028-NLR-NLR-V-49-ILANGARATNE-et-al.-Petioners-and-G.-E.-DE-SILVA-Respondent.pdf
lUangaratne v. 0. E. de Silva.
87
1947Present: Windham J.
– ILANGARATNE et al., Petitioners, and G. E.
DE SILVA, Respondent.
Election Petitions Nos. 4 and 5, Kandy Electoral District
Election ^petition—Person not party to petition—Corrupt or illegal practice—Right tobe heard—Before or after descision of Judge—Right to cross-examine witness—Parliamentary Elections Order in Council, 1946, section S2.
Where a person, not a party to an election petition, is charged with corruptor illegal practice, he must be given an opportunity of biong heard and callingevidence before a decision is given as to the validity of the election. Hewould not in such a case have the right to cross-examine witnesses called by
the petitioner*
5 5 Thambyah’s Rep. 145.
(1935) 40 N. L. R. /.
88
WINDHAM J.—lUangaratne v. O. B. de Silva.
RDER made in the course of the hearing of a Parliamentaryelection petition.
F. N. Gratiaen, K.C., with S. Nadesan and G. T. Samaraioickreme,
for the petitioner in Petition No. 4.
F. N. Gratiaen, K.C., with B. H. Aluwihare and S. E. J. Fernando,for the petitioner in Petition No. 5.
R. L. Pereira, K.C., with U. A. Jayasundere, J.A. L. Cooray andS. J. Kadirgamer, for the respondent in Petitions Nos. 4 and 5.
S. Barr Kumarakvlasingham. with Vernon Wijetuge and A. J.Rajasingham, for Mr. Fred de Silva.
December 17, 1947. Windham J.—
The point arises for decision as to the meaning of article 82 (2) ofthe Ceylon Parliamentary Elections Order-in-Couneil, 1946. Twopoints have to be determined. First, the question arises whether theopportunity given under that article to a person not being a party toan election is to be given before or after the Election Judge has deter-mined whether he has been guilty of a corrupt or illegal practice.
have no doubt at all on the authorities. In particular I would referto the case of Latiff v. Saravanamuttu reported in 34 New Law Reportpage 369, that the finding of the Election Judge under article 81 andthe report to the Governor under article 82 (1) ought to be made simul-taneously. Furthermore, since such a report must be made by theElection Judge in the case of any person found to have committed anelection offence, it would be futile for such a person to be allowed toshow cause why he should not be reported at a stage after he had beenfound guilty of the election offence. Mr. Fred de Silva will accordinglybe granted the opportunity of being heard and of giving and callingevidence under article 82 (2) before the decision on the petition is givenunder article 81.
The second point for decision is whether the phrase “ an opportunityof being heard and of giving and calling evidence ” under article 82 (2)includes the right to cross-examine the witnesses called by the petitioners.I can find no reported case where the opportunity to cross-examine hasbeen given under that paragraph or any other paragraph similarlyworded, with the exception of an English case reported in 6 O’Malleyand Hardcastle, page 194, but in that case the respondent abandonedhis defence of the case during the course of the proceedings, and accord-ingly, the person against whom allegations of election offences werebeing made was left to fight the battle for himself. That is not the casehere.. I cannot construe the words “ an opportunity of being heard ”in paragraph 82 (2) to include the right to cross-examine witnesses, andit must be borne in mind that such rights as a person, not a party to theelection petition, has, are conferred upon him sloely by that article.