016-SLLR-SLLR-1985-V2-JAYASINGHE-v.-JAYAKODY-AND-OTHERS.pdf
77
CA
Pathirana v. The, State (Seneviratne. J)
JAYAStNGHE
v.JAYAKODY'AND OTHERS
SUPREME COURT.
SHARVANANDA, C.J., WANASUNDERA. j„ COLIN-THOME. J., ATUKORALE. J. ANDL. H. DE ALWIS, J.
S.C. ELECTION PETITION – APPEAL No. 4/84.
C.A. No. 3/83.
FEBRUARY 25. 26. 27 AND 28 AND MARCH 1. 4. 5. 7 AND 8. 1985.
Election Petition – Sections 80A..80B,. 80C of the Ceylon'(Parliamentary Elections)Order-in-Council 1946 as amended by Act No. 9 of 1970- Rule 12 of theParliamentary Election Petition Rules 1946 as amended by Act No. 9 of 1970 of theThird Schedule to the Order-in-Council – Non-joinder of parties -Security – Affidavit – Effect of defective affidavit – Full particulars – Power ofamendment.
The petitioner challenged the election of the 1 st respondent to the Mahara seat at theParliamentary Election held on May 18, 1983 on the grounds that –
The corrupt practice of undue influence was committed by the 2nd and 3rdrespondents as agents of the 1st respondent. 2
2.By reason of general intimidation (of which 14 instances were particularised ofwhich three were acts of undue influence committed by Suranimala Rajapakse, S. D.Tennison Wimalaratne and Jayantha Rajapakse and three were instances of assaultsand threats by several supporters of the 1st respondent) or other misconduct (like.
78Sri Lanka Law Reports[1985) 2 Sri L. R.
organised impersonation or other circumstances like arrest and detention of pollingagents and one Chief Organiser. Police and officials permitting entry of unauthorisedpersons into polling booths and refusal of loudspeaker permits) the majority of theelectors may have been prevented from electing the candidate whom they preferred.
By reason of non-compliance with the provisions of the Ceylon (ParliamentaryElections) Order-in-CouncH 1946 relating to elections and with the principles of suchprovisions the results of the election were affected and under this ground reference wasmade to the fact that the votes counted in three ballot boxqs did not tally with thenumber of ballot papers issued.
Full particulars of the several corrupt practices alleged had not been set out.
Of the four preliminary objections the Election Judge upheld three and dismissed thepetition:
There was non-joinder of Suranimala Rajapakse, S. D. Tennison Wimalaratne andJayantha Rajapakse as respondents as required by section 80A (1) (b) of the CeylonParliamentary Elections (Order in Council) as amended by Act No. 9 of 1970.
The security lodged was insufficient in terms of Rule 12 (2) of the ParliamentaryElection Petition Rules 1946 as amended by Act No. 9 of 1970 set out in the ThirdSchedule to the Order in Council..
The affidavit was defective in terms of section 80B (d) of the Order in Council.Held –
The grounds on which an election can be avoided are set out in section'77 of theOrder in Council.
There is a distinction between 'charge' and 'ground' ii new Rule 12 (2) of theThird Schedule to the Ceylon (Parliamentary Elections) Order-in-Council 1946.There can be several charges under each distinct ground and such charges attractsecurity. The first charge on each distinct ground attracts Rs. 5,000 as security andeach additional charge on the same ground attracts Rs. 2,500.
There is only one single ground of avoidance under section 77 (a) namely theprevention or likely preventing of free voting of which the components enumeratedin the section are general bribery, general treating or general intimidation or othermisconduct or other circumstances. Thus the first charge, namely, general briberyattracts Rs. 5.000 as security and every additional charge of general bribery orgeneral treating or general intimidation attracts Rs. 2.500. Also every allegation ofmisconduct and every distinct circumstance under other circumstances wouldconstitute additional charges.
Non-compliance with the provisions relating to the conduct of elections and thefailure to conduct the election in accordance with the principles of such provisionsconstitute a ground of avoidance and there being one charge on this ground thesecurity under this head would be Rs. 5.000.
SCJayasinghe v. Jayakody79
(Wanasundera, J. dissenting):
The Election Judge applied the right principles of computation of security andcorrectly decided that the security required was.Rs. 52.500 whereas the security
. deposited was only R$. 50,000.
Rule 12 (3) of the Rules set out in the Third Schedule stipulates that no furtherproceedings should be heard on the petition.if the security required_is not furnished.Hence the dismissal of the petition on this ground by the Election Judge wascorrect.
Held further (unanimously):
Suranimala Rajapakse, S. D. Tennison Wimalaratne and Jayantha Rajapakse werenot alleged to be agents of the 1 st respondent nor has it been alleged that the corruptpractice alleged to have been committed by them was done with the knowledge orconsent of the 1st respondent. Proof of the said corrupt practice is not by itselfsufficient to avoid the election. It has to be further established that the majority of theelectors were prevented from electing the candidate whom they preferred by the saidacts of corrupt practice. Hence they need not have been joined as respondents. Onlythose persons should be joined as respondents to4he petition whose acts by itselfrender die election void. There must be a nexus of cause and effect between the;offence complained of and the prayer for the avoidance of the election.
The petitioner cannot be expected to mention the names of persons whom hecannot identify or whose names he does not know. Hence he cannot be.faulted for notnaming the offender in regard to the assaults and threats:
Although the affidavit accompanying the petition was defective in that it includedaverments based on information received from others the petition should not have beendismissed on this ground of defect in the verification. The allegation of corrupt practicecannot be ignored merely on this ground of defect in the verification because the formof the mandatory affidavit is not prescribed and it is not a requirement of law that thesource of information or the ground of the deponent's belief, should be set out. Hencethe dismissal of the petition on the ground that the affidavit was bad is wrong. 5
(5)The petitioner has furnished as full particulars as he could. If more particulars wereneeded in the opinion of the Judge recourse could be had to the Judge's power ofamendment under section 80C (i) of the Order in Council.
Case referred to:
k>raFred£.deSHva(1949)51NLfi55.57.
APPEAL from the judgment of the Election Judge.
Nimal Senanayake, P.C.. with Sabya Mathgw. NimalSiripala de Sitva.K Balapatabendi,Sanath Jayatilleke, Mrs. A B. Dissanayake. L M. Samarasingbe, and Miss A. D. D. N.Teiespha. for the petitioner-appellant
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George Candappa. P.C. with Ben Eliyathamby, Daya Pelpola and RonaldPerera for 1 strespondent.
2nd respondent absent and unrepresented.
K. N. Choksy. P C. with Daya 'Pelpola. Lakshman Perera and Ronald Perera lor the 3rdrespondent.
S.W. B. Wadugodapitiya. Additional Solicitor-General with N. Y. Cassie Chetty^S.C.for the 4th respondent-respondent.
Cur. adv. vult.
July. 8. 1985.
SHARVANANDA, fC. J.
The petitioner-appellant filed an election petition under the provisionsof Article -1 61E of'the Constitution as amended1 by the 5thAmendment !to the Constitution readrtogether with sections 79, 80,80A and 80B of the Ceylon (Parliamentary Elections) Orderrin-Council,to set aside the by-election to the Mahara Electoral District held on18.5.1983. The 1st respondent was, at the election, returned by amajority of 45 votes.
The petitioner-appellant alleged that" the election of the' 1strespondent was void in the grounds that:
The corrupt practice of undue influence was committed by theagents of the 1 $t respondent,
{b) By reason of general intimidation or other misconduct or othercircumstances-the majority of the electors may have beenprevented from electing the candidate whom they preferred .
Non-compliance with the provisions of the Ceylon (ParliamentaryElections) Order-in-Council 1946, relating to elections and thefailure to conduct elections in accordance with the principles ofsuch provisions, which non-compliance affected the reisults of theelection.
In his petition, he had joined as parties the 2nd and 3rd respondentswho he alleges as agents of the 1st respondent, committe'd thecorrupt practice of undue influence. In paragraph 3(a) as against the2nd respondent, he has alleged three distinct acts of undue influencecommitted oh three different persons who are voters. In paragraph38, he has alleged, as against the 3rd respondent, two separate actsof undue influence on the same person who is a voter.
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SCJayasinghe v. Jayakody (Shatvananda. C. J.)
Paragraph 4A contains an allegation that the majority of electorsmay have been prevented from electing .the candidate whom theypreferred by reason of general intimidation or other misconduct orother circumstances. In regard to general intimidation, the petitionerhas furnished 14 items or instances of intimidation. In. tegard to "othermisconduct", in paragraph 4 B, the petitioner has given 41 cases ofimpersonation and has stated that the said acts of impersonation andnumerous other acts of impersonation of electors were organised* bythe '1st respondent’s supporters and facilitated by. several policeofficers and members of the official staff at polling stations. Inparagraph 4 C, the petitioner has set out matters that constitute"other circumstances", In.paragraph 4C{i) it'is alleged that 31’pollingagents of the Sri Lanka. Freedom Party candidate'1 attached to .12polling booths were arrested by the Veyangoda' and NittambuwaPolice on the election day at about 4 a m. andbeld in custody forseveral hours after the polling had commenced until pre-noon andthereby they were unable to perform their functions ; that theirdetention facilitated impersonation, demoralised the sympathisers ofthe S.L.F.P. and created the impression that government machinerycould be used against persons sympathetic to or espousing the
S.L.F.P. cause. In paragraph 4C(ii), the petitioner alleges thatapplications for loudspeaker permits to hold three public meetings ofthe S.L.F.P. were refused by the police officers anxious to support theU.N.P. In paragraph 4C(iii)(a), the. petitioner complains that policeofficers throughout the electorate harassed and threatened the
S.L.F.P. party organisers and supporters throughout the electioncampaign and on ..election day, that they permitted unauthorisedpersons to enter polling boothsand to intimidate electors in the pollingqueues (4C)(iii)(b), that they unlawfully arrested the Chief Organiserfor the S.L.F.P. in Uruval Peruwa area, one Reggie Ranatunga, on
and held him in unlawful custody and that this was done inorder to prevent him from carrying out his functions and to dissuadeother organisers and supporters of the S.L.F.P. – 4{C)(iii)(c).
finally in paragraph 5, the petitioner makes the allegation, that therewas non-compliance with the provisions of the ElectionsOrder-in-Council. which non-compliance has affected the results ofthe election. Three instances are set out-a ballot box from Netbuduwapolling booth contained 49 ballot.papers more than the number issuedat the polling station ; a ballot bbx from lhala Karagahamuna pollingbooth contained one ballot paper less than the total issued at the
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polling station , a ballot box from Kahatana polling booth containedone ballot paper less than the total issued at the polling station.
The petitioner filed his own affidavit to verify the allegations of factstated by him in his petition. He deposited Rs. 50,000 as security.
At the hearing of.the election petition four preliminary objectionswere raised on behalf of the 1 st, 2nd and 3rd respondents-
Sufficient security has not been given by the petitioner.
Persons required to be joined as respondents to the petitionhave not been joined.
. 3. The petition has failed to set out full particulars of the severalcorrupt practices alleged by the petitioner.
4. The affidavit filed by the petitioner is inadequate.
The Election Judge upheld the preliminary objections-
That sufficient security has not been given by the petitioner,
That persons required to join as respondents to the petition havenot been joined, –
The affidavit filed by the petitioner is defective,
and has dismissed the Election Petition. The petitioner has preferredthis appeal from the said order of dismissal. i
i shall first deal with the holding of the Election Judge that thepetitioner ■ has failed to join as respondent to his petition personsrequired to be joined in terms of Section 80 A (1 )(b) of the Ceylon(Parliamentary Elections) Order-in-Council, 1946 and thatnon-compliance with the requirement invalidates the entire petition.(All references in this judgment to sections are references to sectionsin the Ceylon (Parliamentary Elections) Order-in-Council 1946.)Section 80A( 1) provides 'A petitioner shall join as respondents to hiselection petition-
fa) where the petition, in addition to claiming that the election of allor any of the returned candidates is void or was undue, claims afurther declaration that he himself or any other candidate hasbeen duly elected, all the contesting candidates, other than thepetitioner, and where no such further declaration is claimed, allthe returned candidates ; and
SCJayasinghe v. Jayakody (Sharvananda. C.J.)83
any other candidate or person against whom allegations of anycorrupt or illegal practice are made in the petition.
Section 80A (1) in clear premptory terms obligates the petitioner tojoin as respondents to his petition not only the returned candidate butalso any. other candidate or person against whom allegations ofcorrupt or illegal practice are made in the petition. The petitioner hasaccordingly, in this petition joined not only, the 1st respondent, thereturned candidate, but also the 2nd and 3rd respondents who healleges have committed the corrupt practice of undue influence asagents of the 1st respondent. He has specifically pleaded that theelection of the 1st respondent is void on the ground of corruptpractice of undue influence committed by the 2nd and 3rdrespondents, agents of the 1 st respondent.
In paragraph 4A the petitioner has further alleged that by reason ofgeneral intimidation the majority of electors may have been prevented. from electing the candidate whom they preferred and that hence theelection of the 1st respondent was void. He has set out fourteeninstances of general intimidation. Paragraph 4A (iv), (viiij and {ix> arethree such instances. In each of these the petitioner mentions thenames of the persons alleged to have committed the acts statedtherein : 4
4 la) (iv)
Name
DatePlace
Act
Suranimala
Rajapakse
18.5.83At weboda near
at aboutthe polling booth
2.30of Weboda
p.m.North
AssaultingAlahakoon
Appuhamillage Somasiri who wasan organiser of the Sri LankaFreedom Party in the presence ofseveral electors, to instil'fear intothe minds of several electors whowere present and to place themunder duress.
4 (a) (viii)
S. D. TennisonWimalaratneUNP supporterand anotherUNP supporter
18.5.83 At EnderamuDa Using force on one Ratnasena, a
supporter of the SLFP. The attackon the said Ratnasena wasdirected to intimidate and toinduce electors favourable to theSri Lanka Freedom Party torefrain from voting.
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Name4 (at (ix) Date Place Act
Jayantha 18.5.83 At Buthpitiya: Jayantha Rajapakse fired two
Rajapakse and Malwathu shots killing one Nimal Premasiri a
several other Hiripitiya SLFP supporter standing very
supporters ofthe 1strespondent Public Road close to Wijaya Kumaranatungathe SLFP' candidate in order toinstil fear into the minds of
several electors present and toplace them under duress and toprevent them from voting. Theother supporters of the 1strespondent who came, withJayantha Rajapkse threatened toassault with dubs and swords thesupporters of the SLFP candidatein order to instil fear into theminds of several electors presentand to place them under duressand to prevent them from voting.
It was not the case of the petitioner and he has not averred that theaforesaid acts of undue influence were committed by agents of the1st respondent or with the knowledge or consent of the 1strespondent
It was the contention of counsel appearing for the 1 st, 2nd and 3rdrespondents that since these items disclose allegations of corruptpractice of undue influence against persons other than therespondents cited, they should have been joined as respondents tothe petition and since the petitioner has failed to comply with themandatory provision of section 80A (1) (t>) the petition was bad andshould be rejected.
The Election Judge has accepted this contention that the aforesaid
Suranimala Rajapakse. (ii) S. B. Tennison Wimalaratne and (iii)Jayantha Rajapakse, referred to in paragraph 4(a) of the petition,should have been joined as respondents as allegations of corruptpractice have been made against them in the petition.
In appeal, Mr. Senanayake contended that the Election Judge hasmisdirected himself in construing the word 'allegation' in paragraph80A(1) (b) to mean an assertion or averment. According to theElection'Judge every person against whom it is asserted or averred forwhatever purpose, that he had committed a corrupt or illegal practicein the petition has to be joined as a respondent. Mr. Senanayake has
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Jayasinghe v. Jayakody (Sharvananda. C.J.)
85
sought to put a restricted interpretation upon the word 'allegation', insection 80A (1) (£>). According to him section 80A (1) (b) should beread as 'any other candidate or person against whom allegations ofany corrupt or illegal practice such as would avoid the election aremade in the petition. He submitted that in the context of electionpetitions the meaning of the term allegation' is well settled : "everyallegation which, if proved, would suffice to avoid an election on any ofthe grounds of avoidance enumerated in section 77. should be treatedas a charge within the meaning of Rule 12." (Per Wimalaratne, J. inElection Appeal 1, 2 and 3 of 1977). He urged that the word'allegation' in section 80A (1) (£») should be construed in relation tothe concept of 'charge'. He referred to the words in section 83 (1),proviso (a) –
"an election petition questioning the return or the election upon theground of a corrupt practice and specifically alleging. . ." and thewords in section 83 (2) 'an election petition presented in due timemay, for the purpose of questioning the return of the election uponan allegation of corrupt or illegal practice' and submitted that theallegation' in section 80A (1} (b) is referable to a corrupt practicewhich avoids the election.
Mr. Senanayake submitted that only a corrupt practice committed inconnection with the election by the candidate, or with his knowledgeor consent, or by any agent of the candidate will invalidate anelection – section 77c, and that a corrupt practice committed by anyother person without the knowledge or consent of the candidate willnot be a ground for avoidance of an election and will not be sufficientto constitute a charge. He drew attention to section 80B whichrequires an election petition to contain a concise statement of thematerial facts on which the petitioner relies and to set forth fullparticulars of any corrupt practice that the petitioner alleges, includingas full a statement as possible of the names of the parties alleged tohave committed such corrupt practice and date and place of thecommission of such practice. He elucidated that by the averments inparagraph 4 of the Election Petition, the petitioner'was seeking toavoid the election on the ground that by reason of general intimidationor other misconduct the majority of electors may have been preventedfrom electing the candidate whom they preferred. Section 77 of theOrder-in-Council provides that –
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"The election of a candidate as a Member shall be declared to bevoid on an election petition on any of the following grounds whichmay be proved to the satisfaction of the Election Judge, namely –
(a) that by reason of general bribery, general treating or generalintimidation, or other misconduct, or other circumstances,whether similar to those before enumerated or not, the majorityof electors were or may have been prevented from electing thecandidate whom they preferred …"
According to him ‘general intimidation- consists of a series oraggregation of acts of undue influence, and that each one .of theallegations in paragraph 4 {a} of the petition may constitute acts ofundue influence in terms of section 56 (1). He admitted that each oneof the acts referred to in paragraph 4 (a) in the petition constituted acorrupt practice, in terms of section 58(1) (£>). He urged that theseveral acts of undue influence pleaded in paragraph 4 (a) generatedgeneral intimidation- and that they had the consequence ofpreventing the majority of electors from electing the candidate whomthey preferred (section 77 (a». He submitted that to establish thegrounds set out in section 77 (a) it was not sufficient to establishindividual acts of undue influence. The petitioner had to establish thatthe effect of the several acts of undue influence was to prevent themajority of electors from electing a candidate whom they preferred.His case was that when a petitioner seeks to found his petition on theground of 'general intimidation- under section 77 (a), he is notcharging anybody with the commission of any corrupt practice,though he incidentally had to prove a number of acts of undueinfluence to establish that ground under section 77 (a). It wastherefore not necessary for him to join the persons who hadcommitted the acts of intimidation. Mr. Senanayake's submission inshort, was that section 80A (1) [b] requires that the petitioner shouldjoin as parties to the election petition only the returned candidate andany agent who commits a corrupt practice and any other person whocommits a corrupt practice with the knowledge or consent of thecandidate. According to him section 80 A does not require the joiningof persons as respondents whose alleged acts of corrupt practice willnot be a ground for invalidating the election. He pointed out that if theinterpretation that he contends for is not given to section 80A(1) (b)then great inconvenience will be caused. He gave as illustration the‘case of general intimidation or general bribery where fifty instances ofsuch corrupt practice are alleged in the petition. The petitioner would
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then have to join the fifty persons as respondents to the petition andthe proceedings will become unmanageable. Counsel for therespondents on the other hand argued that the legislature has usedthe word 'allegation' in the sense of an 'assertion' or 'averment' andthat is the meaning that should be given to the word 'allegation' insection 80A (1) (£>). They submitted that since the petitioner had inparagraph 4 (a) (iv), (viii) and (ix) made allegations that SuranimalaRajapakse, Tennison Wimalaratne and Jayantha Rajapakse hadcommitted the corrupt practices of undue influence, they should havebeen joined as parties.
Mr. Choksy submitted when a charge of general intimidation isalleged in a petition and several instances are relied upon tosubstantiate the charge, the court has to examine whether any suchinstance discloses an allegation of corrupt practice against anyperson. He referred to the dual functions of an Election Judge at theconclusion of the trial (a) he will have to make a determination whetherthe election was void or not and also (b) make a report whether anycorrupt practice had been committed by the candidate or with hisknowledge and consent or by his agent, and whether any person hadbeen proved at the trial to be guilty of any corrupt or illegal practice(Sections 81 and 82). He said that the hazard of being reported to thePresident rendered obligatory on the petitioner the joining asrespondents to his petition all persons against whom he was makingallegations of any corrupt practice in the petition (Section 80A(1) (b)).
The Election Judge has agreed with Counsel for the respondentsthat the term 'allegation' in section 80A(1) (b) is used in the sense of'assertion' or 'averment' and has held that in deciding this questionwhether a person should be made a party or not, one has to look atthe petition to see whether it discloses any allegation of corruptpractice against such person and that the court cannot be controlledby the purpose or reason given by the petitioner for making specificcharges of corrupt practice of undue influence in the petition, whetherto establish a charge of corrupt practice by an agent or to establishgeneral intimidation such as may have prevented the majority ofelectors from electing the candidate whom they preferred. Accordingto him whenever there are allegations that persons exercised undueinfluence then such persons have to be impleaded as respondents,irrespective of their nexus to the relief claimed by the petitioner.
Section 80A(1) (b) cannot be looked at in isolation. One has toappreciate the scheme relating to election petitions to give the correct
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answer as to who are the persons who ought to be joined asrespondents in terms of that section.
Section 77 spells out the grounds for the avoidance of an electionon an election petition.
Section 77 (a) provides that an election shall be declared void onthe ground that by reason of genera! bribery, general intimidation orother misconduct, the majority of electors were or may have beenprevented from electing the candidate whom they prefer.
Section 77 (c) provides that the election of the candidate shall bedeclared void on an election petition on the ground of corrupt practicecommitted in connection with the election by the candidate or with hisknowledge or consent or by any agent of the candidate.
Section 79 states as to who may present an election petition.
Section 80 sets out the relief which the petitioner may claim on anelection petition.
Section 80A sets out as to who shall be joined as respondents tothe election petition.
In my view section 80A is related to section 77, which sets out thegrounds for the avoidance of an election. The petitioner who claimsthat the election is void will have to base his claim on any one or moreof the grounds set out in section 77 and for the purpose he will haveto cite as respondents to his petition persons whose conductconstitutes the ground of avoidance set out in section 77 and forwhich the candidate is liable. The petitioner is only interested in havingthe election declared void on the charges made by him. The personjoined as respondent and the act which is alleged to vitiate the electionmust have a nexus to the relief sought. Thus when the election of the1st respondent is sought to be avoided on the ground of corruptpractice of undue influence committed by the agents of the 1strespondent (1) S. Rajakaruna, (2) Ranil Wickremasinghe, they had tobe joined as 2nd and 3rd respondents respectively. If the petitionersucceeds in proving any one of the corrupt practices referred to inparagraph 3 of the petition he succeeds in his election petition and theelection will be declared void. The corrupt practice, if established
committed by either 1 st (the returned candidate) or the 2nd or 3rd
respondents (the agents of the returned candidate) will be sufficient toavoid the election.
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Jayasinghe v. Jayakodv (Sharvananda, C.J.)
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On the other hand in paragraph 4 of this petition, the petitioner hasalso stated that the election of the 1 st respondent is void on the
ground that by reason of general intimidationthe majority of
electors may have been prevented from electing the candidate whomthey preferred. The petitioner then particularised in paragraph 4 (a)fourteen acts of undue influence which resulted in the generalintimidation complained of. Of these fourteen acts, three have beencommitted by the 2nd respondent, two by the 3rd respondent andfour by the 1 st respondent himself, then two by unnamed supportersof the 1st respondent, three by Suranimala Rajapakse, TennisonWimalaratne and Jayantha Rajapakse, third parties who are neither theagents of the 1st respondent nor persons who had committed theimpugned acts with the knowledge or consent of the 1 st respondent.The acts of corrupt practice alleged to have been committed by thelast category of persons viz : Suranimala Rajapakse, TennisonWimalaratne and Jayantha Rajapakse, cannot by themselvesconstitute grounds of avoidance of the election. In order to succeed inhis petition, the petitioner has got to prove a further ingredient viz :that the majority of electors may have been prevented from electingthe candidate whom they preferred, in order to succeed in his electionpetition.
The corrupt practice referred to in section 77 (c) has aconsequence different from that of the corrupt practice that may beexhibited by general intimidation under section 77 (a). If it is provedthat a corrupt practice had been committed by the returned candidateor an election agent or by any other person with the knowledge orconsent of the returned candidate, then the Election Judge has todeclare the election void. But if the corrupt practice had beencommitted by a person other than the persons mentioned in 77 (c),then it must be further established that majority of electors therebywere or may have been prevented from electing the candidate whomthey preferred, for the Election Judge to declare the election void. Inthe absence of an allegation that general intimidation has affected theresult of the election, pleading of the several acts of undue influencewhich individually or cumulatively constitute general intimidation isirrelevant to the relief prayed for by a petitioner under section 80. Theallegations in the petition have to be related to the relief sought andaccordingly in my view only those persons- need be joined asrespondents against whom charges of corrupt practice vitiating the •election are made in the petition.
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Section 82 relating to the report of the Election Judge draws thedistinction between the two categories of corrupt practice, foundedon the kind of impact it has on the determination under section 81.
corrupt practice committed by. or with the knowledge andconsent of any candidate at the election, or by his agent – thisaffects the validity of the election.
}b) the corrupt practice committed by other persons – .this will notvitiate the election.
In my view this distinction between the two categories of offendersin section 82 is based on the fact that all those who are mentioned insection 82 (a) would be necessary parties to the election petition interms of section 80A(1) (b). while the other class of offendersreferred to in section 82B would not be necessary parties and neednot be joined in the election petition and their nonjoinder will notaffect the proper constitution of the election petition.
Persons who are not necessary parties and therefore have not beenjoined as parties, will, under the proviso to section 82. before beingreported, be given an opportunity of being heard and of giving andcalling evidence to show why they should not be so reported.
But it was argued that, had they been parties to the electionpetition, they would have had the opportunity of showing, before theconclusion of the trial that they are not guilty of any corrupt practiceand they should not be placed under a handicap, as they would be, ofhaving to show cause under the proviso to section 82 after they havebeen proved without their being heard at the trial, to have been guiltyof a corrupt practice. I see the force of this submission. But in myview, it has to yield to the argument of inconvenience urged byMr. Senanayake. This submission will involve having trials within theelection trial and the proceedings will become unmanageable. Themain trial will miss its focus and the parties being not interested in themain trial will have to be helpless spectators of the trial. I prefer theconstruction urged by Mr. Senanayake as to who should be joined asparties under section 80A(1) (b) especially as the proviso to section82 provides as required by principles of natural justice for anopportunity of being heard, to those who had not been joined beforethey are reported.
The Election Judge is in error in holding that all those against whomallegations of corrupt practice are made, for whatever purpose, have• to be joined as respondents to the petition. In my view only thosepersons whose alleged acts of corrupt practice will, in terms of section
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77{c). vitiate the election will have to be joined as respondents inaddition to the returned candidate. On this construction of section80A (1) (b) 'any other candidate’ referred to in that section will meanany other candidate who is charged in the election petition with havingcommitted a corrupt practice such as would avoid the election interms of section 77(e). The reference to such candidate is significant.Any allegation against him of a corrupt practice must have somerelevancy to the prayer for the avoidance of the election.
In paragraph 4 (a) of his petition the petitioner alleges that by reasonof general intimidation the majority of electors may have beenprevented from electing a candidate whom they preferred and has setout fourteen instances or items in substantiation of the ground ofgeneral intimidation. Paragraph 4 – (iv), (viii) and (ix) refer to threesuch instances ; in each of these the petitioner mentioned the namesof the persons who are alleged to have committed the acts statedtherein. In paragraph 4 (a), (i) and (x) the petitioner has not specificallynamed any offender but has stated 'assaults and threats by severalsupporters of the 1 st respondent.” The petitioner cannot be expectedto mention the names of persons whom he cannot identify or whosenames he does not know. It is necessary to reproduce paragraphs4 (a) (iv), 4 (a) (viii) and 4 (a) (ix), to appreciate the question inissue
4 (a) (iv)
NameDate
Place
Act
Su rani malaRajapakse
18.5.83At Weboda near
at aboutthe polling booth
2.30of Weboda
p.m.North
AssaultingAlahakoon
Appuhamillage Somasiri who wasan organiser of the Sri LankaFreedom Party in the presence ofseveral electors, to instil fear intothe minds of several electors whowere present and to place themunder duress.
4 (a) (viii)
S. D. Tennison 18.5.83 At Enderamulla
Wimalaratne
UNP supporter
and another
UNP supporter
Using force on one Ratnasena asupporter of the SLFP. The attackon the said Ratnasena wasdirected to intimidate and toinduce electors favourable to theSri Lanka Freedom Party torefrain from voting.
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Name Date Place Act
4 fix)
JayanthaRajapakse andseveral othersupporters ofthe 1 strespondent. 18.5.83 At ButhpitiyaMalwatuHiripitiya PublicRoad Jayantha Rajapakse fired twoshots killing one Nimal Premasin aSLFP supporter standing veryclose to Wijaya Kumaranatungathe SLFP candidate in order toinstil fear into the minds ofseveral electors present and to
place them under duress and toprevent them from voting. Theother supporters of the 1strespondent who came withJayantha Rajapakse threatenedto assault with clubs and swordsthe supporters of the SLFPcandidate in order to instil fearinto the minds of several electorspresent and to place them underduress and to prevent them fromvoting.
The aforesaid three persons namely Suranimala Rajapakse, S. D.Tennison Wimalaratne and Jayantha Rajapakse were not alleged to bethe agents of the 1st respondent nor has it been alleged that thecorrupt practice alleged to have been committed by them was donewith the knowledge or consent of the 1st respondent. Proof of thesaid corrupt practice is not by itself sufficient to avoid the election. Ithas to be further established that the majority of the electors wereprevented from electing the candidate whom they preferred by thesaid acts of corrupt practice. Hence in my view they need not havebeen joined as respondents. In my view, only those persons should bejoined as respondents to the petition, whose acts by itself render theelection void. There must be a nexus of cause and effect between theoffence complained of and the prayer for the avoidance of theelection.
Objection regarding security
"that the security shall be an amount not less than Rs. 5,000 inElections) Order-in-Council 1946 provides that –
that the security shall be an amount not less than Rs. 5,000 inrespect of the 1 st charge constituting a distinct ground on whichthe petitioner relies, and a further amount of not less than
sc
Jayasinghev. Jayakody (Sharvaranda, C.J.j
93
Rs. 2,500 in respect of each additional charge constituting anysuch ground".
In the election appeals S.C. 1, 2 and 3 of 1977, it was held by amajority of four Judges constituting the Divisional Bench of five Judgesthat –
There is a distinction between 'charge' and 'ground' in the newRule 12 (2). A 'charge' is not the same thing as a 'ground' andcannot be equated with it.
The grounds on which an election can be avoided are found insection 77 of the Order-in-Council.
There can be several charges under each distinct ground andsuch charges attract security. The 1st charge on any onedistinct ground attracted Rs. 5,000 as security and eachadditional charge on the same ground attracted Rs. 2,500.
This view of the majority was accepted in S.C. Appeals No. 2 & 3 of1978 (Election Petition No. 10/77 -Avissawella.) The Supreme Courtagreed with the observations of Wimalaratne, J. that –
"every allegation which, if proved, would suffice to avoid anelection on any of the grounds of avoidance contained in section 77should be treated as a charge within the meaning of Rule 12, andeach such charge attracts security".
and with the observation of Samarawickrema, J. that –
"the word 'charge' has been applied to any allegation against thevalidity of an election". I
I agree with the Election Judge that there is only one single groundof avoidance under section 77 (a), namely the prevention or likelyprevention of free voting. That each component enumerated in section77 (a) namely –
“general bribery, general treating or general intimidation, or othermisconduct, or other circumstances'
which is alleged to have resulted in the majority of electors beingprevented from electing the candidate whom they preferred wouldconstitute a charge. The first charge, namely 'general bribery' attractsRs. 5,000 every additional charge of general bribery or generaltreating or general intimidation would attract Rs. 2,500.
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I agree with Wimalaratne, J.'s observation in the above case that –
"Under the category of 'other misconduct' there can be morethan one charge. So also under the category of 'othercircumstances' each distinct circumstance specified in the petition
will attract security 'other misconduct' or other
circumstances’ would constitute at least two other charges.”
It would appear from the material facts given in the petition morethan one type of "other circumstances" or 'other misconduct" may bedisclosed and each distinct type will constitute a separate chargeattracting security.
For a proper appreciation of the computation of the total amount ofsecurity that had to be deposited by the petitioner it is relevant toreproduce that part of the petition containing the allegations made bythe petitioner in his petition for the avoidance of the election.
"3. And your Petitioner says that the election of the 1strespondent is void on the ground that –
(A) the corrupt practice of undue influence was committed by anagent of the 1 st respondent – Sarathchandra Rajakaruna the 2ndrespondent above-named.
(i) 18.5.83
(ii) 18.5.83
(In) 18.5.83
Atabout Near Buthpitiya8.30 a m. polling booth
Atabout Near Buthpitiya7.30 a.m. polling booth
At about Near Buthpitiya10.00 a.m polling booth
By intimidating W A.Chandrasena Weerasuriya anelector by threats of bodily injuryto induce Chandrasena to refrainfrom voting and turned him awayfrom the polling booth atButhpitiya. Later he went back tovote but h;s vote had been castby an impersonator.
By intimidating U. B. KumaraPathirana an elector bythreatening to assault KumaraPathirana with clubs and iron barsin order to compel him to refrainfrom voting and forcing him to goaway without voting.
By intimidating D. K. Piyasena avoter at Mahara Electorate bythreatening to assault him withclubs and iron bars to compel himto refrain from voting and forcinghim to go away without voting.He came back to the pollingbooth and voted later.
sc
Jayasinghe v. Jayakody (Sharvananda, C.J.)
95
(B) The corrupt practice of undue influence was committed by anagent of the 1st respondent namely Ranil Wickremasinghe, the 3rdrespondent above-named on –
(i)
18.5.83
At about At Weboda near the2 30 p.m. polling booth ofWeboda North.
By exhorting about thirty personswho were with him to hit. kill, cuttyres and to catch the blue T-shirtfellow and not let him go(referring to AlahakoonAppuhamillage Somasiri who wasthe chief organiser for theNarangodapaluwa for SLFP). Theaforesaid acts of the 3rdrespondent were in order toprevent the free exercise of thefranchise by several electors whowitnessed the incident by placingthem under duress.
18.5.83
At aboutNear the Kadawata
3.30 p.m.Police Station on
the Kandy Road
By unlawfully using force onAlahakoon AppuhamillageSomasiri who was the Chief SLFPorganiserfor the
Narangodapaluwa (MaharaElectorate) and by grabbingAlahakoon's hand and dragginghim saying "Ado Pariah, weintend to teach you politics.' Theaforesaid acts of the 3rdrespondent were in order toprevent the free excercise of thefanchise by several electors whowitnessed the incident by placingthem under duress. AlahakoonAppuhamillage Somasiricomplained to the KadawataPolice who have deliberatelyfalsified the entry and in factdeleted the words 'Ado Pariah'and refused to take down thecomplaint referred to at3 (B) (i)and ordered AlahakoonAppuhamillage Somasiri to quitthe Mahara Electorate promptly,.
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[1985] 2 SriL.R.
4. (A) And your petitioner says that the election of KamalawarnaKumarasinghe Jayakody is void on the ground that by reasonof general intimidation or other misconduct or othercircumstances the majority of electors may have beenprevented from electing the candidate whom they preferredThe petitioner says that general intimidation resulted from :
Impersonation of theAt the polling booth ofVoters No.
following voters
(i>
Assaults andthreats ofseveral
supporters ofthe1st
respondent
18.5 83At Weboda
at aboutNorth inclose
2.30 p.m.proximityto the
WebodaNorth
Polling.
(i>)
Ranil 18 5.83 At Kadawata on
Wickremasmghe at about the Kandy Road
above named by 3.30 p.m. near the
himself. Kadawata PoliceStation.
(iii)
Ranil 18.5.83 At Weboda near
Wickremasighe at about the polling booth
and other 2.30 pm. of Weboda
persons North.
(iv)
Suranimala 18.5.83 At Weboda near
Rajapakse at about the polling booth
2.30 p.m. of Weboda
North.
Assault on several electors whowere with AlahakoonAppuhamillage Somasiri, whowas an organiser of SLFP andwho was with several electors,using hands and clubs andthreatening to give the sametreatment to those who wereknown to be SLFP supporters.
Grabbing the SLFP organiserAlahakoon AppuhamillageSomasiri by the hand anddragging him when he was in thecompany of several electors.
In an organised gang exhortingpeople in his gang to hit kill andcut tyres and grab the T-shirtfellow to instil fear into the mindsof several electors present and toplace them under duress.
AssaultingAlahakoon
Appuhamillage Somasiri who wasan organiser of the SLFP in thepresence of several electors whowere present and to place themunder duress.
sc
Jayasinghe v. Jayakody (Sharvananda, C.J.)
97
Impersonation of theAt the polling booth of
following voters
Voters No.
(v)
Saratchandra 18.5.83Rajakaruna the2nd Respondentabove-namedand otherpersons on hisbehall and at hisinstigation
At Buthpitiya By iniimidaiing W. A.polling booth Chandrasena Weerasuriya andseveral other electorsapproaching the polling boothwith threats and preventing thoseelectors from voting bythreatening to assault with clubsand iron bars and forcing them togo away without voting.
(vi|
SarachandraRajakaruna the2nd respondentabove-namedand otherpersons on hisbehalf and at hisinstigation
18.5 83 At Buthpitiyapolling booth
By intimidating U. G. KumaraPathirana an elector and severalother electors preventing withthreats of bodily injury andpreventing them from voting bythreatening to assault with clubsand iron bars and forcing him togo away without voting.
(vii 1
SarachandraRajakaruna the2nd respondentabove-namedand otherpersons on hisbehalf and at hisinstigation.
18.5.83 At Buthpitiyapolling booth.
By intimidating O. K. Piyasena anelector and several other electorspresent with threats of bodilyinjury by threatening to assaultthem with clubs and iron bars andforcing him to go away withoutvoting. In consequence of theaforesaid threats several otherelectors went away withoutvoting.
(vml
SD Tenison 18 5 83 At Enderamulla
Wimalaratne
UNP supporter
and another
UNP supporter.
Using force on one Ratnasena asupporter of the SLFP : the attackon the said Ratnasena wasdirected to intimidate and toinduce electors favourable to theSLFP to refrain from voting .
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[ 1985j 2 Sri L R.
Impersonation of theAt the polling booth ofVoters No.
following voters
(«)
Jayantha18.5.83
Rajapakse &several othersupporters ofthe1st
respondent.
At ButhpitiyaMalwatuHiripitiya PublicRoad
Jayantha Rajapakse fired twoshots killing one Nimal Premasiri aSLFP supporter standing veryclose to Wijaya Kumaranatungethe SLFP candidate in order toinstil fear into the minds ofseveral electors present and toplace them under duress and toprevent them from voting. Theother supporters of the 1strespondent who came withJayantha Rajapakse threatenedto assault with dubs and swordsthe supporters of the SLFPcandidate in order to instil fearinto the minds of several electorspresent and to place them underduress and to prevent them fromvoting.
(x)
Supporters ofthe1 st
Respondent.
Jayakody Maha Vidyalaya pollingbooth shouting loudly andbehaving in an aggressive mannerthereby placing electors underduress.
18.5.83 At KandeliyaddaPaluwa East.Jayakody MahaVidyalaya.
About 150 supporters of the 1 strespondent entered forcibly intothe polling booth of theKandaliyadda Paluwa East
sc
Jayasingtte v. Jayakody {Sharvananda, C J.)
99
Impersonation of theAt the polling booth ofVoters No.
following voters
|xi)
1st resondent 18.5.83andhis
supporters.
(xii|
1st respondent 18.5.83andhis
supporters.
Ixiii)
1st respondent 18.5.83andhis
supporters.
About 1/4 milefrom MaharaNugegodapolling booth.
About 1/4 milefrom
Kandaliyaddapolling booth.
At the MainSLFP ElectionOffice KalawattaRagama Road.
The 1st respondent and hissupporters assaulted K. A.Sirisena a SLFP supporter. The1st respondent and hissupporters dragged him into thejeep of the 1st respondent andforcibly took K. A. Sirisena to the1st respondent's residence ;having assaulted him again hewas chased away after removinghis clothes. The aforesaid act ofthe 1st respondent and hissupporters were in order toprevent the free exercise offranchise by several electors whowitnessed the incident by placingthem under duress.
The 1st respondent and hissupporters assaulted SunilWettawa a SLFP supporter and
dragged him into the 1strespondent's jeep ; the jeepdrove towards the 1strespondent's residence and thepeople in the ieep continued toassault Mr. Wettawa. Theaforesaid act of the 1strespondent and his supporterswere in order to prevent the freeexercise of franchise by severalelectors who witnessed theincident by placing them underduress.
1 st Respondent and hissupporters assaulted LalithWanigaratne a SLFP supporterand attempted to drag him to thejeep of the 1st respondent. Theaforesaid act of the 1strespondent and his supporterswere in order to prevent the freeexcercise of franchise of severalelectors who witnessed theincident by placing them under •duress.
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Sri Lanka Law Repons
[19851 2 Sri L.R.
Impersonation of theAt the polling booth ofVoters No.
following voters
(xiv)
1st Respondent 18.5.83andhis
supporters
ieep of the 1 st Respondent. Theaforesaid act of the 1stRespondent and his supporterswere in order to prevent the freeexcercise of franchise of severalelectors who witnessed theincident by placing them underduress.
At the MainS L.F.P ElectionOffice KalawatteRagama Road
1st Respondent and hissupporters assaulted JerimiesFernandopulle a SLFP supporterand attempted to drag him to the
4. (B) The Petitioner states that the following acts constitutedother misconduct.
Impersonation of theAt the polling booth ofVoters No.
following voters
1. Oandem Hewage WiemanPasgemanna165
Nilwala Pathirana UnnehelageMahara-Nugegoda688
Sediris
4.
41 Hettiarachchige
Silva Suneetha Mallika Sooriyapaluwa 363
42. Weerasinghe
Kamalawathie Arachchige Kandaliyadda Paluwa 1.520
The aforesaid acts of impersonation along with numerous otherimpersonation of electors was organised by the 1 st Respondent'ssupporters and facilitated by several Police Officers and members ofthe official staff at Polling Stations.
sc
Jayasinghe v. Jayakody fSharvananda. CJ.)
101
(4) (C) The petitioner states that the following matters constituteother circumstances referred to above :
The following polling agents of the SLFP candidates werearrested by officers from Veyangoda and NittambuwaPolice Stations on 18th May 1983 at about 4.00 a.m. andheld in custody for several hours after polling hadcommenced, thereby not being able to perform theirfunctions till the time shown below
Name of the Polling Agent Polling BoothTime of Arrival at
the Booth
1. P. L. Weerasinghe2 E. A. Piyasena
3.
4.
W. Jayakody
W. Dharmawardena
Ambagaspitiya
do.
Henegama-Katukurunda
do.
a.m.
am.
a.m.
a.m.
The detention of the polling agents resulted in :
The.facilitation of impersonation.
The demoralisation of sympathisers of the SLFPcandidates.
Creating the impression that Government machinery couldbe used against persons sympathetic to or espousing theSLFP cause.
Loudspeaker permits for holding of public meetings of the SriLanka Freedom Party were refused by Police Officers anxious tosupport the Government Party namely the United National Party.The details are set out below.
Application on To Police Station For Meeting at Refused
on
(a) 29.04.83 Weerangala Malwatu-
Hiripitiya 07.05.83
«J) 03.05.83 Kadawatie Enderamulla 07.05.83
(c) 03.05.83 Kadawatte Kadawane 07.05.83
Police Officers throughout the electorate –
harassed and threatened the Sri Lanka Freedom PartyOrganisers and supporters throughout the electioncampaign and on election day ;
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[1985] 2 Sri L .R.
permitted unauthorised persons to enter polling booths andto intimidate electors in the polling queues ;
<c) unlawfully arrested Reggie Ranatunga on 5th May. 1983and held him in unlawful custody in order to prevent himfrom carrying out of his functions of a Chief Organiser forthe S.L.F.P. in Uruval Peruwa area and to dissuade theother organisers and supporters of the S.L.F.P.
5. The petitioner states that the election of the 1st respondentaforesaid is void on the ground of non-compliance with the provisionsof the Ceylon (Parliamentary Elections) Order in Council 1946 relatingto elections and the failure to conduct the election in accordance withthe principles of such provisions which non compliance affected theresults of the election.
The petitioner states :
that ballot box from Natbuduwa polling booth contained 49ballot papers more than the number issued according to thereturn sent by the Senior Presiding Officer of that booth andannounced by him at the polling booth ;
that a ballot box from lhalakaragahamune polling boothcontained one ballot paper less than the total issued at thepolling station according to the announcement of the SeniorPresiding Officer and the returns made by him.
that a ballot box from Rahatara polling booth contained oneballot paper less than the total issued at that polling stationaccording to the announcement of the Senior Presiding Officerand the returns made by him.
The Election Judge has after a careful analysis of the severalsubmissions made by Counsel for the appellant-petitioner andrespondents computed the total amount of security that should havebeen furnished by the petitioner to be Rs. 52,500. The amount ofsecurity in fact deposited by the petitioner is Rs. 5Q.000. The ElectionJudge has held that the amount deposited is short by Rs. 2.500 andas Rule 12(3) states that no further proceedings should be heard onthe petition, if the security as stipulated is not deposited, he dismissed* the petition on that ground.
sc
Jayasinghe v. Jayakody (Sharvananda. C.J.)
103
The learned Election Judge's computation is as follows
Para 3 (a) {■} – 1 st charge of undue influence against the 2ndRespondent – Attracts
Para 3 (a) (ii)and (iii) – 2 additional charges of undue influenceagainst the 2nd Respondent – Attracts
Para 3 B (i) and (ii) -2 charges of undue influence against the3rd Respondent – Attracts
Para 4A- 1st charge of general intimidation on the distinctground of likely prevention of free voting – Attracts
Para 4A (v)-(vii) – 3 additional charges of undue influenceagainst the 2nd Respondent – Attracts
Para 4A (xi)-(xiv) – 4 charges of undue influence against the 1 stRespondent – Attracts
Para 4B – Misconduct – the 2nd charge on the distinctground of likely prevention of free voting – Attracts
Para 4C(i) — 1 st distinct type of "othercircumstances’ -Attracts
Rs. c.
00
00
00
007.50000
10.000.002.500 00
2.500.00
Para 4C(ii) & (iii)(a) and (c) – 2nd distinct type of 'othercircumstances' – Attracts
2.500 00
Para 4C (iii) (h) – 3rd distinct type of 'other
circupistances' – Attracts..2.500 00
Para 5 – 1st charge on the distinct ground of 'non compliance' . .5.000.00
Total
52.500.00
There was no controversy as regards paragraphs 3A(i) to (iii). 3B(i)to (ii) of the petition. There was also no controversy in regard toparagraph 5 of the petition. Mr. Senanayake referred to Rule 12(2):
'Security shall be an amount. … in respect of the 1st chargeconstituting a distinct ground on which the petitioner relies, and afurther amount … in respect of each additional chargeconstituting any such ground'
and submitted that the security is payable in respect of a charge whichthe petitioner relies to sustain his prayer. He stated that in paragraph4A the petitioner has set out the ground of general intimidation and inconnection therewith he has set out several items, some of which,might amount to acts of undue influence. His explanation is that thepetitioner is relying on the cumulative affect of the several incidentspleaded in paragraph 4(A) to establish the ground of prevention or
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(1985] 2 Sri L.R.
likely prevention of free voting. He said that the corrupt practices ofundue influence relied upon by the petitioner for the avoidance of theelection have been set out in paragraphs 3A and 3B of the petition. Hecontended that it was not open to the counsel for respondents toextract items pleaded under general intimidation and say that they aretantamount to corrupt practice of undue influence and thereforeattract security, for the reason that the petitioner is not relying onthose items to support his charge of corrupt practice.
The Election Judge did not agree with this submission of Mr.Senanayake. In my view, he is correct in rejecting this submission.
In appeal. Counsel for the petitioner submitted that Rule 12(2)confines the amount of security to charges on which the petitionerrelies. According to him, section 77(a) sets out one ground viz:prevention of free vote, and one of the means by which this could beeffected is by intimidation of a generalised nature. He said that thoughin paragraph 4(a) (v) to (vii) the 2nd respondent is alleged to havecommitted four separate acts of undue influence and in paragraph4(a) (xi) to (xiv) the 1st respondent (the returned candidate) to havecommitted four separate acts of undue influence, the petitioner wasnot seeking to avoid the election on the basis of the allegations in 4(a),(v) to (vii) and 4(a) (xi) to (xiv). He stated that since the petitioner wasnot relying on those charges to avoid the election, the petitioner wasnot obliged by Rule 12(2) to furnish security in respect of thosecharges. It is to be noted that each of these allegations contains all theingredients of the charge of corrupt practice of undue influencecommitted in connection with the election by the candidate or by anagent of the candidate sufficient, in terms of section 77B, to avoid theelection. The question arises whether the Election Judge is bound bythe charges preferred by the petitioner on the material facts furnishedby him in the petition and is inhibited from identifying the chargeswhich the averments reveal. Section 81 requires the Election Judge todetermine at the conclusion of the trial of an election petition whetherthe election was void. In terms of this section, if at the conclusion ofthe present election petition the Election Judge finds that any one ofthe allegations set out in 4(a), (v) to (vii) or 4(a) (xi) to (xiv) is proved tohave been committed he will have to hold that a corrupt practice hasbeen committed in connection with the election by the returnedcandidate (1 st respondent) or by the 2nd respondent, an agent of the1st respondent (vide paragraph 3 of the petition) and consequentlydetermine that the impugned election is void.
sc
Jayasinghe v. Jayakody (Sharvananda, C. J.)
105
Mr. Senanayake's reply was that section 81 does not givejurisdiction to the Election Judge to declare the election void on anyground or charge which had not been specifically relied on by thepetitioner in his petition for the avoidance of the election. I cannotaccept this limitation placed on the jurisdiction vested in the ElectionJudge by section 81. This section provides that'at the conclusion ofthe trial of an election petition the Election Judge shall determine . . .whether the election was void, and shall certify the determination inwriting under his hand." There is no warrant for reading into thissection the words "whether the petitioner has proved the charge reliedon by him and if so whether the election is void". The section does notplace any limitation on the Election Judge to declare void the election ifthe evidence on record led under any head establishes any one of thegrounds set out in section 77. The Election Judge's jurisdiction todetermine an election void is not confined to the charges preferred bythe petitioner. Section 81 read with section 77 obligates the ElectionJudge to declare void the election of the 1st respondent when acorrupt practice in connection with the election, whether relied on bythe petitioner or not has been proved to his satisfaction to have beencommitted by the 1 st respondent or by his agents, the 2nd or 3rdrespondent.
It is true the petitioner has pleaded in paragraph 4(a) the aforesaidacts of undue influence committed by the 2nd respondent and the 1 strespondent, in support of the ground of general intimidation and not inconnection with the charge of corrupt practice and has studiouslyabstained from labelling them as corrupt practice by the candidate orhis agent. But they could have, without any further avermentappropriately been included in paragraph 3 of the petition where thepetition sets out items of the corrupt practice of undue influencecommitted by the agents of the 1st respondent and been propersubject-matter of charges under section 77(c).
If Mr. Senanayake's submission is accepted it would enable thepetitioner to avoid furnishing security in respect of allegations ofcorrupt practice by the candidate or his agent by categorising them asinstances of general bribery, intimidation etc., while putting thecandidate and/or his agent in hazard of punitive consequences undersection 81 or 82. The candidate or his agent will then be put in asituation of having to defend themselves against the charges of suchcorrupt practice without the petitioner furnishing necessary security #for such charges. In my view this cannot be permitted. Under Rule
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(1985)2 SriLR.
12(2) to determine the grounds or charges on which the petitioner isasking relief court is not restricted to what he specifically alleges for hisground or charge in the petition but what are the grounds or chargeswhich the petition discloses. If the material facts on which thepetitioner relies exhibits a ground or charge for avoidance of anelection under section 77. irrespective of the fact whether thepetitioner has chosen to prefer a charge based on them, the petitionerwill have to give security for such charge. The petitioner relies on thefacts set out in his petition for the avoidance of the election and if thefacts so set out disclose a charge or ground for the avoidance of theelection, it is immaterial whether the petitioner has framed such acharge or ground for the avoidance of the election. The petitioner isrelying on facts which constitute a charge or ground and hence has togive security in respect of such charge or ground. The security is forthe benefit of the respondents and it is from their perspective as to thehazard they are put to that the amount of security has to becalculated.
The instances of undue influence given in 4A (ii) and (iii) are thesame as instances given in 3B (i) and (ii) and therefore do notconstitute new charges of undue influence.
I agree with the Election Judge that in respect of the matterspleaded in paragraph 4A of the petition the petitioner should havedeposited a total sum of Rs. 22,500.
The acts of impersonation pleaded in paragraph 4B of the petitionconstitute other grounds of 'misconduct' and attract Rs. 2500 assecurity.
The arrest of the agents of the S.LF.P. by the Police on 18.5.1983(the election day) and keeping them in custody as set out in paragraph4C(i) constitute one distinct type of 'other circumstances' and attractRs. 2500 as security.
I agree with the Election Judge that the refusal by the Police ofloudspeaker permits for holding public meetings and acts ofmisconduct by the Police, set out in paragraph 4C (iii) (a) and (c)committed during the election campaign constitute a distinct type of‘other circumstances' and attracts Rs. 2500.
The acts of the Police in permitting unauthorised persons to enterpolling booths and to intimidate electors in the polling queues on theelection day referred to in paragraph 4C (iii) (£>) constitute a third• distinct type of 'other circumstances' and attracts Rs. 2500 assecurity.
sc
Jayasinghe v. Jayakody (Sharvananda, C. J.)
107
The allegation of non-compliance with the provisions of the Ceylon(Parliamentary Elections) Order in Council. 1946, relating to elections,constitutes a distinct ground and attracts Rs. 5000 as security.
I therefore agree with the Election Judge on the computation of thesecurity required to be furnished by the petitioner in respect of theallegations contained in the petition.
The Election Judge has held that the petitioner has set out as bestas he can full particulars of the several corrupt practices alleged by thepetitioner and that the Election Judge could in the exercise of hispower under section 80C (i) direct amendment or amplification of theparticulars, if he thinks necessary. No argument was urged, faultingthis conclusion.
The Election Judge has upheld the objection that the affidavit filedby the petitioner is inadequate.
Paragraph 2 of the affidavit of the petitioner, accompanying thepetition states "that the averment of facts set out in my petition andthe particulars of commission of corrupt practice set out therein aremade from my own personal knowledge and observation or frompersonal inquiries conducted by me in order to ascertain the details ofthe incident referred to in the petition." The Election Judge states thatthe petitioner does not say in his affidavit which facts in the petitionare based on personal knowledge and which of them are based oninformation. He however holds that the affidavit can be one based onpersonal knowledge or on information and belief provided that if thelatter, the deponent must disclose the source of information and thegrounds of his belief. He also held that the function of an affidavit is tocertify and support the allegation of corrupt practice made in thepetition and an affidavit that fails to perform the function is not anaffidavit in the eye of the law. The Election Judge has held that theaffidavit is defective in that the deponent has not disclosed the sourceof information and the ground of his belief. He concludes-
"I reject the affidavit filed by the petitioner on the ground that thepetitioner has not verified and confirmed the facts stated in thepetition I uphold the objection that there was no proper affidavitsupporting the allegation of corrupt practice pleaded in the petition^and therefore the petition was defective.
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Section 80 of the Ceylon (Parliamentary Elections) Order-in-Councilprovides that –
‘The petition shall also be accompanied by an affidavit in theprescribed form in support of the allegation of such corrupt or illegalpractice and the date and place of the commission of suchpractice."
Admittedly no form has been prescribed for the affidavit to conformto.
I agree with the Election Judge that where some of the statementsin the paragraph of the affidavit accompanying the election petition arebased on the knowledge of the deponent and some on informationreceived from others,the affidavit is defective. But I do not agree withthe Election Judge that the petition should be dismissed on thatground of defect in the verification. The allegation of corrupt practicecannot be ignored merely on the ground that the source ofinformation, is not disclosed, when the allegation is based oninformation, as it is not a requirement of law that the source ofinformation or the ground of the deponent’s belief should be set out.since the form of the mandatory affidavit has not been prescribed. Inmy view the Election Judge was in error in upholding this objectionregarding affidavit.
I agree with Samarawickrama, J., that an election petition shouldnot be dismissed on the ground of defective affidavit, where no formhas been prescribed by law.
Though I do not agree with the Election Judge in his conclusionrespecting the objection regarding the persons to be joined asrespondents to the petition and in respect of the adequacy of thepetitioner's affidavit. I agree with the Election Judge that the securityfurnished by the petitioner is not sufficient in terms of Rule 12 (2). Itherefore dismiss the appeal, but I do not make any order regardingcosts.
COUN-THOME', J. – I agree.
ATUKORALE, J. – I agree.
H. DE ALWIS. J. – I agree.
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WANASUNDERA, J.
The two appeals, S.C. 4/84 and 5/84, were consolidated and heardtogether although the petitioners and the respondents in therespective appeals are different. They deal with the same election andthe same electoral seat, and some of the legal issues argued before usare common to both appeals.
In these election petitions the petitioners have asked for adeclaration that the election of the 1 st respondent as a member ofParliament for Mahara (Electoral District No. 17) is void. The petitionerin the second petition and the 1 st respondent were two of the fivecandidates who contested the election.
The election was held on 18th May, 1983, pursuant to Article168 (1) (d) (iii) of the Constitution, as amended by the FifthConstitutional Amendment, and was conducted in terms of theprovisions of the Ceylon (Parliamentary Elections) Order-in-Council1946.
The petitioner in the first petition (No. 4/84) is a voter. The fourrespondents are : the successful candidate (the 1st respondent),Sarathchandra Rajakaruna (the 2nd respondent), who is incidentally amember of Parliament and a Deputy Minister, Ranil Wickremasinghe(the 3rd respondent), also a member of Parliament and a CabinetMinister, and the Returning Officer for the electoral district (the 4threspondent).
Paragraph 3 A of the petition alleges three charges of corruptpractice of undue influence against the 1 st respondent, committed byhis agent the 2nd respondent.
Paragraph 3 B of the petition contains two charges of corruptpractice of undue influence against the 1 st respondent, committed byhis agent the 3rd respondent.
In paragraph 4, the petitioner has stated that by reason of generalintimidation or other misconduct or other circumstances, the majorityof electors may have been prevented from electing the candidatewhom they preferred. Paragraph 4 A lists 14 such instances. Thisintimidation has been done by the 1 st respondent himself and by thesupporters of the 1 st respondent, and includes two instances by the
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3rd respondent and three instances by the 2nd respondent as agentsof the 1 st respondent. These allegations are of a very grave nature andone transaction involved the shooting and the death of a S L.F.P.supporter standing by the side of or very close to the unsuccessfulcandidate Vijaya Kumaranatunga, the petitioner in the second petition.The other cases disclose assault, thuggery and intimidation ofnumerous supporters of the S.L.F.P. at various times and at variousplaces by individuals and gangs, and in one case by a group of about150 persons.
Paragraph 4 B of the petition lists 42 cases of impersonation asconstituting other misconduct.
Paragraph 4 C states certain other circumstances that prevented atrue vote. It contains a list of 31 names of polling agents of the
S.L.F.P. candidate who had been unlawfully arrested and held incustody for several hours after the polling commenced and weretherefore unable to perform their functions. Paragraph 4 C. (ii) liststhree cases where loud speaker permits had been wrongly refused tothe S L.F.P. Paragraph 4 C (iii) alleges a number of wrongful acts onthe part of the Police including the arrest of a chief organiser of the
S.L.F.P. in Uruval Peruwa area.
In the second petition (No. 5/84) Mr. Vijaya Kumaranatunga, theunsuccessful candidate, has sought a declaration that the election isvoid on the ground that the 2nd respondent Mr. J. R. Jayewardene(the President of the Republic) as agent of the 1st respondent,committed the corrupt practice of making false statements of fact inrelation to the personal character and conduct of the petitioner. Thatpetition would be dealt with in the latter part of this judgment.
The election had been hotly contested and the result was veryclose. The 1st respondent polled 2.4,944 votes as against 24,899polled by Mr. Kumaranatunga, the petitioner in the second petition.The majority was a mere 45 votes. There is reason for anxiety in thiscase when we consider the serious nature of the allegations in thepetition in the context of the slender majority.
When the election petitions came for hearing before the ElectionJudge, the respondents at the outset raised certain preliminary• objections and prayed for the dismissal of the petitions. The ElectionJudge has upheld those objections and dismissed the petitions. The
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present appeals are from that order. The dismissals of the petitions inlimine by the Election Judge did not permit the court to go to trial andinquire into the several allegations made in the petitions.
The preliminary objections raised in the first petition (No. 4/84) arethe following
that sufficient security has not been given by the petitioner inrespect of his petition.
{b) that persons who are required to be joined as respondents tothe petition have not been so joined.
that the petition has failed to set out full particulars of theseveral corrupt practices alleged by the petitioner as required bythe law.
that the affidavits filed by the petitioner are inadequate and donot comply with the legal provisions.
At this stage it would be convenient to set out in extenso the legalprovisions that are relevant for a consideration of this matter. Theapplicable legal provisions are contained in the Ceylon (ParliamentaryElections) Order-in-Council 1946, as amended by Act No. 9 of 1970.They are as follows
"80 A. (1) A petitioner shall join as respondent to his election
petition –
where the petition, in addition to claiming that the election of allor any of the returned candidates is void or was undue, claims afurther declaration that he himself or any other candidate hasbeen duly elected, all the contesting candidates, other than thepetitioner, and where no such further declaration is claimed, allthe returned candidates ; and
lb) any other candidate or person against whom allegations of anycorrupt or illegal practice are made in the petition. 2
(2)Any candidate not already a respondent to an electionpetition shall, upon application in that behalf made by him tothe Election Judge, be entitled to be joined as a respondent*to such petition :
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Provided that no candidate shall be entitled to be joined of his ownmotion as a respondent to such petition under the precedingprovisions of this section unless he has given such security for costsas the Election Judge may determine.
80 B. An election petition –
shall state the right of the petitioner to petition within section 79of this Order:
shall state the holding and result of the election ;
shall contain a concise statement of the material facts on whichthe petitioner relied ;
shall set forth full particulars of any corrupt or illegal practice-that the petitioner alleges, including as full a statement aspossible of the names of the parties alleged to have committedsuch corrupt or illegal practice and the date and place of thecommission of such practice, and shall also be accompanied byan affidavit in the prescribed form in support of the allegation ofsuch corrupt or illegal practice and the date and place of thecommission of such practice ;
shall conclude with a prayer as. for instance, that somespecified person should be declared duly returned or elected, orthat the election should be declared void, or as the case maybe, and shall be signed by all the petitioners ,
Provided, however, that nothing in the preceding provisions of thissection shall be deemed or construed to require evidence to be statedin the petition.
80C. (1) The Election Judge may, upon such terms as to costs orotherwise as he may deem fit, allow the particulars of any corrupt orillegal practice specified in an election petition to be amended oramplified in such manner as may in his opinion be necessary forensuring a fair or effective trial of the petition so, however, that heshall not allow such amendment or amplification if it will result in theintroduction of particulars of any corrupt or illegal practice notpreviously alleged in the petition.
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Every election petition shall be tried as expeditiously aspossible and every endeavour shall be made to conclude the trial ofsuch petition within a period of six months after the date of thepresentation of such petition. The Election Judge shall make hisorder deciding such petition without undue delay after the date ofthe conclusion of the trial of such petition.
81. At the conclusion of the trial of an election petition theElection Judge shall determine whether the Member whose returnor election is complained of, or any other and what person, was dulyreturned or elected, or whether the election was void, and shallcertify such determination in writing( under his hand.
Such certificate shall be kept in the custody of the Registrar of theSupreme Court to be dealt with as hereinafter provided.'
These provisions have to be considered in conjunction with Rule 12of the Rules. Rule 12 contained in the Third Schedule is as follows
‘12. (1) At the time of the presentation of the petition, or withinthree days afterwards, security for the payment of all costs, chargesand expenses that may become payable by the petitioner shall begiven on behalf of the petitioner.
The security shall be. an amount of hot less than fivethousand rupees in respect, of the first charge constituting a distinctground on which;the petitioner relies, and a further amount of not lessthan two thousand five hundred rupees in respect of each additionalcharge constituting any such ground. The security required by this ruleshall be given by a deposit of money. 3
(3)Jf security as in this rule provided is not given by thepetitioner, no further proceedings shall be had on the petition, and therespondent may apply to the Judge for an order directing the dismissalof the petition and for-the payment of the respondent’s costs. Thecosts of hearing and deciding such application shall be paid as orderedby the Judge, and in default of such order shall form part of the •general costs of the .petition r
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For the purpose of their submissions, counsel for the respondentshave drawn the attention of the court to certain grounds and chargesin the election petition. According to paragraph 3 of the petition thegrounds and charges are as follows
3A. Corrupt practices of undue influence committed by the 2ndrespondent as agent of the 1 st respondent. Three charges.
3B. Corrupt practices of undue influence committed by the 3rdrespondent as agent of the 1 st respondent. Two charges.
■ In paragraph 4, the petitioner has alleged the ground of “generalintimidation or other misconduct or other circumstances' whereby themajority of the electors may have been prevented from electing thecandidate whom they preferred. As stated earlier, this groundcontains three instances of intimidation by the 2nd respondent andtwo such instances by the 3rd respondent.
The parties were at issue oh the question as to what is a ground andwhat is a charge of undue intimidation and how many such chargesare contained in the petition. It was the respondents' contention thateach of the charges referred to above is a charge of corrupt practiceand carries with it the need to give security, the need for a coveringaffidavit and the joinder as a respondent of the person against whomsuch an allegation is made. This relates specifically to the chargesunder paragraph 4 of the petition which has been a bone of contentionbetween the parties and all the issues before us arise from implicationsflowing from its contents. I
I shall first deal with the question of security. The^ petition has beendrafted on the basis that paragraph 3A (i), (ii) and (iii) contains threecharges with the first charge carrying a security of Rs. 5,000. Thetotal security due according to the petitioner therefore is Rs. 10,000.Paragraph 3B contains two charges of undue influence against the 3rdrespondent. The security according to the petitioner is Rs. 5,000.Paragraph 4A contains one charge of general intimidation on theground of the prevention of free voting. This the petitioner statescarries a security of Rs. 5.000. Paragraph 4B is a charge of'misconduct on the same ground as 4A and, according to thepetitioner, attracts a security of Rs. 2,500. Paragraph 4C is another‘charge on the same ground and again according to the petitionerattracts a security of Rs. 2,500. Paragraph 5 dealing with
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non-compliance is a first charge on a distinct ground and attracts asecurity of Rs, 5,000. The total- security in respect of all charges,according to the petitioner, is Rs. 30,000. The petitioner has howeverdeposited a sum pf Rs. 50,000 leaving a large margin for error.
Both counsel for the respondents disputed this computation.Mr. Candappa had contended before the Election Judge'that theproper amount of security is Rs. 72,500'; but according to Mr. MarkFernando it was Rs. 60,000. In the appeal before us it was_submittedby both the. respondents that the proper security is a sum ofRs. 60,000.
Since the difference between the sum deposited and what iscontended to be the correct amount is only Rs. 10,000,1 agree withMr. Senanayake that it is not necessary for me to go into a detailedcomputation of the security in respect of all and every ground andcharge. It was sufficient for us, as Mr. Senanayake submitted, that weconfine ourselves to only paragraphs 4A (v), (vi) and (vii) andparagraphs 4A (xi), (xii), (xiii) and (xiv) of the petition on the objectionto the adequacy of security. According to the" respondents, thesecharges carry a security of Rs. 1.7,500. Mr. Senanayake hascontended that paragraph 4A contains only one ground and chargeand that this will carry a security of Rs. 5.000 and if this submission iscorrect, this preliminary objection would fail.
Paragraph 4A purports to have been formulated under section77 (a). This provision requires some comment. Although there hasbeen a divergence of views expressed by the Judges {including myself)in S.C. Election Petition Nos. 1, 2 and 3 of 1977 regarding section77 (a), all counsel before us agreed that this provision contains onlyone ground of avoidance, namely that the majority of electors were ormay have been prevented from electing the candidate whom theypreferred. They also agreed that each circumstance enumerated insection 77 (a) would constitute a charge, e.g the first charge ofgeneral intimidation would attract a security of Rs. 5,000 and chargesof general treating or general bribery etc., would be regarded asadditional charges respectively and would attract a security of Rs.
each.
Now the respondents have contended that paragraphs 4A (v) to (vii)and (xi) to (xiv) constitute in fact.charges of corrupt practice, althoughthey have been formulated as charges under section 77(a). It was the •respondent's contention that the court was not necessarily bound by
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the formulation found in the petition and it was the duty of the court,having-regard to the legal provisions relating to elections, to inquireinto the circumstances set out in the petition and find out whether ornot they disclose any allegations of corrupt practice against anyperson.
, The respondent's objections on this matter were upheld by theElection Judge. The reasoning of the Election Judge in regard to thispart of the case is as follows :
'. .. . The security that is payable does not depend on what apetitioner has chosen to label as corrupt practices, for. if this wereso, it will leave the door wide open to the petitioner to tuck away insome part of.the petition, an item of general intimidation, which ifproved would result in avoiding the election. Take, for example,items (xi), (xii), (xiii)-and (xiv) of paragraph 4A of the petition. Theyall contain allegations of assault by the 1 st respondent, who is thesuccessful candidate, or named persons who are SLFP supportersand it is stated that these acts were done in order to prevent thefree exercise of the franchise by several electors who witnessed theincident by placing them under duress. The pleadings in thesesub-paragraphs are exactly the same as those in paragraphs 3B (i)and (ii) against the 3rd respondent. This allegation, if proved at thetrial, will not oniy avoid the 1st respondent's election, but hebecomes also liable to be reported under s. 82 (a) of the ElectionOrder-in-Council with two dire consequences – forfeiture of his civicrights and a criminal prosecution. I agree with Mr. Candappa thatthere are four charges of undue influence against the 1strespondent."
In regard to charges 4A (v), (vi) and (vii), the Election Judge said-
"ln paragraphs 3A (i). (ii) and (iii), definite allegations of undue. influence have been made against the 2nd respondent only, who isdescribed as an agent of the 1st respondent. The persons whosevotes were affected have also been named. All three incidents■ occurred near the Buthpitiya polling booth and the exact times whenthese incidents took place have also been specified. In each of theparagraphs 4A (v). (vi) and (vii) the allegations are against the 2ndrespondent and other persons who acted on his behalf and at his. instigation. The acts of the other persons have been brought hometo the agent of the 1 st respondent. All incidents occurred atButhpitiya polling booth ; the times are not specified. The acts
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complained of are directed against the same persons named inparag’raphs 3A (i), (ii) and (iii), and also against several otherelectors and in consequence they, also did not vote. The incidentsset out in these sub-paragraphs (v) — (vii) of paragraph 4A cannotbe the same as those set out in paragraph 3A (i) to (iii). Each of theallegations stated in sub-paragraphs (v) – {vii) of . paragraph 4A, ifproved at the trial, will avoid the 1st respondent’s election. Thepetitioner may fail to prove the allegations in paragraphs 3A (i) to(iii), and yet succeed in proving the allegations in paragraphs 4A (v)to (vii). I agree with Mr. George Candappa that there are threeadditional chargies of undue influence against the 2nd respondent inparagraph 4A (v), (vi) and (vii)." .
Section 82 (b) of the Order-in-Council requires the Election Judge.atthe conclusion of the trial of the election petition to make a reportsetting out-
"(a) whether any corrupt or illegal practice has or has not beenproved to have been committed by or with the knowledge andconsent of any candidate at the election, or by his agent, andthe nature of such corrupt or illegal practice, if any ; and
(6) the names and descriptions of all persons, if any, who havebeen proved at the trial to Have been guilty of any corrupt orillegal practice :
Provided, however, that before any person,' not being a party toan election petition nor a candidate on behalf of whom the seat isclaimed by an election petition, is reported'by an Election Judgeunder this section, the Election Judge shall give such person anopportunity of being heard and of giving and calling evidence toshow why he should not be so reported."
This is the peg on which the respondents hang their arguments. Toreiterate their arguments, they submit that there is a duty on theElection Judge to inquire into any allegation of a corrupt or illegalpractice contained in the petition and to make a report specifying anyperson found guilty of any such practice/This they submit is to ensurethe purity of the electoral process; They state that this duty extendsbeyond the case where a specific charge of a corrupt or illegal practiceis made under section 77 (c), but would apply even where a corrupt orillegal practice is merely alleged in the petition. It is their submissionthat the jurisdiction of the court would be activated even when there is
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a reference to a corrupt or illegal practice under any other ground as insection 77 (a). They have sought additional support for this in thedifference in wording of paragraphs (c) and (d) of section 80B„ wherethe terms 'alleges' and 'relies on' are. they submit, used in differentsenses.
On the basis of these provisions they submit that there is a duty onthe Election Judge to identify and furnish a report of all persons provedto have been guilty of any corrupt or illegal practice. This of coursewould be additional to the main duty of court in determining the issueof the avoidance of the election. Mr. Candappa ‘placed his case as highas to state that an election court in this country has the same powersexercised by an election court in’the U.K. and would'havequasi-inquisitorial powers to investigate and report on all allegationsrelating to corrupt and illegal practices. He cited the following passagefrom Halsbury's Laws of England (4th Edition). Volume 15, paragraph834, in support of his submission :
'Subject to the provisions of that Act and the rules made under it,the principles, practice and rules on which committees of the Houseof Commons used to act in-dealing with election petitions are to beobserved, so far as may be, by the High Court and Election Court inthe case of a parliamentary election petition. Where the petitionalleges the commission of corrupt or illegal practices, the electioncourt has quasi-inquisitorial as well as judicial duties, as the courtmust investigate and report whether any corrupt or illegal practiceshave been committed by. "or with the consent of, the candidate, orby any pther person, or whether they have extensively prevailed. Itfollows, therefore, that the election court has jurisdiction to inquireinto any,facts which throw light on the possibility of these offenceshaving been committed even though these facts are not relevant tothe issue raised between the petitioner and the respondent to thepetition’'
While there may not be a difference in the basic principles thatgovern an Election Court in the U.K. and in our country, yet our courtshave been constrained to giOe effect to certain statutory provisionsenacted here to meet the local requirements in the development ofelection laws in this country. Our courts would not have the wideranging jurisdiction claimed by Mr. Candappa. but it would be nearerthe position advocated by Mr. Choksy, who was not prepared to go allthe way with Mr. Candappa.
SC'Jayasingbev.JayakodyfWanasundera.J.)1)9
An analysis of the relevant provisions which is supported by judicialdecision leaves no room for doubting the respondents' submissionthat an election court is vested with dual functions. The dual function’sconnote in this context the conducting of two separate proceedingsnotionally, each involving a different set of issues and each leading todifferent consequences and yielding different results. Even the veryquotation from Halsbury cited by Mr. Candappa in' its concludingsentence makes this clear:
". . . . . that the election court has jurisdiction to inquire into anyfacts which throw light on the possibility of these offences havingbeen committed even though those facts;are not relevant to theissue raised between the petitioner and the respondent to thepetition:" ■■, .
'The main event or proceeding in an election petition proceeding isthe inquiry into the avoidance of the. election. Its result can affect thewhole, electorate and the country. The other function, which issubsidiary, operates at an individual level, both in terms of inquiry andresult. Where the mairijDroceeding i^ based on the ground of a cqrruptor illegal practice, the law by virtue of our amendment now requiresthe person against whom such allegations have, been made should bemade a respondent. It also requires such guarantees as security forthe charges and the backing.of an affidavit.. ,
The main proceeding is also intimately linked with both the groundsfor the avoidance of the election and the charges arising therefrom.These would be the issues in. those proceedings. In the subsidiaryproceedings the grounds for avoidance of the election are,irrelevantand even, a charge qua charge is not a matter in issue. The inquiry isdirected, if Justice Nagalingam is right, not even to the conduct andculpability of the person against whom the allegation is made, butwhether the material merely indicates the commission of a corrupt orillegal practice. In In re Fred E. de. Silva, (1) Nagalingam J. said
"… A reading of sub-section (a) of section 82 reveals only twoclasses or persons who could be reported at best. I say "at best" forthe primary concern of the sub-section is not so much with personsas with offences. It requires that areport should be made .whether acorruptor illegal practice has or has not been proved to have beencomrrlitted, not that a person or persons should be reported ;.. ."•For the purpose of resolving the issues before us, it is equallyimportant that we have a clear understanding of what is a "ground"and what is a “charge*. A fundamental distinction exists betweenthese two expressions. It is now settled law that a “ground" and 3
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'charge" are different concepts and do not mean the same thing. Thegrounds for the avoidance of an election are set out in section 77.Clauses (b), (d) and (e) of section 77 cbntain one ground each, clause
contains two grounds, and clause (a) contains one ground. Allthese grounds are separate from one another and different, A chargewould be an allegation coming under any particular ground referred toin section 77, which, if proved, would be sufficient to avoid anelection. A charge under one ground is strictly confined to that groundand cannot be mixed with a separate ground and considered under adifferent headjn section 77. The entire foundation of the respondents’submission is that a. charge under one ground should also beconsidered as falling under a different ground. This is certainly not thelegal position as I understand it.
The next mistake on the part of the respondents is to ignore thedifferences in nature and content between ground 77 (a) and ground77 (c). I now turn to these'two provisions contrasting ground 77 (a)with ground 77 (c) with reference to an allegation of a corrupt orillegal practice. Under ground (a), namely general intimidation, it ispossible for a petitioner to give one or more instances of a corruptpractice. Now, could such an instance be considered as a charge of acorrupt practice under section 77 (c) for the purpose of the avoidanceof the election ? I do not think so.
First, it should be understood that ground 77 (a) deals with generalbribery, general treating and general intimidation, and the gravamen pfthe complaint is that the majority of the electors were or may havebeen prevented from electing the candidate they preferred. On theother hand, ground 77 (c) deals with a corrupt or illegal practicesimpliciter. Second ground 77 (c) is confined to a corrupt or illegalpractice committed by the candidate or with his knowledge andconsent or by his agent. There is no such limitation in regard to areference to a corrupt practice made under ground 77 (a). This showsthat the charge under (c) is a direct charge of corrupt practice madeagainst the successful candidate, while under (a) the so called'charge' against the successful candidate is not of a corrupt practice,but one of general intimidation. The reference to an instance of acorrupt practice under section 77 (a) is an allegation against theindividual concerned and not against the successful candidate, andsuch an allegation can lead to certain other proceedings being set inmotion against such person. There is another significant differencebetween these provisions which Mr. Choksy sought to bridge by givingus an illustration.
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. This difference is that ground (a) contemplates a generality, namely,a number of individual cases of intimidation or one act of intimidationinvolving several persons. Ground (c) .deals with an act of intimidationoperating at the individual level. This is borne out by the definition of"corrupt practice' in section 56, which shows that undue influencehas to be exercised 'upon or against any person". Mr. Choksyhowever strove valiantly to equate these two grounds. He gave, as theexample of an agent of the successful candidate intimidating a wholevillage containing 50 voters. This Mr. Choksy submitted was anexample that could fall under both grounds (a) and (c).
While I agree with Mr. Choksy that this example can form a chargeof general intimidation, I am however unable to agree that this canconstitute a single charge under ground (c). This example ismisconceived, for when it is closely examined it would be seen thatthis transaction constitutes both in law and fact a multiplicity ofcorrupt practices in terms of ground (c). There would be in this caseas many corrupt practices as the number of voters who had beenintimidated for the purpose of section 77 I a).
It would be clear from the above analysis that the so called "charge'of a corrupt practice under ground (a) has not the same meaning andlegal effect as one under ground (c).
The disputed charges are 4A (v) to (vii) and 4A (xii) to (xiv). Charges4A (v) to (vii) states that the intimidation was done by-the 2ndrespondent simpliciter, while charge 3A is formulated on the basis thatthe 2nd respondent acted as the agent of the 1st respondent. On theother hand, charges 4A (xii) to (xiv) on which Mr. Choksy relied referto the acts of the candidate himself. He submitted that these chargescould have been brought as a charge under section 77 (c).
When we look at charges 4A (ii) and (iii) and 4A (v), (vi) and (vii) ofthe petition, .we find that these are not based on agency or on the. direct responsibility of the candidate himself. As the pleadings stand,such evidence would not be admissible, so that for the reasons givenearlier, these charges can in no way be equated to a ground undersection 77 (c).
Mr. Choksy however, as to be expected, picked on the strongestcase the respondents could present on this issue and pressed thecharges 4A (xii) to (xiv), where the allegation is against the successfulcandidate himself. Incidentally if this submission fails a fortiori, thesubmission in respect of paragraphs 4A (v) to (vii) must necessarilyfail.
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Mr. Choksy submitted that such an allegation involving thesuccessful candidate has to be considered differently from the othercases because, on the pleadings and as regards the availableevidence, there would be no difference in his case between.a chargeunder'section 77 (c) and an allegation of a corrupt practice undersection 77 (a). While admittedly some difference does exist betweenthe two types 6f cases this is a difference brought about by the verynature of his situation as the main respondent defending the Election,but it can have no other significance This fact does not go to alter thebasic principles outlined earlier and such an inquiry even against thesuccessful candidate would still partake of the nature of a subsidiaryproceeding since the distinction I have drawn in this regard is afundamental one and it cannot be blurred by accidental factors.
No doubt, unlike in the case of an alleged agpnt, there is a possibilityof an elected candidate while succeeding in the trial stilt finding himselfbeing liable to be reported under section 82 with the consequencethat he may find himself disqualified from continuing to hold that seat.This has the appearence of an anomaly. Though that ultimate resultmay seem paradoxical, this is because in such an event the applicablelegal provisions operate by way of two different channels. Thisprovides the clearest proof that an election petition proceeding is dualin its nature and functions. In this example the election of thesuccessful candidate would be sustained by virtue of the certificateissued under section 81. The disqualification on the other handoperates by virtue of the provisions of section 82 read with 82D andsection 58. Even Mr. Choksy conceded that this, position is theoutcome of the operation of the legal provisions and that there wouldbe nothing anomalous about it.
■ The above analysis helps also to dispose of another submissionrelating to section 82 made by the respondents. They state that if theproviso to. section‘82 were to be applied only to persons againstwhom allegations Of a corrupt practice had been made outside section77 (c), then an invidious distinction is being drawn among personsbelonging to the same category. I
I have already shown that a case falling under section 77 (c) isdifferent from the category falling under section 77 (a), andaccordingly these two are different categories constituted by the lawfor different sets of circumstances. The need to join some persons asrespondents have been brought about by the amending law of 1970,
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which has improved the procedural rules so as to give fullerexpression to section 77 (c). A difference in the circumstances hasresulted in this slight difference of procedure, but both procedurescontain the same safeguards and cannot.in my view amount to a caseof discrimination. Incidentally it may be mentioned that the proviso tosection 82 has been retained not only for cases such as this, but alsofor other types of cases, some contemplated by the legislature, othersprobably not. that may fall within the ambit of the proviso. '
Although the respondents' cases have been presented onsomewhat broader lines and touches on a number of charges. I havedealt with the strongest case the respondents could muster. . Myrulings here will necessarily cover all the other charges in respect ofwhich the submissions of counsel carry much less conviction andweight, this finding against the respondents then, that the preliminaryobjections are based on a misconception, is adequate to dispose ofthe preliminary objections relating to all the charges in petitionNo. 4/84, save one. That is the question of the adequacy of theaffidavit in the general context of the whole petition over and above itsrequirement under the impugned charges of corrupt or illegalpractices.
Regarding the general adequacy of the affidavit, I find that thejudgment of my brothers contain a useful discussion of this matter. Itis not necessary to add anything more. I agree with, them; contrary towhat Mr. Senanayake submitted, that ah affidavit is a necessaryrequirement and must be filed with the petition in a case such as this.A document purporting to be an affidavit, however, has been filed withthe petition. It has been contended that this does not constitute, aproper affidavit or an adequate one.. Although the legislatureundertook to prescribe the required, form, it has omitted to do so. Inthe result, the petitioner has been left guessing as to what form heshould follow. In this situation the drastic step of dismissing thepetition for this lapse, if lapse it be, seems excessive. I would considerthis lapse as an irregularity that does not affect the validity of thepetition before court.
In the result I overrule^all the preliminary objections. I wouldtherefore allow the appeal with costs and direct the Election Judge toproceed with the hearing and trial of this petition.1
Appeal dismissed.