have ceased to be facts. There are no absolute or immediately evident facts.
Only by being first ascertained through legal procedure are facts brought into
the sphere of law or we may say though it may sound paradoxical that the
competent organ legally creates facts. The Courts perform a constitutive
function in ascertaining facts. There is no fact in itself that A has killed B.
There is only somebody's belief or knowledge. They are all private opinions
without relevance. Only establishment by a competent organ has legal
relevance. See Kelsen: General Theory of Law and State, p. 136. And when
that organ was rendered coram non judice, and its judgment declared void,
the facts created by it perished. They ceased to be facts. Adjudicative facts of
an election dispute cannot be gathered by legislative process behind the back
of the parties; they can be gathered only by judicial process. The amending
body did not ascertain the facts by resorting to judicial process.
310. If Clause (4) was an exercise in legislative validation without
changing the law which made the election invalid when there ought to have
been an exercise of judicial power of ascertaining the adjudicative facts and
applying the law the clause would damage the democratic structure of the
Constitution as the Constitution visualizes the resolution of an election
dispute by a petition presented to an authority exercising judicial power. The
contention that there was no election dispute as clause (4) by repealing the
law relating to election petition had rendered the petition filed by the
respondent nonest, if allowed, will toll the death knell of the democratic
structure of the Constitution. If Article 329 (b) envisages the resolution of an
election dispute by judicial process by a petition presented to an authority as
the appropriate legislature may by law provide a constitutional amendment
cannot dispense with that requirement without damaging an essential
feature of democracy viz., the mechanism for determining the real
representative of the people in an election as contemplated by the
Constitution.
311. All the cases cited by the Solicitor General pertain either to
legislative validation of a void election by applying a new law to undisputed
facts or to the removal of an admitted disqualification by a law with
retrospective effect.
312. In Abeyesekera v. Javatilake, 1932 AC 260, the facts were: An order
in council of 1923 made provision as to the Legislative Council in Ceylon, but
reserved to His Majesty power to revoke, alter or amend the order. The
appellant, as common informer brought an action to recover penalties under
the order from the respondent, who he alleged had sat and voted after his
seat had become vacant under its provisions by reason of his having a
pecuniary interest in a contract with the Government. In 1928, after the
action had been brought but before its trial, an amending order in Council
was made which provided: “if any such action or legal proceeding has been or
shall be instituted, it shall be dismissed and made void, subject to such order
as to costs as the Court may think fit to make.” It also amended the Order of
1923 so as to except the office held by the respondent from its operation. The
Privy Council held that the Order of 1928 was valid, having regard to the
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents