the election petition no oral evidence was led, but counsel marked certain documentsandthematterwas
disposed of on the preliminary objection raised by counsel for the 1st respondent. The preliminaryobjectionwasthatthe
1st respondent's constitutional qualification had already been determined by a ruling of the Supreme Court inReferenceNo.
1/85, and that such ruling was binding on the Election Judge. TheElectionJudgeupheldthepreliminaryobjectionarid
dismissed the petition.
The Election Judge has applied the ruling of the Supreme Court in S.C. No. 1/85. This was a reference by the Court ofAppeal
to the Supreme Court in terms of Article 125(1) of the Constitution in the course of dealing with an application forawrit
of certiorari and mandamus filed in that court C. A. Application No.112/85.Thequestionsthatwerereferredinthat
Reference were the following: -
"(a) In view of the provisions of Articles 88, 89(e) (iii) and 90 of the Constitution does section 82D(2)(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 82D(2) (b) (ii), of the said Order in Councilthedisqualifications
of 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 committedbyapersonactingas
agent and with the knowledge and consent of a candidate at such election is such candidate subjecttothedisqualification
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,Article89(e)
(iii) of the Constitution - apply only to such a person who is set out in such report as having been proved himselftohave
been guilty (as provided in section 82(b) of the said Order inCouncil)ofthecorruptpracticeofmakingsuchfalse
statement of fact?
A brief statement of the sequence of events given in chronological order would explain how the writ applicationcametobe
filed. The seat for the Mulkirigala Electoral District was originally held by oneFranciscu,amemberoftheU.N.P.He
resigned his seat in March 1983. Upon his resignation, and no nomination being made by the Secretary ofthepartytofill
the vacancy, a by-election was held in terms of the provisions of the FifthAmendmenttotheConstitution.Atthisby-
election the 1st respondent was declared elected to the seat.
But an election petition (No. 8 of 1983) was filed against the 1st respondent to have the election set asideontheground
that a corrupt practice of making a false statement about the character andconductoftheopposingcandidatehadbeen
committee by the agent of the 1st respondent or by a person with the knowledge and consent ofthe1strespondent.Atthe
conclusion of the election petition, the Election Judgeheldthatthechargewasestablished.Onappealbythe1st
respondent the Supreme Court confirmed the determination of the Election Judge and dismissed the appeal. This necessitateda
The Election Judge had, in terms of section 82 of the Ceylon (Parliamentary Elections) Order in Council. (Cap. 381),madea
report of the above corrupt practice, which upon being transmitted to His Excellency the President was publishedinGazette
No. 330/8 of 1st January 1985 as required by the provisions of section 82D (2) of the said Order in Council.
The requirement for such application and the effect of the publication are provided in section 82D. Therelevantprovisions
are as follows:-
"82D (2) (a) The Governor-General shall, upon receiptofthereportoftheElectionJudgeoroftheSupremeCourt
transmitted to him under section 82C, cause a copy of the report to be published in the Gazette.
(b) (i) Where the report referred to in paragraph (a) is to the effect that a corrupt or illegal practice has beencommitted
by any person, that person shall be subject to the same incapacities as if at thedateofthesaidreporthehadbeen
convicted of that practice.
(ii) Where the report referred to in paragraph (a) is to the effect that such corrupt or illegal practice was committedwith
the knowledge and consent of a person who was a candidate at an election or by his agent, that personshallbesubjectto
the same incapacities.
(3) It shall be the duty of every registering officer forthwith to peruseeverysuchreportwhichispublishedinthe
Gazette as provided in subsection (2), and forthwith to delete from the register of electors assignedtohimthenameof
every person appearing from the report to be incapable of voting at an election.
His Excellency the President therefore ordered the holding of an election in this electoral district. On10thJanuary1985
the Returning Officer called for nominations of candidates for election. On or about 25th January 1985 the ReturningOfficer
acting in terms of the provisions of subsection 3 of section 83D deleted the name of the 1strespondentfromtheregister
and informed the 1st respondent of such action. On the 28th January 1985 the 1st respondent wrote totheReturningOfficer
requesting that his name be restored to the register. On 30th January 1985 the 1st respondent filedtheapplicationfora
writ of Certiorari and Mandamus, No. CA 112/85, challenging the deletion of his name.Onthe30thJanuarytheCourtof
Appeal granted the 1strespondentanorderstayingthenominationsandnoticesweresimultaneouslyissuedonthe
Commissioner of Elections and the Returning Officer. In February 1985 objections were filed by the respondentsandon28th
March 1985 the Court of Appeal made the Constitutional. Reference No. 1/85, because it appeared that the mainissueinthe
case involved an interpretation of the Constitution.
The Supreme Court in S.C. Reference No. 1/85 held-
(a) that the issue of the 1st respondent's qualification or disqualification from being an elector or from beingelectedas
a Member of Parliament has to be determined solely by reference to Articles 89 and 91 of the present Constitution, and
(b) that the report by an Election Judge that the 1st respondent's agent Basil Rajapakse had committed thecorruptpractice
with the knowledge and consent of the 1st respondent did not bring the 1st respondent within the ambit ofthedisqualifying
provisions contained in Article 89 (e) (iii), since that provision covers only the case of a person who isfoundguiltyof
himself having committed a corrupt practice.
The Election Judge upheld the preliminary objection taken by Mr. Choksy for the 1strespondentthatthe1strespondent's
constitutional qualification had already been determined by the above ruling, which it said was conclusive andproceededto
apply it. In consequence the election petition was dismissed with costs.
The present proceedings constitute an appeal from that decision and this full bench has been constituted to considerwhether
it could review the legal questions that have been earlier decided by this court. By our interim order we decided that itis
open to this bench to review an earlier determination made by a bench of thiscourtwhichisnumericallylessthanthe
Mr. Senanayake canvassed the determination in Reference No. 1/85 on two grounds. First, he submitted that the wording ofthe
disqualification contained in Article 89 (e) (iii) of the present Constitution (which is identical with Article 68 (d)(iii)
of the 1972 Constitution) is adequate to cover the case of the 1st respondent and it neitherindicatesanyvariationfrom
the law that existed previously nor is there evidence of the intention of the Constituent assembliesortheParliamentto
depart from the previous law. In fact thereiseveryindicationthatbothParliament,theGovernmentandthelegal
authorities had understood that provision in that way.
Secondly, Mr. Senanayake submitted that this being an election of a member to the first Parliament, the issue is governedby
the provisions of Article 161 of the present Constitution read with the Fifth Amendment, moreparticularlytheprovisoto
Article 161 (d) (iii). In terms of these provisions the matter is governed by the provisionsoftheCeylon(Parliamentary
Elections) Order in Council. It was his contention that, having regard to the provisions of sections82D(2)(b)(i)and
(ii), section 82D (3), and section 31 (1) (e) of the Ceylon (Parliamentary Elections) OrderinCouncilwhichhavetobe
given effect to in this case, Article 89oftheConstitutioncanhavenoapplicability.Hencethe1strespondent's
disqualification must be determined in terms of the above provisions of the Elections Order in Councilaloneandaccording
to which the 1st respondent is disqualified.
Mr. Choksy on the other hand submitted that the language of Article 68 (d) (iii) of the 1972 Constitution (which isfollowed
in Article 89 (e) (iii) of the 1978 Constitution) shows a marked difference from the language in section 82D (2) (b)ofthe
Ceylon (Parliamentary Elections) Order in Council. While conceding thatundertheoldlawacandidatewhoseagentor
supporter had committed a corrupt practice with the candidate's knowledge and consent would involve the candidate himselfin
liability and with a disqualification, Mr. Choksy submitted that after 1972 the law for good reason had done awaywiththis
vicarious liability. It had now chosen that the candidate should not be visited with such adisqualificationbutthatthe
disqualification should be confined only to the actual offender.
Mr. Choksy submitted that the law contemplated three categories of violatorsofthelaw.First,thecaseofaperson
(candidate or any other person) who himself commits a corrupt practice. Second, the case of an agentofthecandidatewho
commits a corrupt practice. Third,the position of the candidate where the corrupt practice is committed with theknowledge
and consent of the candidate. Mr. Choksy stated that section 82 (b) of the (Parliamentary Elections) OrderinCounciluses
the word "guilty", whereas section 82 (a) and section 82D do not use this word. The use of the word "guilty"inArticle68
(d) (iii) of the 1972 Constitution (which is the equivalent of Article 89 (e) (iii) of the 1978Constitution)isreferable
to the provisions of section 82 (b) which contemplates only the first category above. Accordingly, it is only the personwho
is actually found guilty and so stated in the report to be guilty who will be subject tothedisqualification.Drawingan
analogy with other branches of the law, he stated that the principle of vicarious liability cannot and should not apply ina
case such as thiswhich is of a penal nature.
Elaborating on this, Mr. Choksy submitted further that the word "guilty" must be given its clear and intended meaning,since
it has been used with reference to the report of the Election Judge under the(ParliamentaryElections)OrderinCouncil
which provides for that report, namely to section 82 alone and not to any other section which may define the consequencesof
such offence. Article 89 (e) (iii) requires reference only to the report for the purpose of determining whether apersonis
subject to the disqualification in that Article. The applicability of Article 89 (e) (iii)doesnotdependonanyother
facts or any other legislative provisions. Therefore, a reference to the provisions of section 82D (2) is not permissibleto
determine whether or not a person is disqualified. Section 82 (b) expressly requires an Election Judge, when he hasfounda
person guilty of a corrupt practice to set out such finding. Such a statement isconclusiveforthepurposeofapplying
Article 89 (e) (iii).
Mr. Choksy also relied on certain rules of interpretationinfavourofhiscontention.HecitedBeniononStatutory
Interpretation for the proposition that a court should strive to avoid adopting aconstruction,whichpenalisesaperson
where the legislator's intentions to do so is doubtful or penalises him in a way which was not made clear. Forthispurpose
he said that a law that inflicts hardship or deprivation of any kind is in essence penal and more specifically that astrict
construction should be given to an enactment curtailing voting rights and the franchise.
I am afraid I am unable to agree with the submissions made by Mr. Choksy which to my mind appear to be based ondistinctions
that are unwarranted and unsupported on a true reading of the relevant legalprovisions.Althoughtheoriginalprovision
contained in section 13(3) (h) of the Ceylon (Constitution) Order in Council 1946 (Cap. 379) is worded differentlyfromthe
subsequent provision, I can see no difference in them in substance. What appearsinsection13(3)(h)isacompendious
provision providing for the disqualification of being a voter or a memberofParliamentinconsequenceoftheElection
Judge's report. This is achieved in the 1972 Constitution by a drafting device that involves sections 66, 67, 68, 69 and70.
In fact it would be observed that section 68 which is relevant for our purposedealsonlywiththequalificationofan
elector. The disqualification relating to a member is contained in section 70. All these provisions havetobereadasa
composite whole since they determine the qualification and disqualification of being an elector or a member oftheNational
State Assembly. Section 68 (d) (iii) makes the report of the Election Judge operative as a disqualification both in thecase
of an elector and also for membership in the National State Assembly. The different arrangement of the sectionsnecessitated
the variation in the draftingbut this variation does not constitute a departure from the earlier legal position.
Next, when we examine the provisions of section 82 of the (Parliamentary Elections) Order in Council, wefindthatinthe
analysis he made, Mr. Choksy has chosen to ignore the effect of paragraph (a) andsoughttohighlighttheprovisionsof
paragraph (b) as if it were an independent provision capable of standing by itself. This is clearlyerroneous.Theprimary
provision is paragraph (a) and it is wholly directed to an inquiry and findingtheculpabilityofthecandidatehimself
directly or through his agent or through someone else with his knowledge and consent.
Where the answer is in the affirmative, all the necessary information has to befurnished,andthisisprovidedforin
paragraph (b). Paragraph (b) is clearly consequential to paragraph (a). In the nature of things it is notpossibleforthe
candidate's name to appear in paragraph (b) as an actual offender when we are dealing with the caseofacorruptpractice
being done by someone else and not by the candidate himself. The candidate is involved because he has hadknowledgeorhad
given his consent. What Mr. Choksy has sought to do is to placethissectionasitwereupsidedownandconstrueit
starting, from the bottom.
Mr. Choksy's other submission that this is a case of vicarious liability is not justified by the languageoftheenactment
or by the general principles of vicarious liability. A candidate who is made liable for an act done withtheknowledgeand
consent of the candidate could in certain circumstances be in the position of an accessory to the act andevenaprincipal
in the first or second degree if we were to use the parlance in criminal law. For he can beaninstigatororanabettor.
This is a far cry from the examples given by Mr. Choksy of cases of civil liability where a master ismadeliableforthe
delict of a servant for acts committed in the course of employment.
Again, I think, Mr. Senanayake dealt effectively with Mr. Choksy's argument based on principles of interpretationwhichwas
termed "the principle against doubtful penalisation". I agree with Mr. Senanayakethattheseprovisionsareintendedin
essence to define the qualifications and disqualifications for voting and for being a member of the legislature andalsoto
ensure the purity of elections and the electoral process.Whereacorruptorillegalpracticeiscommittedwiththe
knowledge and consent of the candidate - and as I have said earlier, the candidate can be an abettor.orinstigator-the
old-law very wisely regarded the candidate himself as being taintedandwasmadetosufferthesameconsequencesand
disqualification as the person who had actually committed the act. This is in consonancewiththeordinaryprinciplesof
criminal liability where art abettor is made liable for the same punishment as the principal in the first degree. Icansee
no good reason why this should be otherwise. Mr. Senanayake stated somewhat picturesquely thatitisabsolutelynecessary
that such a person infected with the virtues of corruption should be quarantined and kept out of the electoralsceneifwe
are concerned with maintaining the purity of the electoral process. Far from acceding to Mr. Choksy's submission onwhathe
thought was the proper rule of interpretation, I should think thatonthisbackgroundthereshouldhavebeenaclear
intention on the part of the draftsman expressed in unambiguous language indicating a change in the law if such animportant
and significant departure had been intended by the law. In this regard we had only some speculative submissions madebyMr.
Choksy which are highly questionable and not supported by an iota of material.
Mr. Choksy also suggested that the variation he attributed to the provisions after 1972 may have been duetoourdraftsman
being influenced by the corresponding provisions on the Indian law. He referredustotheIndianRepresentationofthe
Peoples Act 1951. The Indian provisions are differently worded from our law, and from the excerptssubmittedtousitis
difficult to say what is the precise legal position under that law. However, even assuming that the Indian lawisdifferent
and that it draws a distinction for the purpose of disqualification between the person whoactuallycommittedthecorrupt
practice and the candidate with whose knowledge and consent it was done, I do notthinkthattheIndianlawcouldhave
influenced our draftsman or that it could in any event provide a model for us. While theIndianlawmaybeadequatefor
India, I find that the Indian lave does not provide as a matter of course for the disqualification ofeventhepersonwho
actually commits the corrupt practice, but leaves it to the discretion of the President whether or not to disqualify himand
for what period-section 8A. This has never been our law or been at any time in the contemplationofourdraftsmanandis
wholly unacceptable to our concept of elections.
Mr. Choksy also referred to the corresponding provisions in the U.K., namely, the Representations ofPeoplesAct1983.In
this connection I may first mention that in the U.K. legislation, unlike the Indian law, both the actual personwhocommits
the corrupt or illegal practice and the candidate, if it is done with his knowledge and consent, are bothdisqualifiedfrom
voting or being elected and this has been done in the clearest terms. This admittedly has been our own positionuntil1972.
Mr. Choksy sought to contrast the explicitness of the U.K. legislation with our post 1972 -provisions. Undoubtedlydifferent
techniques of drafting have been adopted in the two cases, but I think that the identical result is achieved inbothcases.
In the U.K. the language used is as follows: -
"158 (2) (a) If it is reported that a corrupt practice otherthantreatingorundueinfluencewascommittedwiththe
knowledge and consent of a candidate, he shall betreatedashavingbeenreportedpersonallyguiltyofthatcorrupt
The technique of our draftsman is different. Under our law when a person is convictedbyacriminalcourtofacorrupt
practice he is declared to be disqualified from being a voter or member of Parliament - vide section 58B(3).Thensection
82D (2) (b) (i) states that where there is no conviction by' a criminal court but an Election Judge inhisreportmakesa
finding of the commission of a corrupt practice by any person, "that person shall be subject to the same incapacitiesasif
at the date of the said report he had been convicted of that practice."
Here we find a second category of persons not formally found guilty by a criminal court equated to the firstcategory.Next
we have a third category. Section 82D (2) (b) (ii) states:
"Where the report referred to in paragraph (a) is to the effect that such corrupt or illegal practice was committed withthe
knowledge and consent of a person who was a candidate at an election or by his agent, that person shallbesubjecttothe
same incapacities as aforesaid."
Here it would be observed that the drafting technique is to equate the third category to the second category andthesecond
category to the first category and bring about an equalising of the three unequal categories so as to visitallthreewith
the same consequences and disability. While the U.K. drafting may be more explicit, it is less elegant thanoursandasI
said earlier, those examples reveal different techniques of the draftsman skills in seeking to achieve the same object.
Incidentally Mr. Aziz, Deputy Solicitor-General, who appeared before this court in the Reference contended stronglyforthe
view that our law is identical with the U.K. law, but we sawtheAddl.Solicitor-Generalnowappearingbeforeus,for
reasons which we cannot fathom, seeking to put forward a diametrically opposite view and disowning theearliersubmissions.
In this connection Mr. Senanayaka rightly drew our attention to the provisions ofsection107ofParliamentaryElections
Act, No. 1 of 1981, where the identical language used in Ceylon (Constitution) Order .in Council is used. If therehadbeen
a variation of the position after 1972, such a provision could riot have been constitutionally enacted in the manneritwas
done and it may be noted that Act No. 1 of 1981 had had thesanctionofbothParliamentandthelawofficersofthe
Government. An indication such as this gives the clearest proofthatthelawhadremainedunchangedandsupportsthe
reasoning set out in this judgment.
Accordingly I am of the view that even assuming thatthematterisgovernedbytheprovisionsofthe1972or1978
Constitution, the relevant provisions disqualifythe1strespondentfrombeingeitheranelectorormemberofthe
Legislature. I am also of the view that the view expressed on this matter in Reference No. 1/85 cannot besustainedandit
is our decision in this case that that should govern the Election Judge.
In view of this ruling the appeal must succeed and it is unnecessarytoconsiderthealternativegroundarguedbyMr.