Legal Services and Laws of Sri Lanka
SLR - 2000 Vol.2, Page No - 79
COURT OF APPEAL.
DE. SILVA. J.
10TH DECEMBER, 1999.
Constitution, Articles 66(d), 89,90,91(1)(e),101(1)(c),171-MemberofParliament-ContractswithGovernment
Institutions and Public Corporations - Is hedisqualified-RighttoholdofficeasaMemberofParliament-Isthe
appointment void -DonoughmoreConstitution-SoulburyConstitution-Article13(3)(c)-1972ConstitutionArticles12(1),
S.70(1)(d) S. 73(f) - Ceylon (Parliamentary Elections) Order in Council 1946, S. 77(e) - Act, No. 44 of 1980 -Act, No.1of
1981 - Delay - Continuing offence.
The Petitioner a Member of Parliament, complained that the I,' Respondent who is also a Member of Parliament, nominatedfrom
the National List, has entered into various contracts with Government institutions - as a partner and aDirectortosupply
Dental Equipment and therefore is disqualified under Article 91(1)(e) of the Constitution, and sought a declaration thatthe
1st Respondent has no right to hold office as a Member of Parliament (M.P.) and that his appointment is void.
It is the position of the Petitioner that the 1stRespondentwhilstholdingtheofficeofaM.P.iscarryingona
partnership business under the name and style of M/s Senaratne Dental Suppliers engaged inthebusinessofimportingand
distributing dental equipment and material.
It was contended by the 1st Respondent that in any event as there is no law prohibiting a M.P. from enteringintocontracts
with any Government institution, there was no possibility of taking action against the1stRespondentinrespectofthe
(1) Parliament has not prescribed the law necessary under Article 91(1)(e) that will provide for the disqualification of a
person to be elected
as a M.P. Therefore Ceylon (Parliamentary Elections) Order in Council 1946 will continue to operate subject to - Act,44of
1980 and Act, No. 1 of 1981. It is kept alive by Article 101(2) of the 1978 Constitution.
(2) Once the Ceylon (Parliamentary Elections) Order in Council 1946 continues tooperatethenonehastoapplySection
13(3)(c) of the 'Soulbury Constitution' for the purpose of considering any disqualification by reason of contract.
(3) The reason being that section 77 of the Ceylon (Parliamentary Elections) Order in Council 1946,referstothegrounds
for the avoidance of Elections, more specifically section 77(e) gives thedisqualificationsforelectionasoneofthe
(4) In these circumstances section 13(3) of the Soulbury Constitutionshouldbeconsideredforanydisqualificationby
reason of any contract.
Per Yapa, J.
"Decision in the case of Dahanayake vs De Silva(1) is part of the law in force."
(5) The position regarding contracts undertheSoulburyConstitutionislaiddowninsection13(3)(c)ofthesaid
Per Yapa, J.
"From an examination of the provisions of section 13(3)(c) it is seen that a member could be held disqualified atthepoint
of election (by an election Petition) and thereafter (by quo warranto) from sitting and votingifhehasenteredintoa
prohibited contract after his election"
(6) The Petitioner who is a M.P. has locus stands to file the application.
(7) In respect of the question of delay, it is to be observed that there can be no delay for thereasonthatthemischief
complained of is a continuous one. The 1st Respondents continuance in office affords fresh cause of action each daytillhe
(8) The 1st Respondent cannot function as a M.P. and his office as M.P. would became vacant in terms of Article 66(d) ofthe
APPLICATION for Writs in the nature of Quo Warranto/Mandamus
Cases referred to
1. Dahanayake vs De Silva ( 1978-79-80) 1 Sri. L.R. 41
2. Dahanayake vs Pieris 45 NLR 385
3. Chandler Sons vs D.P.P. (1964) AC 763
4. Wakcer Sons & Co. UK Ltd., vs Gunatilake ( 1978-79-80) 1 Sri. L.R. 231
5. Somasundran vs Kotelawala 40 NLR 205
6. Coorey vs De Zoysa 41 NLR 121
7. Kulasingham vs Thambiyah 49 NLR 505
8. Thambiyah vs Kulasingham 50 NLR 25
9. Gunasekera vs Wijesinghe 65 NLR 303
10. Martin Perera vs Madadombe 73 NLR 25
11. Nesamony vs Varghese (52) Tr. C66
12. Sans Sampat vs Jalgaon Borough Municipality 1 LR (1958) Born 113,566
Wijedasa Rajapakse with S. Wimalasekera for Petitioner.
K.N. Choksy AC with Daya Pelpola for 1st and 2nd Respondents.
Saleem Marsoof P.C. Additional Solicitor General for 3-5 Respondents.
Cur. adv. vult.
March 31, 2000.
HECTOR YAPA, J.
The petitioner is a Member of Parliament. He contested as a candidate at the General Elections held on 16th August 1994.for
the Badulla District Electorate from the People's Alliance and was elected as a Member of Parliament. The 1strespondentto
this application is also a Member of Parliament. He was nominated as a Member of Parliament from thenationallistbythe
United National Party with effect from 18th August 1994 as referred to in the gazette notification marked P1. Thepetitioner
in this application has alleged that the 1st respondent who is a Member of Parliamenthasenteredintovariouscontracts
with Government Institutions to supply dental equipment and material. Further he (1st respondent) hastenderedforseveral
contracts and some of them have been awarded to him. He has entered into these contracts as a partner of Senaratne Dental
Supplies and as a director of a company called Senaratne Dental Supplies (Private) Ltd. Therefore petitionerhasstatedin
his petition that the 1st respondent is guilty of having suchinterestinsuchcontractsenteredintowiththeState
Institutions or Public Corporations as contemplated by Article 91 (1) (e) of the Constitution of the DemocraticRepublicof
Sri Lanka 1978. In the circumstances the 1st respondent is disqualified in terms of the said Articlei.e.91(1)(e)ofthe
Constitution to sit and vote in Parliament and further that the 1st respondents office as a Member of Parliamenthasbecome
vacant in termsofArticle66(d)oftheConstitutionwitheffectfrom9thNovember1995.Inviewofthesaid
disqualification of the 1st respondent, the petitioner moved this Court for a declaration thatthe1strespondenthasno
right to hold office as a member of Parliament and that his appointment is void. Further the petitioner has moved for awrit
of Mandamus on the 3rd respondent, erroneously referredtoasthe2ndrespondentintheprayer,directinghim(3rd
respondent) to prevent the 1st respondent from functioning, sitting and voting as a Member of Parliament.
It is stated by the petitioner that the 1st respondent while holding the office of a Member of Parliament iscarryingona
partnership business under the name and style of M/s Senaratne Dental Supplies engagedinthebusinessofimportingand
distributing dental equipment and material. It would appear from the document marked P37 dated 21. 06.1991andP38dated
09. 03. 1992 that the partnership had commenced its business on 31. 07. 1985. Further by documents markedP2-P10,P13-P
17, P25 and P26 annexed to this application, it would show that the said partnership business had not been dissolved buthad
continued to do business up to 25. 08. 1998. In addition, thepetitionerhasstatedthatthe1strespondenthasalso
incorporated a company called Senaratne Dental Supplies (Private) Limited, under the provisions of the Companies Act andhas
registered the company on 13. 12. 1995, (vide P33) which is engaged in the import and distribution ofdentalequipmentand
In support the petitioner has produced the following documents i.e.theMemorandumofAssociationandtheArticlesof
Association of the said company SenaratneDentalSupplies(Private)Limiteddated11.12.1995markedP30andP31
respectively, where the three subscribers are N.H.R.H.Senaratnethe1Strespondent,SujathaSenaratneandN.H.M.P.
Senaratne, the certificate for registration of office dated 11. 12. 1995 marked P32,theCompanyRegistrationCertificate
dated 28. 07. 1998 marked P33, form 48 under the Company's Act dated 11. 12. 1995, 10. 06. 1996 and 24. 01. 1998 markedP34,
P35 and P36 respectively which give the particulars of the Directors and the Secretaries of the Company.
The petitioner alleges that the 1st respondent while holding the officeoftheMemberofParliament,hasenteredinto
various contracts with the Government Institutions to supply dental equipmentandmaterial.Itisthepositionofthe
petitioner that lot, respondent's partnership business M/s Senaratne DentalSuppliesandhiscompanySenaratneDental
Supplies (Pvt) Ltd. have entered into these contracts. In proof the petitioner has marked and produced severaldocumentsto
show that the 1st respondent's partnership and his company have entered into eightcontractswithGovernmentInstitutions
and briefly they are as follows:
The 1st respondent's partnership has entered into a contract dated 16. 11. 1995 on behalf of M/s Suz-Dent (India) Pvt. Ltd.
with the Ministry of Health, Highways and Social Services to supply 25 Nos. dental units with Hydraulic Chair and Microwith
certain other accessories. The contract document has been marked P5 and certain supporting documents leading tothesigning
of the said contract have been produced. These documents are the letter dated 09. 11. 1995 markedP2,writtenbythe1st
respondent as the Managing Director of his partnership to the Ministry of Health relating to the award ofthesaidtender,
the proforma invoice bearing No. SDS/321 /95
dated 09. 11. 1995 marked P3, and the letter dated 01. 11. 1995 marked P4, written by theMinistryofHealthtothe1st
respondent's partnership i.e. Senaratne Dental Supplies, intimating the approval of the tender.
ii. 1st respondent's partnership i.e. Senaratne Dental Supplies, as theregisteredsupplierof"OsuSala"hassupplied
dental products to the Sri Lanka Air Force. In support the petitioner has produced the followingdocumentswhicharetrue
copies of the originals i.e. a letter dated 06. 12. 1995 marked P6, written by the 1st respondent as Managing Partner tothe
Manager "Osu Sala" giving the quotations for the supply of dental products. Order form dated 28.12.1995 markedP7,madeby
Sri Lanka Air Force to "Osu Sala"forthepurposeofpurchasingdentalproductsfrom"OsuSala".1strespondent's
partnership Senaratne Dental Supplies in turn has sold and delivered the said items referred to in P7, to "Osu Sala" (to.be
supplied to Air Force) on invoices bearing Nos. 5803, 5804, 5805 dated 02.01.1996 marked P8, P9 and P10respectively.Two
credit sale invoices dated 04. 01. 1996 in respect of the said items issued by "Osu Sala" to the SriLankaAirForcehave
been marked as P 11 and P 12 respectively.
iii. 1st respondent's partnership Senaratne Dental Supplies has entered into several contracts with the SriLankaNavyfor
the supply of dental material and it continues as a supplier to the Sri Lanka Navy. In support thepetitionerhasproduced
the following documents. A true copy of the invoice No. 6436 dated 13. 09. 1996 issued by the1strespondent'spartnership
for the supply of certain items to the Sri Lanka Navy marked P 13,
iv. A true copy of invoice No. 6449 dated 19. 11. 1996 issued by the 1st respondent's partnership for the supply of certain
items to the Sri Lanka Navy marked P14,
v. A true copy of invoice No. 6472 dated 30. 05. 1997 issued by the 1st respondent's partnership for thesupplyofcertain
items to the Sri Lanka Navy marked P15,
vi. A true copy of invoice No. 6473 dated 30. 05. 1997 issued by the 1st respondent's partnership for the supplyofcertain
items to the Sri Lanka Navy marked P16,
vii. With regard to a tender for the supply of drugs, the 1st respondent's partnership i.e.SenaratneDentalSupplies,by
letter dated 05. 01. 1998 marked P 17, has written to the Chairman, Tender Board Sri Lanka Navy, quoting certainpricesand
attaching to it the literature documents marked P 18 and P 19. Thereafter Sri Lanka Navy by letter dated 19. 05. 1998marked
P25, has requested M/s Senaratne Dental Supplies for the delivery of items quoted in P17. Accordingly byinvoices(delivery
orders) bearing Nos. 2702, 2703, 2705, 2706, 2707 dated 24. 03. 1998 marked P20, P21, P22, P23andP241Strespondent's
Company i.e. Senaratne Dental Supplies (Pvt) Ltd. has supplied the said items to the Sri Lanka Navy.
viii. The Sri Lanka Navy by letter dated 25. 08. 1998 marked P26, with the annexure marked P27, has written to M/sSenaratne
Dental Supplies, i.e. the 1st respondent's partnership business, that the quotation submitted bySenaratneDentalSupplies
has been accepted by the Sri Lanka Navy Department tender board and therefore has requestedforthesupplyoftheitems
referred to in P26. Thereafter by invoice No. 2407 dated 18. 09. 1998 marked P28, 1Strespondent'sCompanyi.e.Senaratne
Dental Supplies (Pvt) Ltd. has supplied the said items.
It would appear therefore that the 1st respondent's partnership business and his company have entered into eight contracts
with the Government Institutions such as the Ministry of Health, High ways and Social Services, Osu Sala, Sri Lanka Air
Force and the Sri Lanka Navy. Further 1st
respondent's partnership and his company have entered into these contracts while the 1st respondent continues to remain asa
Member of Parliament. It is to be observed that the contracts referred to in P2 to P 10, P 13 to P 17, P25 and P26 havebeen
entered into with M/s Senaratne Dental Supplies, the partnership business ofthe1strespondentandtheyarecontracts
entered into directly with the State Institutions. Further contracts referred to in documents marked P2 toP5andP6have
been entered into on a date prior to the incorporation and registration of the18trespondent'scompanySenaratneDental
Supplies (Pvt.) Ltd. Another observation to be made in respect of the document marked P2 is that, it has been signedbythe
1st respondent as Managing Director, and in the case of documents marked P3 and P6, these two documents have beensignedby
the 1st respondent as Managing Partner. In the documents marked P2 andP3the1strespondenthasusedtheabbreviated
designation M.P. which stands for Member of Parliament. It is also seen from the statement made tothepolicebythe1st
respondent on 27. 03. 1996 marked P29, he has admitted the fact that he is a supplier of dentalequipmentandmaterialto
Government Institutions and has so registered himself as a supplier to such Government Institutions.
In the objections filed by the 1st respondent, he hassimplydeniedtheseveralavermentsinthepetitionwherethe
contracts entered into by the 1st respondent on behalf of his partnership business M/sSenaratneDentalSupplies,andon
behalf of his Company Senaratne Dental Supplies (Private) Ltd. are mentioned. It is clear from the documentsmarkedbythe
petitioner in connection with his partnership business and his company, that they arereallyfamilyconcernsofthe1st
respondent which are being managed by him.Thereforefromaclosescrutinyoftherelateddocumentsmarkedbythe
petitioner, it is pretty obvious that the 1st respondent has entered into various contracts with the GovernmentInstitutions
while being a Member of Parliament. Some contracts were entered into in the name of M/s Senaratne.
Dental Supplies (1st respondent's partnership) and some contracts in the name of Senaratne Dental Supplies(Pvt)Ltd.(1st
respondent's Private Company). Perhaps it may be due to this reason that at the hearingofthisapplication,thelearned
Senior Counsel for the 1st respondent did not seriously contest the submission of learned Counsel forthepetitioner,that
the 1st respondent held various contracts with the Government Departments and Institutions and has been doingbusinesswith
The main point that was very strenuously argued by Mr. Choksy, learned Senior Counsel for the 1st respondent was theabsence
of any law prohibiting. a Member of Parliament from entering into contracts with any Government Institutions,andtherefore
there was no possibility of taking any action against the1strespondentinrespectoftheallegedcontracts.Before
considering this argument of Mr. Choksy, it is necessary to keep in mind the following salient features. ThatArticle91(1)
(e) of the 1978 Constitution prohibits a person from being elected as aMemberofParliamentorsittingandvotingin
Parliament, if he has entered into any prohibited types ofcontracts.Thisisveryclearlyprovidedforinthe1978
Constitution. The position was the same under the 1972 Constitution in view of Section 70(1)(d).Inthe1978Constitution
Article 91(1) (e) provides as follows:
91(1) No person shall be qualified to be elected as a Member of Parliament or sit and vote in Parliament:
(e) if he has any such interest in any such contract made by or on behalf of the State or a public corporation asParliament
shall by law prescribe
Therefore it is to be observed that unlike in the case of the Donoughmore Constitution and theSoulburyConstitutionwhere
there were self contained disqualifications in regard to contracts with theStateorStateInstitutions,1972and1978
Constitutions required the legislature to specify by law enacted by the National State Assembly or by Parliament, to
lay down the prohibited types of contracts and the prohibited interests in such contracts. But inboththeseConstitutions
i.e. 1972 and 1978, it is very clearly laid down that no person shall be qualified to be elected as aMemberofParliament
(National State Assembly in the case of 1972 Constitution) or to sit and vote in Parliament if he has anysuchinterestin
any such contract made by or on behalf of the State or a Public Corporation as Parliament shall by law prescribe. Howeverit
is common knowledge that neither the National State Assembly nor the Parliament passed the necessary law togiveeffectto
the disqualification referred to above. Further it is also clear that the necessary law had tobepassedbytheNational
State Assembly in terms of the provisions of Section 73(f) in the case of the 1972 Constitution and byParliamentinterms
of the provisions of Article 101(1) (i) in this case of the 1978 Constitution.
The argument of learned Senior Counsel for the 1st respondent is that, the SoulburyConstitutionwasrepealedbySection
12(1) read with schedule A of the 1972 Constitution.The1972ConstitutionwasrepealedbyArticle171ofthe1978
Constitution. Further Part ii and Part iii of the Ceylon (Parliamentary Elections) Order in Council, 1946, wererepealedby
the Registration of Electors Act, No. 44 of 1980 (vide Section 27(1)) and Part i and Parts iv to vi (both inclusive)ofthe
Ceylon (Parliamentary Elections) Order in Council, 1946, were repealed by Parliamentary Elections Act, No. Iof1981(vide
Section 130). Therefore learned Senior Counsel contended that in view of the repeal of the SoulburyConstitution,the1972
Constitution and the Ceylon (Parliamentary Elections) Order in Council,1946,thereisnolawapplicable,whichwould
prohibit a member from entering into contracts at the time of election or at the time of sitting andvotinginParliament.
In other words it was Mr. Choksy's submission that today a Member of Parliament cannot be disqualified either at the timeof
election by means of an election petition or thereafter from sitting and voting by means of a writ ofquowarrantoonthe
ground of having any interest
In any such contract with the State or State Institutions. First situation Counsel submitted is duetotherepealofthe
Ceylon (Parliamentary Elections) Order in Council, 1946, and the second situation is due tothefailureofParliamentto
pass the necessary law under Article 91 (1) (e). Learned Counsel even went to the extent of submitting thatthepredicament
is such that the relevance and applicability of earlierdecisionsonthesubjectandmoreparticularlythecaseof.
Dahanayake vs. De Silva(1), will require careful consideration and scrutiny in the present context.
However, before considering this argument of learned Senior Counsel, it is appropriate to examine themannerinwhichthe
Supreme Court approached a similar argument raised by Counsel under the 1972 Constitution in the case ofDahanayakevs.De
Silva referred to above. In that case the Supreme Court had to consider whether a contract betweenaMemberofParliament
(at the time of Election) and a State Corporation entailed any disqualification in terms ofsection70(1)(d)ofthe1972
Constitution. As observed above, even under the 1972 Constitution, the National State Assembly had failed to specifybylaw
the disqualifications contemplated by Section 70(1) (d). In the case of Dahanayake vs De Silva (supra)themainissuewas
whether there was any law applicable even though the National State Assembly had admittedly failed to specifybylaw"such
interest" in any "such contract" for the purpose of disqualifications contemplated by Section 70(1)(d). In thepresentcase
also we are faced with a similar issue. Therefore in my view the following passage in thejudgmentofSamarakoonC.J.in
Dahanayake us De Silva (supra) is not only illuminative but would provide the necessarybackgroundfromwhichoneshould
approach the arguments advanced by Counsel. Samarakoon, C.J. in the course of his judgment at 49 stated as follows:
"It is an admitted fact that the National State Assembly did not, during the whole of the period that it was in existence,
specify by law "such interest" in any "such contract" for the
purpose of the disqualification contemplated by Section 70(1)(d). The National State Assembly was empoweredtodothisby
the provisions of Section 73(f) but chose not to do so. Therefore, Counselcontend,thequestionofdisqualificationby
reason of contract does not arise for decision. It is as simple as that. A provision such as the one in Section 70(1) (d)is
one that is enacted for "securing the Freedom and Independence of Parliament" (Vide 22Geo.iiic.45of1782)andto
secure" the independence of members of the Legislature and their freedom from any conflict between their duty tothepublic
and their private interests" (per de Kretser J. in Dahanayake us.Pieris(2)at394.)ThattheNationalStateAssembly
deliberately left wide open the doors of corruption for its members is not a proposition we can lightlyentertain.Wehave
had a healthy tradition in this regard anditisunthinkablethatanyfundamentaldeparturefromthistraditionof
maintaining honesty and purity in public life has been made in the 1972 Constitution. By1972numerousStateCorporations
had come into existence regulating and servicing wide areas of public life. Since their activities touched the livesofthe
people at many points, sometimes even bringingaboutcontractualrelationsinrespectoftheirordinarydaytoday
activities, there was undoubtedly a need for a clear-cut decision as to what contracts and what interestsshouldorshould
not constitute a disqualification for candidates to Parliament. If there was any intention to do awaywiththisparticular
disqualification, we would not have expected to find a provision like Section70(1)(d)incorporatedintheConstitution.
This Section, far from doing away with such a disqualification, appears to have added to its ambit and now contains thetwin
concepts of State and Corporation, where previously only one term "Crown" existed. What appears tohavebeenlefttothe
Legislature, considering the wider context of State regulation now in existence was the duty to demarcatethelimitbeyond
which such contractual relations should constitute a disqualification for membership in theHouse.Oversevenyearshave
passed, and two successive Parliaments have still
not addressed their minds to this matter. It is against this background that we have to consider the arguments as towhether
the draftsman of the Constitution left a vacuum in this respect or whether the transitional provisions containedinSection
75 are adequate to take charge of this situation until such time as Parliament decidestolaydownafreshthenecessary
Mr. Choksy submitted that Article 91(1) (e) of the 1978 Constitution covers both points of time namely the timeofelection
and sitting and voting. However he contended that this Article does not incorporate orkeepalivetheprovisionsofthe
Ceylon (Parliamentary Elections) Order in Council, 1946, or Section 13(3)(c) of the SoulburyConstitutionuntilsuchtime
Parliament passed the necessary law. Learned Counsel also submitted that Ceylon (Parliamentary Elections) orderinCouncil,
1946, is retained only in Article 101 which deals with the point of time of an election and therefore there isnostatutory
provision keeping alive the Ceylon (Parliamentary Elections) Order in Council, 1946, after the point of time of theelection
and making it applicable to the subsequent period of sitting and voting in Parliament. Mr. Choksy further submittedthatif
the framers of the Constitution intended or desired they could have incorporated inArticle91(1)(e)itselftheCeylon
(Parliamentary Elections) Order in Council, 1946, as temporary measure until Parliament passed the necessary law, whichthey
have failed to do. The only provision of the 1978 Constitution which keeps alive the Ceylon (ParliamentaryElections)Order
in Council, 1946, is Article 101 and the said Article deals with two specific matters namelyRegistrationofelectorsand
Election of Members of Parliament. As referred to in sub Article (a) to (d) of Article 101(1), it deals with thepreparation
of the Registers of Electors and sub Article (e) to (i) of the said Article deals with theconductofelections,election
petitions and such other matters as are necessary or incidental to the election of Members of Parliament.Thereforelearned
Counsel submitted that Article 101 in no way applies to the post election period of sitting and
voting in Parliament. Further he contended that the marginal note and the wording of the Article and its contents allmake
this clear. According to Mr. Choksy "such matters" as contained in Article 101(1) isclearlyareferencetothematters
covered by Article 101(1) only and the Parliament passed the necessary laws to provide for such matters when itenactedthe
Registration of Electors Act, No. 44 of 1980 and the Parliamentary Elections Act, No. 1 of 1981.
With regard to this submission of Mr. Choksy, it would appear that to place such a restriction on theoperationofArticle
101(1) would be to do violence to the intention of the framers of the Constitution., As stated abovethenecessarylawto
cover both points of time, namely, at the time of election or at the time of sitting and voting have to be made intermsof
Article 101(1) and more specifically in terms of Article 101(1) (i). This was the view expressed by the Supreme Court inthe
case of Dahanayake vs. De Silva (supra) in relation to the 1972 Constitution, where it was stated very clearlythatSection
73(f) of the 1972 Constitution wastheempoweringprovisiontocreatethelawforthepurposeofdisqualification
contemplated by Section 70(1) (d). It should be noted that sitting and voting is a necessaryorincidentalconsequenceto
the election of members to the National State Assembly or to the Parliament. In addition in that case, the argumentadvanced
by Counsel to place a restriction with regard to the operation ofSection73toproceduralmattersasopposedtothe
creation of necessary substantive law was rejected. The Court in that case accepted the position that twooftheitemsin
respect of which laws can be made by the National State Assembly was section 73(e) the grounds foravoidingelections,and
section 73(f) such other matters as are necessary or incidental to the election of members to theNationalStateAssembly:
Provided, however, that a law made under this section shall not addtothedisqualificationsenumeratedinSection70.
Therefore on the strength of this reasoning by the Supreme Court, we are of the view that it would not becorrecttoplace
the restriction as suggested by Mr. Choksy on Article 101(1) namely that it deals
only with the point of time of the election and not applicable to the subsequent period of sitting and voting inparliament.
As held by the Supreme Court in the case of Dahanayake us. De Silva, (supra) that the National State Assembly hadthepower
to pass substantive laws on certain matters in terms of Section 73(e) and (fl, in the same way, weholdthatintermsof
Article 101(1) (i) Parliament still has the power to pass laws necessary in respect ofdisputedelectionsandsuchother
matters as are necessary or incidental to the election of Members of Parliament. But as stated in the proviso,nosuchlaw
shall add to the disqualifications specified in Articles 89 and 91. It is inherent in the provisothattheParliamenthas
the power to pass the necessary laws. In the result it would appear that the framers of theConstitutionhadinmindthe
need to take action to implement the provisions of Article 91(1) (e) in terms of Article 101(1) (i). Thetermnecessaryor
incidental to the election of Members of Parliament is wide enough to empowerParliamenttopassthenecessarylawsas
required by Article 91(1) (e) to cover not only the point of time of an election but the subsequentperiodofsittingand
voting in Parliament. Further it would be seen that Article 101(1) is the empowering provision fortheParliamenttopass
the necessary laws, to implement the provisions of Article 91(1) (e). Learned Additional SolicitorGeneralMr.Marsoofin
the course of his submissions contended that according to Article 101(1) (i) Parliament could make provision withregardto
"the manner of determination of disputed elections and such other matters as' are necessary or incidental to the electionof
Members of Parliament" and the phraseology used in this sub Article would catch up disqualifications that couldariseafter
elections and during the tenure of office of a Member of Parliament. Further he submitted that when aMemberofParliament
is elected his sitting and voting as a Member of Parliament is necessary or incidental to such an election. Therefore inour
view, it would be erroneous to think that the framers of the Constitution having stated in no uncertain terms inArticle91
(1) (e) that no person shall be qualified to be elected as a Member of Parliament or to sit and vote in
Parliament, if he has any such interest in any such contract made by or on behalf of the state or a public corporation, left
a big vacuum to ponder on several years later.
Mr. Choksy made a further submission the effect of which would be to restrict the operation of Article101(1)byreferring
to the marginal note to the said Article which states the "Parliament may make provision in respect of elections."Inother
words Counsel submitted that in view of the marginal note Parliament can only make provision in respect of elections andnot
in respect other matters such as sitting and voting in Parliament. On this matter it should be borne inmindthatmarginal
notes are not a proper guide in the Interpretation of Statutes. Maxwell on "The Interpretation of Statutes", TwelfthEdition
by P. St. J. Langan at page 9 on marginal notes states thus: `The notes often found printed at the sideofSectionsinan
Act, which purport to summarize the effect of the Sections, have sometimes been used asanaidtoconstruction.Butthe
weight of the authorities is to the effect that they are not parts of the statute and so should not be considered,forthey
are "inserted not by Parliament nor under theauthorityofParliament,butbyirresponsiblepersons."Thisviewwas
confirmed by the House of Lords in the case of Chandler v. D.P.P.(3) where Lord Reid at 789, 790 observed as follows:
"In my view side notes cannot be used as an aid to construction. They are mere catchwords and I have never heard of itbeing
supposed in. recent times that an amendment to alter a side note could be proposed in either House of Parliament. Sidenotes
in the original Bill are inserted by the draftsman. During the passage of the Bill through its various stagesamendmentsto
it or other reasons may make it desirable to alter a side note. In that event I have reason to believethatalterationsis
made by the appropriate officer of the House-no doubt in consultation with the draftsman. So side notes cannot be said tobe
enacted in the same sense as the long title or any part of the body of the Act."
In view of the above reasoning it follows that the Ceylon (Parliamentary Elections) Order in Council, 1946, wouldapplynot
only to the point of time of an election but to the subsequent period of sitting and voting in Parliament.Thisisbecause
the Parliament isempoweredtoprescribebylaw"suchinterest"inany"suchcontract"forthepurposeofthe
disqualification contemplated by Article 91(1) (e), in terms of Article 101(1) (i). Even thoughtheParliamenthaspassed
the necessary laws in respect of some of the matters required under Article 101(1), such as 101(1) sub Article(a)to(h),
Parliament has not provided for some of the matters as required by Article 101(1) (i), more specifically suchothermatters
as are necessary or incidental to the election of Members of Parliament, which would cover the point of time ofanelection
or sitting and voting in Parliament. Therefore when Ceylon (Parliamentary Elections) Order in Council, 1946, was repealedby
Registration of Electors Act, No. 44 of 1980 and Parliamentary Elections Act, No. 1 of 1981, it was repealed for thelimited
purpose and to the extent of the operation of the said two Acts (Act, No. 44 of 1980 and Act, No. 1 of 1981) and nofurther.
This is because the Parliament passed the said two Acts providing for some of the matters required under Article101(1)and
therefore it became necessary to repeal, the Ceylon (Parliamentary Elections) Order in Council, 1946,toavoidaconflict
with the said two Acts. However it must be borne in mind that Ceylon (Parliamentary Elections) Order in Council,1946,will
continue to apply in respect of the matters notprovidedforbyParliament,namely,thelawsthatarenecessaryor
incidental in order to provide for the matters required under Article 101(1) (i) that would cover the pointoftimeofan
election or sitting and voting in Parliament. Therefore until the Parliament performs its obligationofpassingtheother
necessary laws in termsofArticle101(1)(i)tocomplywiththerequirementsofArticle91(1)(c),theCeylon
(Parliamentary Elections) Order in Council, 1946, will continue to operate. Further oneshouldnotforgetthefactthat
Article 101(2) keeping alive the Ceylon (Parliamentary Elections) Order in Council, 1946, is a constitutional
provision. Therefore ordinary legislation such as the Act, No. 44 of 1980 and Act, No. 1 of 1981cannotrepealtheCeylon
(Parliamentary Elections) Order in Council, 1946, wholesale, if there are such other matters likewhatisrequiredtobe
done to comply with Article 91(1) (e) has not been done byParliamentactingintermsofArticle101(1)(i).Inthese
circumstances Ceylon (Parliamentary Elections) Order in Council, 1946, shall continue to operate in respect ofsuchmatters
not provided for by Parliament, and only when all such matters have been provided for by Parliamentthattheoperationof
the Ceylon (Parliamentary Elections) Order in Council, 1946, will cease to operate.
Mr. Choksy sought to argue that the framers of the 1978 Constitution should have retainedCeylon(ParliamentaryElections)
Order in Council, 1946, under Article 91(1)(e) to avoid any problem arising in respect of the law applicable totheMembers
of Parliament at the time of election or sitting and voting in Parliament. But as referred to above what the framersofthe
1978 Constitution have endeavoured, is to make Article 101(1) theempoweringprovisionfortheParliamenttopassthe
necessary laws and retained the Ceylon (Parliamentary Elections) Order in Council, 1946, under that Article (101 (2) )until
such time as the Parliament make provision for "such matters". The term "such matters" in Article 101(2) iswideenoughto
cover the law necessary to decide the question of the qualification of a person to be elected as a MemberofParliamentor
to sit and vote in Parliament. The restriction that Mr. Choksy sought to place on the term "such matters" inArticle101(2)
to mean in respect of elections cannot be accepted in view of the reasoning in the decision of Samarakoon C.J. inDahanayake
us. De Silva (supra).
It is now clear that the Parliament has not prescribed the law necessary under Article 91(1) (e) that willprovideforthe
disqualification of a person to be elected as a Member of Parliament or to sitandvoteinParliament.ThereforeCeylon
(Parliamentary Elections) Order in Council, 1946, will
continue to operate subject to the provisions of Act, No. 44 of 1980 and Act, No. 1 of 1981. Once theCeylon(Parliamentary
Elections) Order in Council, 1946, continue to operate, then, one has to apply Section 13(3)(c) of the Ceylon(Constitution)
Order in Council, 1946, (hereinafterreferredtoastheSoulburyConstitution)forthepurposeofconsideringany
disqualification by reason of contract. The reason being that Section 77 of the Ceylon(ParliamentaryElections)Orderin
Council, 1946, refers to the groundsfortheavoidanceofElectionsandmorespecificallySection77(e)givesthe
disqualification for election as one of the grounds. In these circumstances Section 13(3)(c)oftheSoulburyConstitution
should be considered for any disqualification by reason of any contract. This was the view taken by the Supreme Court inthe
case of Dahanayake vs. De Silva (supra). In that case Samarakoon C.J. considered the scope of Sections 73, 75and12(1)of
the 1972 Constitution and held that Section 75 kept alive the election laws that were inoperationon21stMay1972and
Section 13(3) (c) of the Soulbury Constitution was one such law. The analogous provisions to the said Sectionsofthe1972
Constitution are found in Article 101(1) & (2) and Article 168(1) in the 1978 Constitution. Further the definitionof"law"
in Article 170 of the 1978 Constitution includes an Order in Council.
In the instant case learned Additional Solicitor General Mr. Marsoof, sought to argue that Section 13(3)(c) oftheSoulbury
Constitution is also kept alive in terms of Article 168(1) of the 1978 Constitution. Mr. Choksy counteredthisargumenton
the basis that the reasoning of learned Additional Solicitor General was wrongbecauseSection13(3)(c)oftheSoulbury
Constitution was not in force immediately before the commencement of the 1978 Constitution, since SoulburyConstitutionhad
been repealed by the 1972 Constitution. However, the application of Section 13(3)(c) to thepresentsituationasthelaw
applicable should be considered for the following reason. At the hearing of this application a
submission was made by Mr. Rajapakse, learned Senior Counsel for the petitioner that the decision in the caseofDahanayake
vs. De Silva, (supra) is part of the law now in force. Even though learned Counsel for the petitioner didnotsupportthis
argument with any authority, his contention was that irrespective of whether resort ismadetotheCeylon(Parliamentary
Elections) Order in Council, 1946, or not, Section 13(3)(c) of the Soulbury Constitution has been keptaliveandinforce
now, in view of the decision of the Supreme Court in the case of Dahanayake vs. De Silva (supra). Therefore it wassubmitted
by him that Section 13(3)(c) of the Soulbury Constitution should be considered for the purpose of givingeffecttoArticle
91 (1) (e) of the 1978 Constitution. However this argument has to be considered in relation to Article168(1)ofthe1978
Constitution. In other words the question in issue is whether, Article 168(1) would permit the Supreme Court decision inthe
case of Dahanayake vs. De Silva (supra) to be treated as unwritten laws in force. On this matter the SupremeCourtdecision
in the case of Walker Sons & Co. (U.K.) Ltd. vs. Gunatilake(4) is relevantandimportant.Accordingtothisfivebench
decision of the Supreme Court, the ratio decidendi of judicial decisions belongs to the categoryofunwrittenlawswithin
the meaning of Article 168(l). Therefore it is to be observed that the decision in thecaseofDahanayakevs.DeSilva,
(supra) where it has been held that under the 1972 Constitution,Section13(3)(c)oftheSoulburyConstitutionwasin
operation to be considered for any disqualification by reasonofcontract,shouldnowbeconsideredaspartofthe.
unwritten laws in force for the purpose of Article 168(1) of the 1978 Constitution. Once the highest Court ofthelandhas
interpreted the law it becomes part and parcel of the law in force. Decision in Dahanayake vs. De Silva, being a decisionof
the Supreme Court, this Court is bound by this decision.
The position regarding contracts under the Soulbury Constitution is laid down in Section 13(3)(c) of the said Constitution.
Section 13(3)(c) provides as follows:
"13(3) A person shall be disqualifiedforbeingelectedorappointedasaSenatororamemberofthisHouseof
Representative or for sitting or voting in the Senate or in the House of Representatives
(c) if he, directly or indirectly, by himself or by any person on his behalf or for his use or benefit, holds, or enjoysany
right or benefit under any contract made by or on behalf of the Crown in respect of the GovernmentoftheIslandforthe
furnishing or providing of money to be remitted abroad or of goods or services to be used or employed in the serviceofthe
Crown in the Island "
From an examination of the provisions of Section 13(3)(c) of the Soulbury Constitution it is seenthatamembercouldbe
held disqualified at the point of election (by an election petition) andthereafter(byquowarranto)fromsittingand
voting, if he has entered into a prohibited contract after his election. ThereforeSection13(3)(c)wouldapplytoboth
situations, namely, at the point of election and thereafter at the time ofsittingandvotinginParliament.Underthe
Donoughmore Constitution of 1931 the question of disqualification for membership on account of the existence of anycontract
with the Crown was dealt with in Article 9(d) of the Ceylon (State Council Elections) Order in Council 1931. In thecaseof
Dahanayake vs. Peiris (supra) where the petitioner challenged the election oftherespondentunderArticle9(d)ofthe
Ceylon (State Council Elections) Order in Council,1931,onthegroundthattherespondentheldcontractswiththe
Government of Ceylon and the Court held that the respondent's election was void on that ground. AlsovideSomasundaramvs.
Kotalawala(5), Cooray vs. De Zoysa(6). Under Section 13(3)(c) of the Soulbury Constitution, vide the case of Kulasinghamvs.
Thambiayan(7) and Thambiayah vs. Kulasingham(8). In the present case there is no doubt that thecontractsenteredintoby
the 1st respondent with Government Departments and Institutions are contractsenteredintobythesaidInstitutionsas
agents of the State. Therefore we hold
that the 1st respondent while being a member of Parliament has been a party to several contracts(eightcontracts)entered
into with him (i. e. 1st respondent's partnership and company) by several Government Departments and Institutionsonbehalf
of the State. They are contracts prohibited in terms of Section 13(3) (c) of the Soulbury Constitution. The term "crown"has
now been replaced by the Republic of Sri Lanka and therefore the 1st respondent by holding the contractsreferredtoabove
with the Republic of Sri Lanka has disqualified himself from sitting andvotinginParliament.Inotherwordsthe1st
respondent is disqualified to function or sit and vote as a member of Parliament of Sri Lanka.
In this application question has been raised on behalf of the I'llrespondentwithregardtotheLocusStandiofthe
petitioner to file this application. It is to be observed that quo warranto is a remedy available to call uponapersonto
show by what authority he claims to hold such office. Therefore the basic purpose of the writ istodeterminewhetherthe
holder of a public office is legally entitled to that office. If a person is disqualified by lawtoholdstatutoryoffice
the writ is available to oust him. Vide Gunasekera vs. Wijesingh(9). This writ would not be issued unless the statuteitself
clearly disentitles a person from holding such office. Vide Martin Perera vs. Madadombe(10). In mandamus the petitionermust
show that he is a person aggrieved but this requirement is not necessary in quo warranto, since this writseekstoprevent
an occupier or a usurper of an office of public nature from continuing in that position. Therefore intheseproceedingsit
would appear that any person can challenge the validity of an appointment to a publicofficeirrespectiveofwhetherany
fundamental or other legal right of that person is infringed or not. But the Court mustbesatisfiedthatthepersonso
applying is bona fide in his application and that there is a necessity in public interest to declarejudiciallythatthere
is an usurpation of public office. On the contrary if the applicant concerned is not bona fide in his application, hecannot
claim this remedy. Even though the
applicant may not be an aspirant to the office, nor he has any interestintheappointment,hecanstillapplyasan
ordinary citizen. A member of a municipal body or a mere rate payer can challenge the right of a member to sitasamember
in a municipality. Any person though not personally interested in the results of an election can apply for thewritofquo
warranto. Learned Counsel for the petitioner referred us to the case of Nesamony vs. Varghese(11) citedbyH.M.Seervai,
"Constitutional Law of India" Third Edition Volume ii Page 1218, wheretheIndianSupremeCourthasheldthat:"Ifa
stranger, acting bonafide, can, apply for a writ of quo warranto, a fortiori person having a special interest intheoffice
would be entitled to do so. Accordingly, a member of a legislative assembly had locus standi to apply for quo warranto ifhe
bona fide believed that the speaker held his office without legal authority."
Therefore we hold that the petitioner who is a Member of Parliament clearly has the locus standi to file this application.
It is also alleged on behalf of the 1st respondent that there has been delay in making this applicationbythepetitioner.
In respect of the question of delay, it is to be observed that, there can be no delay in this case for thereasonthatthe
mischief complained of is a continuing one. In other words the 1st respondent's continuance in office affords fresh causeof
action each day till he is removed. Therefore it would appear that there is no question of delayasfarasthiswritis
concerned. On this matter learned Counsel for the petitioner referred us to the caseofSanuSampatvs.JalgaonBorough
Municipality(12) cited in V. G. Ramachandran' s Law of Writs Fifth Edition page 798, whereitwasobservedthat"Ifthe
appointment of an officer is illegal every day that he acts in that officeafreshcauseofactionarises therecan,
therefore, be no question of delay in presenting a petition for a writ of quo warranto in which hisveryrighttoactin
such a responsible post has been questioned."
From the material referred to above, it is manifestly clear that Section 13(3)(c) oftheSoulburyConstitutionshouldbe
considered as the law applicable as at present, when considering the disqualification referred toinArticle91(1)(e).
Further it is quite clear that the 1strespondenthasenteredintoseveralprohibitedcontractswiththeGovernment
Departments and Institutions, and therefore he has disqualified himself in termsofArticle91(1)(e)fromsittingand
voting in Parliament. In other words the 1st respondent cannot function as a member of parliament and his office as amember
of Parliament would become vacant in terms of Article 66(d) of the 1978 Constitution.
For the aforesaid reasons we make order granting the writ of quo warranto as prayed forbythepetitioner,declaringthe
appointment of the 1st respondent as a member of Parliament void and that he has no right to continue toholdofficeasa
member of Parliament. Therefore by granting awritofmandamusasagainstthe3rdrespondent(SecretaryGeneralof
Parliament) we direct him to take necessary and consequential steps in terms of the law. Further wedeeplyappreciatethe.
assistance given to us by Counsel.
DE SILVA, J. - I agree.
Writs of Quo Warranto and Mandamus issued.