030-NLR-NLR-V-53-W.-C.-FERNANDO-Petitoner-and-L.-DE-SILVA-Respondent.pdf
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W. C. Fernando o. L. de Silva
1051Present: Rose C. J.
W. C. EERNANDO, Petitioner, and Ij. DE SILVA, Respondent
S. C. 100—In the Matter of an Application for a Writ ofQuo Warranto on the Member for Ward No. 8, Urban Council,
Moratuwa
Quo Warranto—Election of member of Urban ■ Council—Spiritual intimidation ofvoters—Ground for disqualification—Criminal prosecution is no alternativeremedy—Local Authorities Elections Ordinance, No. 53 of 1946.
A writ of quo warranto would lie to invalidate an election held under theLocal Authorities Elections Ordinance if spiritual intimidation of the voterscan be proved. In such a case, an alternative remedy cannot be said tobe available to the petitioner in prosecuting the person or persons responsiblefor the intimidation, if the prosecution would not necessarily assist thepetitioner in the avoidance of the election.
. An election pamphlet contained words meaning that religious bodies ingeneral and in particular the Homan Catholic Church had stated in clearterms that candidates of a certain political party and their sympathisers shouldnot be voted for. It did not, however, hold "out any threat or inducementwhich could be reasonably said to operate as undue influence upon Catholicor any other members of the electorate.
Held, that there was no spiritual intimidation of the voters.
Thus was an application for a writ of quo tcarranto on a member ofthe Urban Council, Moratuwa.
H. V. Perera, K. C., with D. S. Jayawickrcme, Sain P. C. Fernandoand G. T. Sarharawickreme, for" the petitioner.
C S. B. Kumarakulasinghe, with H. W. Jayewardene, for the respondent.
BOSE C.J.— IV. C. Fernando o. L. de Silva
155
November 8, 1951. Bose C.J.—
On 9th December, 1950, an election was held under the provisions ofthe Local Authorities Elections Ordinance (No. 53 of 1946) for WardNo. 8 of the Urban Council, Moratuwa. Elections were also held onthe same day for the remaining 11 wards of Moratuwa. The candidatesfor Ward No 8 were Mr. Leonard de Mel who polled 573 votes and therespondent who polled 934 votes. The latter was therefore declaredelected.
The petitioner who is a registered voter of Ward No. 8 of the MoratuwaUrban Council prays for the issue of a mandate in the nature of a Writof Quo Warranto on the respondent to show by what authority heexercises the office of member for Ward No. 8 for the Urban Council,Moratuwa, and for a declaration that the election of the respondentto the said office is void.
The petitioner relies on two matters, a sermon alleged to have beenpreached by the Bev. Fr. Jerome de Silva at the St. Joseph’s Church,Moratuwa, shortly before the election and a pamphlet (P 1) which wasdistributed on behalf of the respondent to a number of electors a. dayor two before the polling day. He contends that the joint effect ofthe sermon and the pamphlet was to deprive the considerable Catholicportion of the electorate of Ward No. 8 of their freedom of choice intheir selectionof acandidate, in that unduespiritualinfluence was
exercised upon them, and that therefore the present matter falls withinthat class of case in which spiritual intimidation has been held toinvalidate an election.
The principles applicable to such cases can be extracted froma number of Irish cases 1 and are summarized in Mr. Bogers’ hook onelections (20th edition) at page 347. These principles have beenrestated and applied in this country by Soertsz J. in Piyadasa v.Goonesinha 2. It is true that the facts of the latter case had to do withgeneral briberyandundue influence but theprinciplesthere stated
would seem also to be applicable to a case in which spiritual intimidationwas alleged. The same principle was applied by Hearne J.—in a casein which general bribery was alleged—in Wadugodapitiya v. Ismail *.
The respondent raises a preliminary. objection that the relief prayedfor should in any event be refused for the reason that this court doesnot as a rule exercise its discretion in favour of a petitioner, in a matterof this nature,whenan alternative remedy isavailable.It seems to
me, however,thatthis objection cannot besustainedbecause the
alternative remedy suggested, namely a prosecution of the person orpersons responsible for the printing and publishing of the pamphlet,would not necessarily assist the petitioner in the avoidance of theelection, which is the particular form of relief in which he is principallyinterested'.
1 Galway (1872) 2 O’ M. <b H. p. 40.'
North Durham (1874) 2 O' M. <k B. p. 152.
South Meath <Cr North Meath cooes (1892) 4 O’ M. <b H. 130, 185.
North Louth (1911) 6 O’ M. <b B. p. 103.
Down (1880) 3 O' M. ds H. p. 115.
(1941) 42 N. L. R. 339 at page 342.
(1944) 45 N. L. R. 304 at page .305.
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BOSE C.J.— W. C. Fernando v. L. de Silva
The question of the sermon must first be examined. There was aconflict of evidence both as to the date or dates on which the sermonwas delivered and the nature of the admonition that was containedin it. I prefer the Rev. Fr. Jerome’s version of both matters and Itherefore find that the sermon was preached at St. Joseph’s Churchon Sunday, the 26th of November, 1950, and only on that occasion andthat the preacher reminded the congregation that according to theinstructions of the Pope Catholics cannot in ■ conscience vote for aCommunist or Samasamajist, as the Communist and Samasamajistparties were fundamentally opposed to all religions; moreover, thatany one voting for a Communist or Samasamajist would therebycommit a mortal sin and would have to disclose it in his confession.
The witness denies, and I accept his denial, that he referred to leftist■“ sympathisers
It is to be noted that the sermon cannot be considered to be applicableto Mr. Leonard de Mel—nor was the contrary contended on behalf of thepetitioner—'for the reason that Mr. de Mel himself does not profess to be amember of either the Communist or the Samasamajist party and is amember of the Anglican church. As far as the sermon is concerned,therefore, there is no suggestion that any Catholic voting for Mr. de Melon 9th December, 1950, would commit a mortal sin.
The pamphlet Pi must now be considered. By paragraph 11 of hisaffidavit sworn on the 3rd of May, 1951, the respondent admits the publi-cation and distribution of PI by his agents. I accept the evidence ofTitus Simon Fernando that on the morning of'the 7th of December, 1950, he■distributed some 200 of these pamphlets to some 75 houses in the ward.These pamphlets were printed in English on one side and Sinhalese on theother and I am satisfied that the English rendering is, in effect, a faithfultranslation of the Sinhalese version.
The English version of the pamphlet is as follows: —
" To the Constituents of the Uyana Ward.
“ In a few days time you will go to the polls to elect your represen-tative in the Urban Council. This is a sacred duty and your decisionshould be made with the greatest care. There are definite signs thatevil measures are being designed to either influence your decision or toprevent you from attending the polls. I would appeal to you to bewary and not to fall into such evil traps. Wealth and power should notbe allowed to cramp your soul and astray you from your path of duty.Your choice must fall on that person who can represent you well. Heshould be one who is accessible to all and one whose innate desire isto serve the people and the country. Intelligence, ability and pastservices should be guiding fafctors in making your selection. Youmust examine the past services of the candidates. The good and badmust be carefully weighed. You should not rely on mere promises for 'the future.
“ We must be extremely earefull in not supporting leftists and theirsympathisers. The leftists have put forward candidates to all wardsexcept Uyana. The reason is obvious. No leftist candidate was
BOSE C.J.—W. C. Fernando v. L. de Silva
167
put against the sitting member as Mr. Leonard de Mel is asympathiser and a supporter of their party. He is frequently seen■with the leftists. Messrsi R. P. Fernando and M. E. Fernandoarehis camp-followers. AlthoughMr.de Melcallshimself an
Independent Socialist hisactions clearly indicate that he is
asupporter of the leftists.His conduct at thelast
General Elections is still fresh in our memories. All religiousbodies in general and the Roman Catholic Church in particular haveexpressed in unequivocal terms the manner in which the leftists and theirsympathisers should be treated. I hope the constituents of Uyana willbear these in mind and select the proper person.
Yours sincerely.
Lloyd Fernando.
Uyana,
Moratuwa. ”
It is the second paragraph of which the petitioner complaints. It shouldbe noted that the pamphlet contains no reference to mortal sin and, as hasalready been observed, the sermon at St. Joseph’s Church, which doesrefer to mortal sin, contains no reference to Mr. de Mel. It is, however,suggested on behalf of the petitioner that by falsely stating that Mr. de Melis a sympathiser of the leftist and by linking that false statement with thestatement of the attitude adopted by all religious bodies and in particularthe Roman Catholic Church towards leftists and their sympathisers,the respondent is in effect, having regard to the recent sermon at St.Joseph’s Church, employing a device to deceive the Catholic element of theelectorate into believing that Fr. Jerome’s sermon applied to Mr. de Meland that any one voting for him would thereby be committing a mortalsin.
It thus becomes necessary to examine carefully the statements made inthe second paragraph of the pamphlet to see if they can fairly be inter-preted in the sense alleged by the petitioner. As regards the statementthat Mr. de Mel was a sympathiser and supporter of the leftists, it iscommon ground between the parties, and I find as a fact, that the electionsin all the wards were not conducted on a religious platform at all but, forthe most part at any rate, on two parochial issues, the administration of thehousing scheme by the respondent, the out-going chairman of the council,and the question as to whether Moratuwa should acquire municipal status.On both these issues Mr. de Mel, on his own showing, adopted the leftistplatform, that is to say he criticized the respondent’s administration ofthe housing scheme and opposed the acquisition of municipal status.
That being so, it seems to me to be permissible for his opponent to sayin a political pamphlet and for the purpose of that particular election thatMr. de Mel was a leftist sympathiser or supporter. Moreover there isevidence, which I accept, that so soon as 'the election was over Mr. de Melactively engaged himself in forwarding the candidature of Mr. R. P.Fernando, who is mentioned in P 1 and who is an established memberof the Samasamajist parly, for the chairmanship of the council, in■opposition to the respondent.
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John Perera v. Weerasinghe
The second substantial matter that is complained of is the statement** All religious bodies in general and the Roman Catholic Church inparticular have expressed in unequivocal terms the manner in whichthe leftists and their sympathisers should be treated. ” It should benoted in this passage that no reference is made and no threat held out tothe voter. It is the candidate only who is referred to. In my opinio.ithe words complained of- mean in their present context no more thanthat religious bodies in general and in particular the Roman CatholicChurch have stated in clear terms that leftists and their sympathisersshould not be voted for.
On the view that I take of the facts, therefore, I am- of the opinionthat the pamphlet holds out no threat or inducement which can reason-ably be said to operate as undue influence upon Catholic or any othermembers of the electorate. Nor, as has already been indicated, does•Fr. Jerome’s sermon have any application to Mr. de Mel,
Having regard therefore to my view of the correct interpretation ofthe pamphlet, I am not prepared to accede to the proposition that thepublishing and distribution of this pamphlet amounted to a fraudulent-device in the sense contended for by the petitioner.
That being so, it is in my opinion unnecessary to consider the generalquestion, which was referred to in argument, as to whether and in whatcircumstances a directive from Rome, of the type which has beenconsidered in the present matter, either in itself or as expounded bysome dignitary of the Catholic Church in Ceylon, might invalidatean election in an electoral district in which there is a considerable Catholicvote on the ground that the Catholic voters had been deprived of theirfreedom of choice.
For the reasons that I have given the application must be refused andthe rule discharged. The petitioner will pay the costs of theseproceedings.
Application refused.