O. S. RATWATTE, Appellant, and S. D. PIYASENA, Respodndent

013-NLR-NLR-V-69-O.-S.-RATWATTE-Appellant-and-S.-D.-PIYASENA-Respodndent.pdf


Ratwatte v. Piyasena
40
1966Present : Sansoni, C.J., H. N. G. Fernando, S.P.J., and
Tambiah, J.
(J. S. RATWATTE, Appellant, and S. D. PIYASENA,Respondent
Election Petition Appeal No. 3 of 1066—Electoral DistrictNo. Ill (Balangoda)
Election petition—Appointment of Election Judge by Governor-General—Constitutionalvalidity thereof—Ceylon (Parliamentary Elections) Order in Council, 1946, asamended by Act No. 11 of 1959, and Act No. 72 of 1961, s. 7SA (1)—Ceylon(Constitution) Order in Council, 1946, as amended by Act No. 71 of 1961, as. 4 (2),29 (4), 52. 55 (5)—Parliament (Powers and Privileges) Act (Cap. 383), s. 7.
The appointment of an Election Judge nominated by the Chief Justice interms of section 78 A (I) of the Coylon (Parliamentary Elections) Order inCouncil to hear an election petition is not rendered constitutionally invalid bythe fact that he is nominated from the panel of Election Judges appointed bythe Governor-General with the advice of the Judicial Service Commission interms of section 78 (1), as amended by Acts Nos. 11 of 1959 and 72 of 1961.
Per Sansoni, C.J.—“The Ceylon (Parliamentary Elections) Order in Councilis subject to amendment or repeal, like any ordinary Act of Parliament, by asimple majority. It is certainly not a part of the Constitution, and it thereforehas none of the sanctity which attaches to the latter.”
Per R. N. G. Fernando, S.P.J.—“ Assuming, but not deciding, that section78 (of the Parliamentary Elections Order in Council), if it had stood alone,would conflict with tho Constitution, I would hold that such conflict has beenavoided by tho amendment of section 55 of the Constitution.”
Per Tambiah, J.—“ Even if the view is takon that the Election Court isexercising judicial power, section 55 of the Constitution has been properlyamended by An 71 of 1961 which was passed by a two-third majority of theHouse.”
ElECTION Petition Appeal No. 3 of 1966—Electoral District No. 141(Balangoda).
O.E. Chilly, Q.C., with E. R. S. R. Coomaraswamy, Felix R. DiasBandaranuike, U. B. Weerasekera and Nihal Jayawickrema, forRespondent-Appellant.
H. W. Jayewardene, Q.C., with Isadeen Mohamed and D. S. Wijt*wardene, for Petitioner-Respondent. V.
V. Tennekoon, Q.C., Solicitor-General, with M. Kanagasunderam andAnanda G. de. Silva, Grown Counsel, for Attorney-General.
Cur. adv. mU.
LX IX—3
10868—1,064 (11/66)
50
SANSONI, C.J.—Ralwatte v. Piycuena
August 11,1966. Sansoni, C.J.—
The petition of appeal filed hv the respondent-appellant whose electionhad been declared void by the Election Judge contains twenty-fiveparagraphs, but the only point seriously argued on his behalf is thatcontained in paragraph 25. It reads : “ The election Court as constitutedhad no jurisdiction to enquire into and determine the said election petitionin as much as the Court had not been validly constituted and the Judgeof that Court had not been validly appointed according to law and interms of ihe Constitution.”
The Election Judge was nominated to try this election petition by theChief Justice in terms of section 7Sa (1) of the Cej-lon (ParliamentaryElections) Order in Council, 19-16, from the panel of Election Judgesappointed by the Governor-General with the advice of the Judicial ServiceCommission in terms of section 7S (1). That panel was appointed forone j'car from 15th June, 1965, and consisted of all the Judges of theSupreme Court and the District Judges of Colombo and Galle.
To appreciate the arguments put forward for the appellant it isnecessary to refer to certain statutory provisions relating to the trial ofElection petitions. Under s. 78 of the Ceylon (Parliamentary Elections)Order in Council, 1946, as originally enacted, every Election petition hadto be tried by the Chief Justice or by a Judge of the Supreme Court nomi-nated by the Chief Justice for the purpose. The Chief Justice or theJudge so nominated was described as the Election Judge. Section 78was amended by Act No. 11 of 1959 which came into force on 7th May,1959. Sub-section (1) provided that the Governor-General shall, withthe advice of the Judicial Service Commission, appoint a panel of notless than five Election Judges. Under sub-section (2) a person appointedwas to hold office for such period as the Governor-General may determineat the time of the appointment, unless he chose to resign, earlier. Anew s. 78a provided that the Chief Justice shall nominate from thepanel of Election Judges an Election Judge for the trial of an electionpetition.
Act No. 72 of 1961 which came into force on 30th December, 1961, madefurther amendments to s. 78 (1) by providing that the panel of ElectionJudges should be appointed from among persons for the time beingholding office as Judges of the Supreme Court, Commissioners of Assize,or District Judges of the Districts of Colombo, Kandy, Galle and Jaffna.The expression “ District Judges ” did not, for this purpose, includeAdditional District Judges. A new sub-section (3) provided that aCommissioner of Assize or a District Judge, for so long as he is an ElectionJudge for the trial of an election petition, shall be entitled to the samesalary as a Commissioner of Assize.
SANSOXI, C.J.—Ratxcalte v. Piyagtna
SI
On the very same day that the Amending Act No. 72 of 19G1 came intoforce, the Ceylon (Constitution) Amendment Act No. 71 of 10S1, alsocame into force. It was passed in accordance with the requirements ofs. 29 (4) of the Ceylon (Constitution) Order in Council, 1946 (hereinafterreferred to as the Constitution), including the Speaker’s certificate. Itamended s. 55 (5) of the Constitution in regard to the definition of “ judicialofficer ”, and as amended the sub-section reads
“ ‘ Judicial officer ’ means the holder of any judicial office but doesnot include a Judge of the Supremo Court, a Commissioner of Assize,or an election judge appointed by the Governor-General under sub-section (1) of Section 78 of the Ceylon (Parliamentary Elections) Orderin Council, 1946.”
The resulting position with regard to Election Judges is that theGovernor-General, with the advice of the Judicial Service Commission,appoints a panel of not less than five Election Judges from among theJudges of the Supreme Court, Commissioners of Assize, and the fourDistrict Judges mentioned. They hold office for such period as theGovernor-General determines at the time of the appointment. Thismeans that they cannot bo removed earlier, although it is open to any ofthem to resign his office earlier. The Supremo Court Judges so appointedreceive their normal salaries ; and a Commissioner of Assize or a DistrictJudge, while ho is an Election Judge for the trial of an election petition,receives the salary of a Commissioner of Assize (Section 78 (8)). Andan Election Judge is not a judicial officer as that term is used in theConstitution.
The position is, of course, different from that which prevailed whenthe Ceylon (Parliamentary Elections) Order in Council, 1946, was firstmade. For whereas formerly all Supreme Court Judges were eligible totry election petitions, now only those who are on the panel may do so.Further, Commissioners of Assize and the four specified District Judgesare also qualified to be appointed Election Jedges. The appointment ofa panel of Election Judges by the Governor-General acting with theadvice of the Judicial Service Commission is yet another innovation.
All these changes were attacked as being unconstitutional by Mr.Chitty. He attacked the new power given to the Governor-Generalbecause, he urged,
he could act maliciously or unfairly when he appointed the panel,
and the Executive should not be given the power to selectparticular Judges especially where the parties to the electionpetitions were already known ;
the Governor-General performs a judicial function when he appoints
the panel;
62SANSOX1, C.J.—Ratwatte v. Piyasena
the advice of the Judicial Service Comm ssion may be vague ;
and even if it was not, the Governor-General was not obligedto follow it since the words in s. 78 (1) were “ with the advice ”and not “ in accordance with the advice
He also urged that—
the jurisdiction to try election petitions, which had previously
been vested in all the Judges of the Supreme Court, had beentaken away and vested in a new Court which need not includeall, or even any of the Judges : and the new Court could includeother Judges who were not Judges of the Supreme Court;
Section 52 of the Ceylon (Constitution) Order in Council, 1946,
which says that the Chief Justice and the Puisne Judges of theSupreme Court and Commissioners of Assize shall bo appointedby the Governor-General, had not been amended to includea reference to the new class of Judges ;
Irremovability from office had not been provided for in the case of
those Election Judges who were not Judges of the SupremeCourt, even though they were invested with powers which hadformerly belonged only to the Supreme Court.
Therefore, the argument ran, the changes should have been introducedby way of constitutional amendments in accordance with the provisionsof a, 29 (4) of the Constitution.
It seems to me that these arguments against the validity of the amend-ments do not take account of the fact that the. Ceylon (ParliamentaryElections) Order in Council is subject to amendment or repeal, like anyordinary Act of Parliament, by a simple majority. It is certainly nota part of the Constitution, and it therefore has none of the sanctity whichattaches to the latter. The Constitution was first made on the 15th May,1946, while the Ceylon (Parliamentary Elections) Order in Council wasmade on the 24th September, 1946, its object being to make provision forthe election of Members to serve in the House of Representatives. Itfollows that the jurisdiction to try election petitions, which the latterconferred on all the Judges of the Supreme Court, was one which Parlia-ment had the power to remove or alter by creating a new Election Courtto be manned by a new set of Judges such as the amendments specify.
It was not necessary to amend s. 52 of the Ceylon (Constitution) Orderin Council because that section says nothing about the jurisdiction of theSupreme Court. The amendments in question do not in any way affectthe operation of s. 52. The Constitution, I may add, does not vest thejurisdiction to try election petitions in the Supreme Court. It is true
SANSONI, C.J.—RalwcUte v. Piyaeena
53
that there is no provision against the removal of an Election Judge fromthe panel after he has served the period fixed at the time of his appoint-ment. But it must be remembered that ODly Judges of the SupremeCourt are protected from removal under s. 52 (2) of the Constitution-If and when it is considered necessary to extend this protection to ElectionJudges or any other Judges, of whom there are many in Ceylon, nodoubt a proper amendment of the Constitution will be made. Theobjection raised by Mr. Chitty under this head should properly beaddressed to those who have the power to amend the Constitution.
The arguments that in consequence of the amendments the Governor-General can select particular Judges, and that he performs a judicialfunction in appointing the panel, are unsound. It is unreasonable toimagine that the amendments enable the Executive, in the person of theGovernor-General, to interfere with the powers of the judiciary. Underthe Constitution the Chief Justice and Puisne Justices of the SupremeCourt and Commissioners of Assize are appointed by the Governor-Generaland nobody else. (S. 52 (1)). The amendments make the Governor-General the appointing authority in the case of Election Judges as well,and this seems to me an entirely proper provision. Section 4 (2) of theConstitution requires the Governor-General to exercise his powers,authorities and functions as far as may be in accordance with the constitu-tional conventions applicable to the exercise of similar powers, authoritiesand functions in the United Kingdom by Her Majesty. Hence theGovernor-General would always act on the advice of a Minister.
Under the amendments, Parliament has wisely provided that insteadof acting on the advice of a Minister when appointing the panel of ElectionJudges (as he would ordinarily have done according to the constitutionalconvention), the Governor-General should act with the advice of theJudicial Service Commission, a body which is expected to be entirelyfree from political influence. Parliament no doubt thought that sincepolitical questions may arise in the trial of election petitions to a greaterextent than in the appointment of the Chief Justice and the PuisneJustices, it was more appropriate that instead of a Minister, the JudicialService Commission should advise the Governor-General. Again,according to constitutional convention the Governor-General would beexpected to act in accordance with the advice of the Judicial ServiceCommission and not independently of, or contrary to, such advice.The Commission will, in turn, advise the Governor-General with a duesense of responsibility, as one would expect of such a body.
The argument that the Governor-General performs a judicial functionwhen he appoints the panel cannot be taken seriously. It seems toconfuse the executive function, which the Governor-General performswhen appointing Judges to their office, with the judicial function whichthe Chief Justice performs when he nominates a particular Judge to try
«*-EB 19358 (11/66)
54
SANSONI, C.J.—RatwaUe v. Piyastna
a particular election petition. It is not difficult to see why s. 55 of theConstitution was amended. The trial of election petitions had alwaysbeen assigned in Ceylon to the Supreme Court. The Ceylon (LegislativeCouncil) Orders in Council of 1920 and 1923 provided that every electionpetition should be tried by a Judge of the Supreme Court; and accordingto the Rules made under those Orders the Chief Justice appointed aparticular Judge to preside at the trial of a particular election petition.Since, therefore, the jurisdiction to try election petitions had, ever sinceParliamentary elections were first held, been vested in the SupremeCourt, it was probably considered to be an exercise of judicial power.When the amendments made in 1959 and 1961 took away that powerfrom the Supreme Court and vested it in another Court composed of apanel of Election Judges, it may well have been thought that the Judgeson the panel who were not Judges of the Supreme Court or Commissionersof Assize appointed by the Governor-General would have to be appointedby the Judicial Service Commission under s. 55 of the Constitution,unless special provision was made to the contrary. Act No. 71 of 1961was thus enacted to avoid a possible breach of the Constitution, for itwas there stated explicitly that all Election Judges should be appointedby the Governor-General and not by the Judicial Service Commission.
At the root of the objections taken to the amendments seems to liesome groundless fear that the innovations would lead to a widespreadabuse of power by all who wield it. One can, by flights of imagination,contemplate innumerable possible abuses of power by those who exerciseit. But the question before us is not that, nor does the possibility thata particular power will be abused vitiate a constitutional vesting of thatpower in a particular officer.
Under the impugned amendments the power to try election petitionsis now vested, as before, in a body of Judges, though they are not nowall Judges of the Supremo Court. The Constitution does not requirethat they should be Judges of the Supreme Court; hence there is nobreach of the Constitution. I
I wish to refer briefly now to the submissions of Mr. Jayewardene andthe Solicitor-General that an Election Judge does not exercise judicialpower. Mr. Jayewardene relied on the right, which the House ofCommons in England had regularly claimed, to determine all matterstouching the election of their Members. According to Erskine May’sParliamentary Practice, ever since the reign of Queen Elizabeth I theexclusive right of the Commons to determine the legality of returns wasrecognized by the Courts. It was only in 1868 that the House of Commonsdelegated its jurisdiction in this matter to the Courts of Law. Mr.Jayewardene argued that by the same reasoning we should hold that the
SANSONI, C.J.—Ratwatte v. Piyaxena
55
jurisdiction exercised by Election Judges is a special jurisdiction whichdoes not involve the exercise of a judicial power, being a mere delegationby the House of Representatives to Election Judges.
In view of my findings on the first pomt discussed at the beginning ofthis judgment, this point does not strictly arise. I have already heldthat the amendments made to empower the Governor-General to appointa panel of Election Judges are perfectly constitutional, and their authorityto exercise judicial power has been validly conferred on them. I would,however, draw attention to the fact that the power which the House ofCommons exercised in England to try controverted elections is the exerciseof a privilege of that House to provide for its own proper constitution.If that is so—and there is the authority of Erskine May for it—I donot find any reservation of such a privilege by the House of Represen-tatives when it enacted the Parliament (Powers and Privileges) Act,Cap. 383, in 1953. In 1953, therefore, having regard to the terms of s. 7ofthat Act, the House of Representatives would appear to have abandonedthis privilege, even if it had existed before then. In this view of thematter the judgment in The Queen v. Richards 1 is inapplicable to thecase we have to consider, because there was no such abandonment inAustralia and no such legislation as our Act of 1953.
But I am not satisfied that it existed even before. When the firstParliamentary Elections were held in Ceylon in the 1920’s, the trial ofelection petitions was entrusted by Orders in Council to the Judges ofthe Supreme Court. The privilege in question was never exercised byany legislature in this country, and as I have already said, the House ofCommons in England had long since delegated its rights in this matterto the Courts of Law. Therefore it seems to me that this power to trycontroverted elections was never vested in any body but in a Court ofLaw exercising judicial power so far as this country is concerned.
The Privy Council decisions from Theberge v. Laudry2 to Senanayake
o.Navaratne3 do not touch this question. They were only concernedwith the right of appeal to that body. It was held that the jurisdictionof deciding election petitions and deciding the status of members of alegislative assembly is a special one which “ should be exercised in away that should as soon as possible become conclusive, and enable theconstitution of the legislative assembly to be distinctly and speedilyknown”. For this reason it was held that there was no appeal to the PrivyCouncil in such cases.
Mr. Chitty made a lukewarm criticism of the finding of the ElectionJudge that the offence of treating had been proved beyond reasonabledoubt against the appellant. The argument was that K. S. Perera,
' (J955) 92 C. L. R. 157.* (1876) 2 A. C. 102.
* (1954) 56 N. L. R. 5.
10-Volume LXIX
86
H. N. G. FERNANDO, S.P.J.—RatwaUe v. Piyasena
who the Judge found had committed this offence on polling day, was no^proved to be an agent of the appellant. On this matter there is anadmission made by the appellant’s counsel at the trial that if the evidenceof any one of the three witnesses called by the petitioner on this chargewas accepted, then all the elements of the charge of treating had beenmade out. He also conceded in the course of his address that agencyhad been proved. In an}' event the findings of fact of the Judge are suchthat it is impossible for us to interfere.
I would affirm the decision of the Election Judge and dismiss thisappeal with costs.
H. N. G. Fernando, S.P.J.—Although the petition of appeal filed in this case challenged all thefindings of fact of the learned Election Judge as being based on allegedmisdirections in law, only one of such alleged misdirections was referredto in the arguments for the appellants, when Counsel adopted the con-tentions as to the meaning of the term “ agent ” in Election Law whichhad been put forward in an earlier appeal (Bentara-Elpitiya AppealNo. 8 of 1965). The principal argument, that Section 78 of the Parlia-mentary Elections Order in Council conflicts with the principle of theSeparation of Powers, is not one which was taken before the trial Judge.To all appearances, advantage has been taken of the right of appeal on aquestion of law to prolong the Parliamentary life of a person whoseelection was declared void by the Election Judge.
Assuming, but not deciding, that Section 78, if it had stood alone,would conflict with the Constitution, I would hold that such conflict hasbeen avoided by the amendment of Section 55 of the Constitution. Ihave no doubt that the intention of Parliament was to render valid bythat amendment the provisions of the new Section 78 of the Parlia-mentary Elections Order for the appointment of a panel of ElectionJudges by the “ Governor-General on the advice of the Judicial ServiceCommission”. One of' Mr. Chitty’s arguments has been that theamendment failed to achieve that intention.
Section 55 (in its original form) of the Constitution provided thatappointments of “ judicial officers ” must be made by the Judicial ServiceCommission ; but it contained an explanation designed to exclude Judgesof the Supreme Court and Commissioners of Assize from the category of“ judicial officers ”. The reason for this exclusion was that Section 52 ofthe Constitution already provided for the appointment of these Judgesand Commissioners by the Governor-General. When in 1961 Parliamenthad in contemplation a new enactment providing for a panel of ElectionJudges, the explanation in Section 55 was amended so as to exclude also
TAMBIAH, ,T.—Ratwntte v. Piyasena
57
Election Judges appointed by the Governor-General. Thus Parliamentdid intend to place such appointments, in the matter of validity, on a parwith appointments under Section 52 of the Constitution.
This construction of the amendment of Section 55 is both reasonableand legitimate, for in any other sense it was futile. Even if Parliament’sintention could have been expressed by some different and clearerprovision, the intention has been sufficiently demonstrated by theamendment actually effected.
By reason of appointments actually made under the new Section 78 ofthe Parliamentary Elections Order, all Judges of the Supreme Court areeligible, as they formerly were, for nomination by the Chief Justice tohear an Election petition. The only change in fact has been that a fewDistrict Judges are now eligible for such nomination. If it can properlybe said that there has thus been an encroachment upon the jurisdictionpreviously enjoyed by Judges of Supreme Court exclusively, those whothus encroach are themselves members of the Judicature. There hashere been no encroachment by the Legislature or the Executive, whichhas been held in recent judgments to be unconstitutional. Moreover, theGovernor-General's power of appointment under Section 78 must beunderstood in the context of the familiar convention which he is boundby law to observe. The presumption {omnia rile esse acta), that theGovernor-General accepted in full the advice of the Judicial Service Com-mission, leaves no scope for the Courts to entertain speculative suggestionto the contrary. The mere possibility that an Act of Parliament can beutilised for an unconstitutional purpose is no ground for contesting thevalidity of something done under the Act whit h is itself constitutional.In this view of the matter it was perhaps not necessary to amendSection 55 of the Constitution.
I must add that I express no opinion on the question whether thepowers of an Election Judge are merely powers delegated by Parliament,which might lawfully be exercised by Parliament itself.
I agree that the determination of the Election Judge in this case mustbe affirmed w’ith costs.
Tambiah, J.—
I had the benefit of reading the judgment of My Lord the Chief Justiceand I am in agreement with the conclusion reached by him. Since theappellant’s counsel has raised an important constitutional point I ventureto add a few observations.
The most satisfactory definition of judicial power is found in thedictum of Griffiths, C.J. in Iluddert, Parker & Co. Proprietary ltd. v.Moorehead1, where he defined judicial power as ‘‘the power which every
1(190S) 8 Commonwealth Law Reports 330 at 357.
58
TAMBIAH, J.—Ratwatte t>. Piyasena
sovereign authority must of necessity have to decide controversiesbetween its subjects or between itself and its subjects, whether the rightsrelate to life, liberty or property. The exercise of this power does notbegin until some tribunal which has power to give a binding and authori-tative decision (whether subject to appeal or not) is called upon to takeaction”. This definition has been adopted by the highest tribunal of theIsland (vide Liyanage and others v. The Queen1 ; Shell Company ojAustralia v. Federal Commissioner of Taxation 2).
Applying the tests suggested in this definition an Election Judge is notexercising the judicial power of the State when he hears' an electionpetition. He does not adjudicate on the rights between subject andsubject or between the State and the subject. Further the power that isexercised is not one which the sovereign authority has to decide whencontroversies arise between its subjects or between itself and its subjects.The Election Judge can only declare an election null and void if any ofthe grounds set out in sections 76 and 77 of the Ceylon (ParliamentaryElections) Order in Council of 1946 have been proved.
When he sets aside an election and sends a report to the Governor-General, the seat of that particular candidatj is declared void. Theresulting position is that the composition of the Parliament is altered.
In England the Election Judge’s power is historically derived from uneParliament, which has the undoubted right to determine its own com-position. His power to hear election petitions is delegated power. Tilli860 the House of Commons in England exercised the power to excludeits members who secured their election by illegal or corrupt means. In1868 this power was delegated to the Courts (vide May’s ParliamentaryPractice, 16th Edition, p. 183).
The power to report persons found guilty of corrupt practice duringelections and the resultant disqualification for seven years again showthat the power of the Election Judge is really a delegated function ofthe Parliament which has the power to decide its own composition.
Since there is no exercise of judicial power of the State by an ElectionJudge, the Privy Council has repeatedly held that it has no power toentertain appeals from the judgments of the Election Courts unless such anappeal had been specially provided for by the Legislature of the Dominionconcerned (vide Strickland v. Grima3 Senanayake v. Navaratne 4). Inthe case of O. E. de Silva v. Attorney General 5, Lord Simonds stated asfollows :—
“ It was contended for the petitioner that different considerations
apply where, as here, the jurisdiction of the election judge to hear
election petitions is not substituted for that of the legislative body
1 (1965) 68 N. L. R. 265.* (1931) A. C. 275 at 295.
• (1930) A. C. 285.
1 (1954) 56 N. L. R. 5.
“ (1949) 50 N. L. R. 481 at 483.
TA Mi SI AH, J.—RatwaWs v. Piyasena
69
itself but is created de novo upon the establishment of that body. Butthis appears to their Lordships to be an unsubstantial distinction and ineffect to be met by the later case of Strickland v. Grima (1930 A. C. 285).Such a dispute as is here involved concerns the rights and privileges ofa legislative assembly, and, whether that assembly assumes to decidesuch a dispute itself or it is submitted to the determination of a tribunalestablished for that purpose, the subject matter is such that the deter-mination must be final, demanding immediate action by the properexecutive authority and admitting no appeal to His Majesty inCouncil.”
This principle has been extended to cover Election Petitions concerninglocal elections (vide Arsu v. Arthursl.
I have already held in my dissenting judgment that judicial power ofthe State is not vested in the Supreme Court and the other Courts inCeylon. Even if it is held that in Ceylon the Charter of Justice of 1833vested the judicial power of the Sovereign in the Courts in Ceylon, in1833 no jurisdiction was vested in any Election Court to set aside theelection of any person to the Legislature of Ceylon as Ceylon was a CrownColony at that time and there was no representative Government. Till1924 the Governor had the discretion to discontinue a member of theLegislative Council for misconduct. The power to try election petitionswas conferred on a Judge of the Supreme Court by the Legislative CouncilOrder in Council of 1923 (vide section XXXVII (2) ). At the time thisOrder in Council came into force the supreme legislative power was inthe Sovereign. When His Majesty conferred this power on our Courtsby the Order in Council of 1923, he delegated his power:-, as the SupremoLegislator and not as the repository of judicial power of the State. From1924 till Ceylon attained Dominion Status Election Courts exercised theirfunction not by virtue of judicial powers vested in them but as a delegatedfunction of the Sovereign who retained his undoubted power to legislate.
When the Constitution Order in Council of 1946 conferred a Constitutionon Ceylon, the Ceylon (Parliamentary Elections) Order in Council of 1940provided for the conduct of elections. By section 12 of the Ceylon(Constitution) Order in Council a person who is qualified to be an electoris also declared to be qualified to be elected or appointed to eitherChamber of Parliament. The Ceylon (Parliamentary Elections) Order inCouncil can be amended by a simple majority of the House. Thereforethe Parliament has the power to amend this Order in Council by a simplemajority.
The power to try election petitions was conferred on a Judge nominatedby the Chief Justice from a panel of Judges selected by the Governor-General (vide section 78 of the Ceylon (Parliamentary Elections) Order in.
(1965) P. C. 1 W. L. R. 675.
60
The Queen v. Brampy Singho
Council of 1946). Later this provision was amended by section 22 of Act11 of 1959 and section 2 of Act 72 of 1901. These amendments to theOrder in Council do not contravene the provisions of the Ceylon (Con-stitution) Order in Council of 1946 and the Ceylon Independence Act of1947.
Even if the view is taken that the Election Court is exercising judicialpower, section 55 of the Constitution has been properly amended byAct 71 of 1961 which was passed by two-third majority of the House.The Speaker’s certificate is appended to this amendment. Thereforethis amendment is in order. The amendment is as follows
“ Section 55 of the Ceylon (Constitution) Order in Council, 1946, ishereby amended in, sub-section 5 of that section, by the substitution,for the words * Supreme Court or a Commissioner of Assize ’, of thewords ‘ Supreme Court, a Commissioner of Assize, or an ElectionJudge appointed by the Governor-General under sub-section (1) ofsection 78 of the Ccy’.on (Parliamentary Elections) Order in Council,1946’.”
Thus it is clear, that by a proper constitutional amendment, theElection Judge appointed by His Excellency the Governor-General, isrecognised as a person empowered to hear election petitions by theparamount law.
Therefore I hold that the Election Judge had the power and jurisdictionto hear election petitions. The appeal is dismissed with costs.
Appeal dismissed.