020-SLLR-SLLR-1985-V2-KULARATNE-v.-CHANDRANANDA-DE-SILVA-AND-ANOTHER.pdf
164
Sri Lanka Law Reports
f1985] 2 Sri L.R
KULARATNE
v.
CHANDRANANDA DE SILVA AND ANOTHER
SUPREME COURT.
SHARVANANDA. C.J. COLIN-THOME'. J. AND ATUKORALE, J.
S.C. REF. 1/85.
C.A. APPLICATION No. 112/85JUNE to AND 11. 1985.
Election Law – Article 123 (I) of the Constitution – Person found guilty Of corruptpractice of making false statement when acting as an agent of a candidate at aParliamentary Election and with his knowledge and consent – Is candidate subject todisqualification ? – Articles 88. 89(e) fib) and 90 of the Constitution read with Section82 D (b) (ii) of Ceylon Parliamentary Elections Order in Council – Report of ElectionJudge under Section 82 ol the said Order-in-Council-
A person was found guilty of the corrupi practice of making a false statement of factunder section 58 (1) (d) of the Ceylon (Parliamentary Elections) Order in Council 1946at a Parliamentary Election as agent of a candidate at the said election and with hisknowledge and consent. On the question of the disqualification which ihe candidatehimself Would suffer the Court of Appeal acting under section 123(1) of theConstitution referred the following questions to the Supreme Court for nsdetermination :
In view of the provisions of Articles 88. 89 (e) (in) and 90 of the Constitution, doessection 82D <i>) (ii) of the Ceylon (Parliamentary Elections) Order in Council 1946read with the Fifth Amendment to the Constitution now operate to impose on sucha candidate as is referred to in section 82D (2) (b) (ii) of the said Order in Councilthe disqualification to being an elector at an election of Members of Parliament or ofbeing elected as a Member of Parliament
Where the report made by an Election Judge finds that the corrupt practice ofmaking a false statement of fact under section 58 (1) |cf) of the Ceylon(Parliamentary Elections) Order in Council 1946. had been committed by a personacting as agent' and with the knowledge and consent of a candidate al suchelection, is such candidate subject to the disqualification contained in Article89 (e) (in) of the Constitution ?
sc
Kularatne Chandrananda de Silva
165
Do the words . a report made by a Judge finding him guilty of any corruptpractice . . ” in Article 89 (3) (iiil of the Constitution –
apply only to such a person who is set out in such report as having beenproved himself to have been guilty |as provided in section 82 (b) of the saidOrder in Council) of the corrupt practice of making such false statement offact
OR
apply also to the candidate (though not set out in such report as having beenproved himself to have committed such corrupt practice), whose agent is setOut in such report as having committed such practice with such candidate'sknowledge and consent.
Determination –
The Supreme Court gave its determination on the questions referred as follows .
No.
No.
The words *. a report made by a Judge finding him guilty of any corrupt
practice. …" in Article 89 (e) (iii) of the Constitution apply only to such a personwho is set out in such report as having been proved himself to have been guilty(as provided in section 82 (b) of the said Order in Council) of the corrupt practiceof making such false statement of fact and does nor apply also to the candidate(though not set out in such report as having been proved himself to havecommitted such corrupt practice), whose agent is set out in such report ashaving committed such practice with such candidate's knowledge and consent
The provisions of section 82D (2) (b) (h) and 83D (3) of the Elections Order inCouncil ceased to be law with the coming into existence of the Constitution of 1972.and hence were not existing law’ when the Constitution of 1978 came into operation.Being inconsistent with Article 89 (f?) (ni) of the 1978 Constitution they were notrevived by the Fifth Amendment. The question of petitioner’s disqualification to be anelector has to be decided solely by reference to Article 89 (e) (tu) of the/ 1978Constitution For the reasons set out above this Article does not disqualify the petitionerfrom being an elector in terms of Articles 88 and 89 ol the Constitution
Case referred to :
(1) Hack v. London Provident Building Society [ 1833} 23 Ch. D. 103. 108.REFERENCE by the Court of Appeal to the Supreme Court
K. N Choksy. P.C.. with Mark Fernando. PC.. Oaya Pelpola. D H N. Jayarnaha.Ronald Per era. and Laksbman Per era for the Petitioner.
M S Aziz. D S.G with Ananda Kastunarachchi. S.C. for the 1st and 2nd Respondents
Cur adv vult
166
Sri Lanka Law Repons
(1985) 2 Sri L.R.
July 2.1985.
SHARVANANDA, C.J.
In terms of Article 123(1) of the Constitution, the following questionsrelating to the interpretation of Article 89(e)(iii) of the 1978Constitution have been referred by the Court of Appeal, to this courtfor determination
In view of the provisions of Articles 88, 89 (e) (iii) and 90 of theConstitution, does section 82 D (b) (ii> of the Ceylon(Parliamentary Elections) Order in Council 1946 read with theFifth Amendment to the Constitution now operate to impose onsuch a candidate as is referred to in section 82 D (2) (b) (ii) ofthe said Order in Council the disqualification to being an electorat an election of Members of Parliament or of being elected as aMember of Parliament.
Where the report made by an Election Judge finds that thecorrupt practice of making a false statement of fact undersection 58 (1) (d) of the Ceylon (Parliamentary Elections) Orderin Council 1946, had been committed by a person acting asagent and with the knowledge and consent of a candidate atsuch election, is such candidate subject to the disqualificationcontained in Article 89 (e) (iii) of the Constitution.
Do the words ‘a report made by a Judge finding him
guilty of any corrupt practice"in Article 89 (e) (iii) of the
Constitution –
apply only to such a person who is set out in such report ashaving been proved himself to have been guilty (as provided insection 82 (b) of the said Order in Council) of the corruptapply also to the candidate (though not set out in such reportas having been proved himself to have committed such corruptpractice), whose agent is set out in such report as havingcommitted such practice with such candidate's knowledge andconsent."
The above reference has been made by the Court of Appeal in thecourse of hearing an application for a Writ of Certiorari and Mandamuson the Commissioner of Elections (1 st respondent) and the ReturningOfficer for the Electoral District of Mulkirigala (2nd respondent).
SCKularatne v. Chandrananda de Silva (Sharvananda. C. J )167
The election of the petitioner, Ananda Kularatne, as Member ofParliament for the Electoral District of Mulkirigala at the by-electionheld on 18.5.83 was declared void by the Election Judge. TheElection was challenged on the ground that a corrupt practice, to wit,a false statement of fact in relation to the personal character orconduct of the defeated candidate had been made by one BasilRajapakse, acting as agent of the petitioner or with the knowledge andconsent of the petitioner, in breach of section 58 (1) (d) of the Ceylon(Parliamentary Elections) Order in Council. This determination of theElection Judge was in appeal affirmed by the Supreme Court.
The Election Judge also made a report under section 82 of the saidOrder in Council. This report was published in the Gazette of 1.1.85(P 3). It states that
"In terms of section 82 of the Ceylon (Parliamentary Elections)Order in Council, I do hereby report that in view of my findings in theElection Petition that the 2nd respondent to the said ElectionPetition, Mr, Basil Rajapakse of MedamutSna, Weeraketiya, isproved to have committed a corrupt practice of making andpublishing a false statement affecting the personal character andconduct of the petitioner Nirupama Rajapakse who was a candidatein the said election for the purpose of affecting the return of the saidcandidate, acting as agent and with the knowledge and consent ofthe 1st respondent to the said petition, Mr. Ananda Kularatne *
Consequent to the aforesaid report the respondents claiming to actunder section 82 D (3) read with section 82 (d) (2) (b) (ii) of the saidOrder in Council, deleted the name of the petitioner from the Registerof electors. The petitioner in his application avers that the removalof his name from the Register of electors is in violation of hisconstitutional and civic rights, in particular, the right of franchise andaccordingly seeks –
a Writ of Certiorari to quash the decision of the 1 st and/or 2ndrespondent to remove his name from the Register of electorsand
a Writ of Mandamus to compel the 1st and/or 2nd respondentto restore his name in the Register of electors
' 68Sri Lanka Law Reports11985] 2 SnL.R
Section'82D (2) (£>) (i) reads :
. . where the report referred to in paragraph (a) is to the effectthat a corrupt or illegal practice has been committed by any person,that person shall be subject to the same incapacities as if at the dateof the said report he had been convicted of that practice.'
The crucial question which arises is whether the disqualificationcreated by section 82 D (2) (b) (ii) of the said Order in Council reliedon by the respondents is countenanced by Article 89 (e) (iii) of the(1978) Constitution.
Section 82 D (2) (b) (ii) of the Election, Order-m Councilreads as follows :
"Where the report referred to in paragraph (a') is to the effect thatsuch corrupt… practice was committed with the knowledge andconsent of the person. Who was a candidate at an election or by hisagent, that person shall be subject to the same incapacities asaforesaid."
Section 58(2) spells the incapacities to which a person convicted ofcorrupt practice is subject to, it states
"Every person who is convicted of a corrupt practice shall, byconviction, become incapable for a period of seven years from thedate of his conviction of being registered as an elector or of voting atany election under this Order or of being elected as a Member ofParliament."
Section 4( 1) (f) of the Order in Council provides that –
"no person shall be qualified to have his name entered or retainedin any register of electors in any year if such person js incapacitated' of being registered as an elector by reason of his conviction of acorrupt or illegal practice or by reason of the report of an ElectionJudge in accordance with the said Order,"
Section 1 3(3) (b) of the Ceylon (Constitution) Order in Council1946, Chap. 379 provides that a person shall be disqualified frombeing elected as a Member of the House of Representatives –
"if by reason of his conviction for a corrpt practice or by reason ofthe report of the Election Judge in accordance with the law for thetime being in force relating to the election of Members ofParliament; he is incapable of being registered as an elector or ofbeing elected as a Member of Parliament,'
sc
Kularatne v. Chandrananda cte Silva (Sharvananda, C.J.)
169
Thus in terms of the. 1946 Constitution, read with the(Parliamentary Elections) Order in Council, where a report of anElection Judge states that a candidate himself committed a corruptpractice or such corrupt practice was committed by another personwith the candidate's knowledge and consent or such corrupt practicewas committed by an agent of the candidates, the candidate in all thethree circumstances, stood disqualified for a period of seven yearsfrom being registered on an electer or being elected to Parliament.
The Ceylon (Constitutional) Order in Council, 1946 was supersededby the Constitution of Sri Lanka, 1972. Section 12(1) of thatConstitution provides –
“Unless the National State Assembly otherwise provides, all laws,written and unwritten, in force immediately before thecommencement of the Constitution, except such as are specified inSchedule ‘A’ shall, mutatis mutandis, and except as otherwiseexpressly provided in the Constitution, continue in force.'
(Schedule 'A' referred to in this section includes the "Ceylon(Constitution and Independence) Order-in-Council, 1947 and1947)'
Section 66 of the 1972 Constitution provides –
“Every citizenunless disqualified as hereinafter provided, is
qualified to be an elector at elections to the National StateAssembly."
, Section 68 of the Constitution enumerates the disqualifications tobe an elector. Section 68(d) (lii) states that no person shall bequalified to be an elector at an election of members of the NationalState Assembly if a period of seven years has not elapsedsince
"the last of the dates, if any, being a date after thecommencement of the Constitution of a report made by anElection Judge finding him guilty of any corrupt practice under theCeylon (Parliamentary Elections) Order in Council – 1946 . . "
Section 69 provides that every person who is qualified to be an
elector is qualified to be elected as a Member of the National StateAssembly unless he is disqualified under the provisions of section 70.
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11985] 2 Sn L.R.
Section 70 of the Constitution provides that -"No person shall be qualified to be elected as a Member of the
National State Assembly, inter alia (a) if he becomes subject to any
of the disqualifications in section 68."
From and after the promulgation of the Constitution viz :22.5.1972, it is clear that the question whether a person isdisqualified to be an'elector or to be elected as a Member ofParliament has to be determined exclusively by reference to theprovisions of sections 66 to 70 of the 1972 Constitution and not byreference to the (Parliamentary Elections) Order in Council, 1946.
It is significant that section 68(d) (w) of the 1972 Constitutionemploys words different to the phrase used in section 4(1) (f) of the1946 Election Order-in-Council and section 13(3) (ft) of the Ceylon(Constitution) Order in Council. Prior to the enactment of 1972Constitution a person was disqualified to be an elector or to be electedas a Member of Parliament, inter alia, if he was incapable of beingregistered as a elector or being elected as a Member of the House ofRepresentatives, by reason of the report of an Election Judge inaccordance with the Ceylon (Parliamentary Elections) Order in Council.However the 1972 Constitution altered it to provide that he will be soincapable only if a report of an Elction Judge finds him guilty of anycorrupt practice under the (Parhmentary Electionsj Order-in-Council1946
Section 82 of the Elections Order in Council (1946) mandates theElection Judge to report the names and descriptions of all persons, ifany, who have been proved at the trial to have been guilty of anycorrupt practice.
Section 82D (2) (b) (i) and (ii) of the Elections Order in Councilspells out the penal consequences of being reported to be guilty of anycorrupt practice by the Election Judge – not only the offender shall sufferany incapacity but also the candidate himself if the report was to theeffect such corrupt practice was committed with his knowledge andconsent or by his agent. The candidate suffers this punishment notbecause he had been found guilty of corrupt practice butconsequential to his agent or his supporter, with his knowledge andconsent, having been found guilty of committing the corrupt practice.The candidate has by an express provision of the law, been made tosuffer the incapacity for the fault of his agent or such supporter. Thusby reason of the report of the Election Judge not only the person
SCKutarajne v. Chandrananda da Silva (Sharvananda, C.J.)17 7
reported to be guilty of any corrupt practice by the Election Judge butalso the candidate whose agent he is. or with whose knowledge andconsent he committed it, is rendered incapable for a period of sevenyears from being registered as an elector or of being elected as aMember of Parliament. Section 68(d) (iii) of the 1972 Constitutionreplaced section 82D (e) (b) (i) and (ii) and provided that only theperson found guilty of a corrupt practice is disqualified from being anelector. There is a material difference in the_ language employed in therelevant section of the Elections Order-in-Council and of theConstitution. The framers of the Constitution must have had somepurpose in departing from the language of theElections Order-in-Council. When the legislature, legislating "in parimateria’ and substituting a new provision for those which existed in anearlier statute, changes the language of the enactment, it must betaken to have done so with some intention and motive. When thewords in the later statute differ from those of the earlier statute it mustbe presumed that the legislature intended to alter the law and that thelegislature had a specific purpose in doing so. As Jessel M. Ft., said inHack v. London Provident Building Society (1) at p. 108-
"tt is the duty of the court first of all to find out what the Act ofParliament under consideration means and not to embarass itselfwith previous decisions on former Acts, when considering theconstruction of a plain statute framed in different words from theformer Act."
If the later Act can clearly have only one meaning we ought to giveeffect to it accordingly.
By virtue of Section 12 of the. 1972 Constitution that part of the1946 Elections Order-in-Council which is in conflict or is inconsistentwith the express provision of section 68 of that Constitution cannotsurvive the Constitution and cannot be part of the 'existing law.'
The Constitution of Sri Lanka, 1972, was succeeded by theConstitution of the Democratic Socialist Republic of Sri Lanka 1978.Article 88 of the later Constitution provides that 'every person shall,unless disqualified as hereinafter provided be qualified to be an electorat the election of the President and of the Members of Parliament andto vote at any Referendum.’
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Sri Lanka Law Reports
11985) 2 Sri LR.
Article 89 of the 1978 Constitution sets out the disqualification tobe an elector –
No person shall be qualified to be an elector at an election of thePresident, or of the Members of Parliament or to vote at anyReferendum, if he is subject to the disqualifications, inter alia ; if aperiod of seven years has not elapsed from the last of the dates, ifany being a date after the commencement of the Constitution, of areport made by a Judge finding him guilty of any corrupt practiceunder the Ceylon (Parliamentary Elections) Order in Council, 1946or under any law for the time being relating to the Referendum or tothe election of the President or of Members of Parliament (Art.89 (e) (iii)).
Article 101 of the Constitution provides that –
"Parliament may by law make provision, inter alia for (a) theregistration of electors :
Provided that no such law shall add to the disqualification specifiedin Articles 89 and 91
Article 91 recites the disqualifications for election as a Member ofParliament –
Article 101(2) provides that "until Parliament by law makesprovision for such matters, the Ceylon (Parliamentary Elections)Order in Council. 1946, as amended from time to time, shall,subject to thd provisions of the Constitution, mutatis mutandis,apply."
Article 89 is the governing provision reciting the disqualification tobe an elector. Article 91, is the governing provision specifiying thedisqualification for election as a Member of Parliament.
The Parliamentary Elections Act No. 1 of 1981. which came intooperation on 16th February, 1981, repealed parts I and IV to VI (bothinclusive) of the Ceylon (Parliamentary Elections) Order in Council.1946. Section 4 of the Order-in-Council thus stood repealed. It waspointed out that section 107 of the (Parliamentary Elections) Act No.1 of 1981 re-enacted word to word sections 82 and 82D(2)(b)(ii) ofthe Ceylon (Parliamentary Elections) Order-in-Council 1946 and that interms of this provision, where an Election Judge reports that a corruptpractice was committed by any person with the knowledge and
sc
Kularatne v. Chandrananda de Silva (Sharvananda, C.J.)
173
consent of the candidate or by his agent, the, candidate himself andthat person will become incapable for a period of seven years frombeing registered as an elector or of being elected as a Member ofParliament. Certainly this provision in the Parliamentary Elections ActNo. 1 of 1981, to the extent that it adds to the disqualificationsspecified in Article 89 of the 1978 Constitution, is violative of Article101 of that Constitution. It is not necessary in this case to decide onthe validity of this provision vis-a-vis : the Constitution of 1978, as it iscommon ground that the Parliamentary Elections 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 electorat an election of the Members of Parliament or to be elected as aMember of Parliament has to be determined according to provisions ofArticles 88, 89(e)(iii) and 90 of the Constitution read with the FifthAmendment to the Constitution which provides that 'Parts I;- IV to VI(both inclusive) of the Ceylon (Parliamentary Elections) Order inCouncil 1946, shall for the purpose of the election andnotwithstanding the repeal of such Order in Council, be deemed to bein force, and shall mutatis mutandis except as otherwise expresslyprovided in the Constitution apply to such election.' Hence in so far assection 82D(2)(b)(ii) is inconsistent with Article 89(e)(iii) of the 1978Constitution, it will'have to yield to that Article and any disqualificationprescribed by that section, in so far as it is in conflict with Article 89 ofthe Constitution, will cease to be operative and cannot impose adisqualification to being an elector at the election of Members ofParliament or to being elected as a Member of Parliament.
On the facts in the case the issue whether the petitioner isdisqualified from being an elector or from being elected as a Memberof Parliament has to be determined solely by reference to Articles 89and 91 of the Constitution. Hence the relevant question is whether interms of Article 89{e)(iii) the petitioner has been reported by a Judgeto have been found guilty of a corrupt practice under the(Parliamentary Elections) Order in Council, 1946 . if not, the petitioneris qualified to be an elector and to be elected as a Member ofParliament.
Admittedly the relevant report of the Election Judge (P3) does notfind the petitioner guilty of any corrupt practice. The report only findsthat Basil Rajapakse acting as an agent and with the knowledge andconsent of the petitioner was proved to have committed a corruptpractice.
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Sri Lanka Law Reports
(198512 SriLR.
The Deputy Solicitor-General Submitted that in the English conceptof election law a person can be guilty personally or by his agent andthat accordingly when the petitioner's agent was found guilty ofcorrupt practice by the report of the Election Judge not only was theagent so guilty but the candidate himself was deemed to be guilty. Hesubmitted that 'guilty of' should be construed to mean 'culpablyresponsible for.' He urged that the candidate should be held culpablyresponsible for the corrupt practice committed by his agent or with hisknowledge and consent. According to him, it was not sufficient thatelection law made the candidate answerable, in that, his election isdeclared void for the commission of the corrupt practice ; he shouldalso suffer the same incapacity as the offender. I cannot agree. Suchpunishment is a matter for the legislature. Unless statute lawspecifically so provides as by the aforesaid section 82D(2)(f>)(ii),vicarious, liability in common law does not extend to the deprivation ofone's franchise to which the Constitution attaches the attribute orstamp of inalienability
The corresponding English Law is set out in sections 138 and 139of the Representation of the People Act 1949. Section 138(i)provides that-
'the report of an election court shall state whether any corruptpractice has or has not been proved to have been committed by orwith the knowledge and consent of any candidate at the electionand the nature of the corrupt practice.'
Section 138(ii) states –
"for the purpose of the next tv&o following sections, if it is reported
that a corrupt practicewas committed with the knowledge
and consent of a candidate he shall be treated as having beenreported personally guilty of that corrupt practice."
Section 138{iii) provides that the report shall also state –
"whether any of the candidates has been guilty by his agent of anycorrupt practice in reference to the election. . . '
Section 139( 1) enacts that –
"if a candidate who has been elected is reported by an electioncourt personally guilty or guilty by his agent of any corrupt practicehis election shall be void."
sc
Kularatne v. Chandrananda de Silva (Sharvananda, C.J.)
J7S
Section 139(2} states that –
"a candidate at a parliamentary election shall also be incapable
from the date of the report from being elected to and sitting in the
House of Commons. . . .
if reported personally ouilty of a corrupt practice, for ten years ;
if reported guilty by his agent of a corrupt practice, for sevenyears.”
It will be seen that for the purpose of the provision which imposescivil incapacity on a candidate personally guilty of a corrupt practice, ifit is reported that a corrupt practice was committed with thecandidate's knowledge and consent, he is to be treated as havingbeen reported personally guilty of the corrupt practice. A candidatemay also suffer civil incapacity if the report states that the candidatehas been guilty by his agent of any corrupt practice in reference to theelection.
According to English election laws, a candidate can be guiltypersonalty not only for some corrupt practice actually committed byhim, but also if it is reported that a corrupt practice was committedwith the candidate's knowledge and consent. The candidate will alsobe guilty by his agents of a corrupt practice, if the report finds that hisagent had committed a corrupt practice.
The aforesaid provisions do not lend support to the Deputy SolicitorGeneral's submission that a report of an Election Judge finding that acorrupt practice had been committed by the candidate’s agent or vyithhis knowledge and consent, necessarily imports the idea that thecandidale has been found guilty of a corrupt practice. It was expresslyenacted that the guilt of the agent or of the person who committed thecorrupt practice with the knowledge and consent of the candidateshould be attributed to the candidate. The English draftsman hasbeen careful to draw the distinction between "personal guilty" and"guilty by his agent" and when he makes provision for the case of acorrupt practice committed with the knowledge and consent of acandidate, he specifically, invokes the aid of a deeming section bystating "he (the candidate) shall be treated as having been reportedpersonally guilty of corrupt practice," for the purpose of the avoidanceof the election and of imposing incapacity on the candidate. There isno justification for superimposing the English statutory concept of "a
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[1985] 2 SriL.R.
candidate being' guilty personally or by his agent of any corruptpractice' on the plain language of Article 89(e)(iii) which speaks onlyof a "report made by a Judge finding him guilty of any corruptpractice."
Article 89 of the 1978 Constitution provides for the disqualificationof a person arising from a finding of an Election Judge that he is guiltyof any corrupt practice under the Ceylon (Parliamentary Elections)Order in Council. This will cover only the case of-the person foundguilty of himself having committed a corrupt practice. If as in EnglishLaw this disqualification is to attach to any person found guilty by hisagent of any corrupt practice or by any person committing with hisknowledge and consent any corrupt practice, the draftsman couldhave adopted the parallel provisions of the English Representation ofPeoples Act 1949 and specifically stated so. In the absence of suchspecific provisions as sections 138 and 139 of the EnglishRepresentation of Peoples Act 1949, it is not open for this court toread into Article 89(e)(iii) of the Constitution words which are notthere, words which would enlarge the ambit of the disqualification.There is no warrant for attributing to the words ‘finding him guilty ofany corrupt practice’ in Article 89(e)(iii) the sense of "finding him guiltyby his agent or by any person with his knowledge and consent of anycorrupt practice."
On the basis of the aforesaid reasoning this court determines thequestions referred to it as follows :
Question –
Answer – No.
Answer – No.
The words *a report made by a Judge finding him guilty of
any corrupt practice. …" in Article 89(e) (iii) of theConstitution apply only to such a person who is set out in suchreport as having been proved himself to have been guilty (asprovided in section 82 (b) of the said Order-m-Council) of thecorrupt practice of making such false statement of fact anddoes nor apply also to the candidate (though not set out in suchreport as having been proved himself to have committed suchcorrupt practice), whose agent is set out in such report ashaving committed such practice with such candidate'sknowledge and consent.
sc
Kularatne v. Chandrananda de Silva (Sharvananda, C.J)
177
The, provisions of section 82D(2)(£>)(ii) ar,d 83D(3) of the Elections ^Order in Council ceased to be law with the coming into existence ofthe Constitution of 1972 and hence were not existing law’ when theConstitution of 1978 came into operation. Being inconsistent withArticle 89(e)(iii) of the 1978 Constitution they were not revived by theFifth Amendment. The question of petitioner's (disqualification to be anelector has to be decided solely by reference to Article 89(e){iii)of the1978 Constitution. For the reasons set out above this Article does notdisqualify the petitioner from being an elector in terms of Articles 88and 89 of the Constitution. The Court of Appeal is directed to make itsorder on the petitioner's application in the light of the answers givenabove, by this court.
COUN THOM£, J. -1 agree.
ATUKORALE, J. – I agree.
Case sent back for order of the Court of Appeal
i