010-SLLR-SLLR-1983-1-KOBBEKADUWA-v.-JAYAWARDENE-AND-OTHERS.pdf
416
, Sri Lanka Law Reports
[1983] 1 Sri LR.
KOBBEKADUWA
v
JAYEWARDENE AND OTHERS
SUPREME COURT,
SHARVANANDA J., WANASUNDERA J.,VICTOR PERERA J., SOZA J. ANDRANASINGHE J.
ELECTION PETITION NO.3/82.DECEMBER 13,14 and 15, 1982.
Election – Election petitions – S 93 (a) of PresidentialAct Wo. 15 of 1981 – corrupt practice of false state-ment of fact in relation to the personal character orconduct of opposing candidate-illegal practice of causingto he printed, published and distributed a publicationnot bearing on its face the names and addresses of thepublisher by agent of 1st respondent – S80 (c), 12(1) and133(1), S91(c) S85, S95(l)(b), S96, S96(d), S97 of thePresidential Elections Act No.15 of 1981 – Should unincor-porated body be made a party respondent – Material facts- Particulars – Affidavit.
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Kobbekaduwa v. Jayawardene
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At the Presidential election held on 20th October.1982 the 1st respondent was' declared duly electedas the President of the Democratic SocialistRepublic of Sri Lanka. The petitioner who was acandidate at the said election sought to have thesaid election of the 1st respondent avoided on fourcounts of the commission of the corrupt practice ofmaking false statements relating to the personalcharacter and conduct of the petitioner by the 2nd.respondent as agent of the 1st respondent and /orwith his knowledge and consent, and on a fifthcount of the commission of the illegal practice ofcausing to bo printed, published and distributedthe document marked X which did not bear on itsface the names and addresses of the printer andpublisher by the 3rd respondent and the United.National Party as agents of the 1st respondent.
In order to establish the commission of the.corrupt practice of false statement of fact inrelation to the personal character or conduct of acandidate the petitioner must prove:
That there had been a publication by thecandidate or with his knowledge or consent orby his agent
The statement is a false statement offact
The statement is in relation to thepersonal character or conduct of the opposingcandidate and not to his public or politicalcharacter or conduct
The statement is made for the purpose ofaffecting the result of the election. It mustbe reasonably calculated to prejudice theprospects of th$ candidate's election . Itneed not be defamatory at common law so longas it is a statement calculated to influencethe electors.
The words of the statement will be interpreted
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…according to their real and true meaning and not_necessarily according to. their literal sense. Thetrue meaning mill depend on the occasion of thepublication, the persons published, the personattacked and the readers intended to be addressed.Reference to character or conduct must be directand not inferential or by indirect implication.
A distinction must be drawn between a falsestatement of fact which affects the personalcharacter or conduct of a candidate and a falsestatement of fact which deals with the politicalposition or reputation or action of the candidate.
The alleged false statement that the petitionersent his nomination papers through Mr.Ratnasiri
Wickremaiiayake. is at the worst merely a criticismof the petitioner's public conduct. Reading anindirect implication of arrogance into the state-ment will not still bring if within the ambit ofs.80(c) and no corrupt practice is disclosed.
The document X does bear on its face the nameof a printer and publisher. The allegation thatthere are false names represents a divergence fromthe allegation in the petition. Further the docu-ment must refer to an election under the Act. *X*does not refer directly or by implication to thePresidential election held on 20th October 1982.Further the agent must be the election agent or anauthorised agent.
The word "agent** in s.85 does not embraceeverybody who comes within the wide concept ofagent in election law but only an election agent oran authorised agent. It is not the petitioner'scase that either the 3rd respondent or the UnitedNational Party was the election agent or authorisedagent of the 1st respondent.
Although the United National Party is anunincorporated body it should have been cited as arespondent in compliance with the imperative
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-provisions of s.95(l)(b) of the Act and then-applied for directions from th% Chief Justice as tothe further steps to have ttu. **arty represented inthe proceedings. The provisions of s.96 aremandatory and failure to duly comply with themrenders the whole petition and not merely theparticular charge invalid and a nullity.
Failure to give the names of the supporters ofthe – United National Party referred to in theaffidavit is not a good ground of objection as nocomplaint has been made that the supporters of theUnited National Party had committed an illegalpractice. Only persons who are alleged to havecommitted an illegal practice are required to bemade respondents.
Section 96 makes a distinction between materialfacts and particulars. Material facts are thosewhich go to make out the petitioner's case againstthe respondent. The word "material” means necessaryfor the purpose of formulating the charge and ifany one material fact is omitted the statement ofclaim is bad and liable to be struck out. Thepresent petition cannot be flawed on this ground.
The function of particulars is quite different.It is to fill the picture of the petitioner’scharge against the respondent with informationSufficiently detailed to enable the respondent tobecome aware of the case he has tomeet and to.
prepare for the trial. An election petition is not -liable to be dismissed in liaih'e ' merely becausefull particulars of the corrupt practice allegedare not set out because amendment or amplificationcan be ordered by the Court under s.97 (1) of theAct.
The function of an affidavit is to verify thefacts alleged in the petition. The affidavitfurnishes prima facie evidence of the facts deposedto in the affidavit. In an affidavit a person candepose only to facts to which he is able to testify
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of his own – knowledge and observation. There is.substance in the allegation that the petition isnot accompanied by the necessary affidavit insupport of the alleged illegal practice.
Cases referred to –
North Louth Case (1910) 6 O'M&H. 103
Sunderland Case (1896) 5 O'M&H. 53
3• Cockermouth Division case (1901)50'M&H'
155,159,160.
Ram Singh v, Inder Singh (Indian Election Cases(1935-1950) by H.S. Dhobia Vol. 1 p. 341,347.
Illangaratne v. G.E.de Silva 49 MLR169,172,173,179.
Don Phillip v. Illangaratne 51 NLR 561,571,573,
R.v.I.CR. Haulage [1944J1 All ER 691,693,
Willis V, Association of Universities [1964J2All ER 39,42,
Bonser v. Musicians Union [1956JAC 104
Nair v, Teck[1967] 2 All ER 34 P.C,
Wijewardena v, Senanayake 80 C,L,W, 1,
Election Petition challenging election of thePresident K. Shansaugal.ingam. with Gomin Dayasiriinstructed by Nitnal de Silva for the petitioner.
Pc Navaratnerajah Q.C, with J., W. Subasinghe S.A,,
K.N.Choksy S.A.,L.C.Seneviratne and Lakshman Pererainstructed by John Wilson for 1st respondent.
Eric Amerasinghe S.A., with George Candappa, N.S.A.Gootietillke,A jitTilakawardene, Quintus
Palliyaguru, Dudley Fernando and Sarath Ratnayakeinstructed by H.A.P. Perera for 2nd respondent.
K.N.Choksy S.A. with Mark Fernaindo, Daya Pelpola,D.H.N.Jayamaha, Ronald ■ Perera and Miss.
I.R.Rajepakse' instructed by D.F.R. Jayamaha for the3rd rerpondent.
SCKobbekaduwa v. Jayawaidene (Shatvananda, J.)421
f
January 10th ,1983SMARVANANDA, J.,
At the Presidential Election held on the 20thOctober,1982, the 1st Respondent was declared dulyelected as the President of the Democratic Socia-list Republic of Sri Lanka. The Petitioner was oneof the candidates at the said election. He hasfiled this petition in terms of section 93(a) ofthe Presidential Act No.15 of 1981 (hereinafterreferred to as the ’Act').
The 1st Respondent was a candidate nominatedby the United National Party, which was a recog-nised Political Party and the Petitioner was acandidate nominated by the Sri Lanka Freedom Partywhich is also a recognised Political Party.
The nomination of candidates took, place on17th September 1982. By his petition filed on11.11.1982 the Petitioner has challenged thevalidity of the election of the 1st Respondent onthe following grounds
Allegations.
1. That the 2nd respondent» as agent of the1st respondent and/or with bis knowledge orconsent committed the corrupt practice ofmaking or publishing during the election forthe purpose of affecting the result of thesaid election, a false statement‘ of fact inrelation to the personal character or conductof Sri Lanka Freedom Party candidate H.S.R.B.Kobbekaduwa (the Petitioner) in terms ofsection 80(c) of the said Presidential Elec-tion Act, in that :-
"the 2nd Respondent did at an election
meeting held in support of the candidature ofthe 1st Respondent at the Road Reservation infront of Beruwela Railway Station on '18th day
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of September 1982; make a speech in which, hestated inter alia –
"It was seen over the television at the.handing over of the nominations, who is thesuitable person to be the President of thiscountry. Mr.' Hector Kobbekaduwa without goingto-the Election Commissioner to hand over thenomination papers sent Mr. Ratnasiri Wickraaa-nayake, the Party Secretary instead. Yet itwas possible for everyone to view how modestlyour President behaved on that occasion.
The Petitioner states that the said statement, was made by the 2nd respondent as agent of the 1stRespondent and/or with his knowledge or consent,and that the said words are false and constitute afalse statement of fact in relation to the personalcharacter or conduct of the said candidate, H.S.R.
Kobbekaduwa, for the purpose of affecting thesaid Election.
The Petitioner states that the 2nd respondentcommitted similar acts of corrupt practice byrepeating the aforesaid statements at Matugaina,Bulathsirthala and Kalutara on 18th September 1982.These are the subject matter of the 2nd, 3rd andAth charges.
It is to be noted that the aforesaid acts ofcorrupt practice are alleged to have been committedby the 2nd respondent as the agent of the 1strespondent and/or with his knowledge and. consentall on ,18th. September 1982 , the day following thenominations day and not thereafter.
The 5th ground of challenge is that the 3rdrespondent who is the General Secretary of theUnited National Party and the United NationalParty, acting as agents of the 1st respondent, inthe Presidential Elections "caused to be printed,
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. published and/or distributed hand bills or adver-tisements, placards or prospectus representing aRation Book and containing inter alia a photographof the candidate H.S.R.B.Kobbekaduwa and a state-ment alleged to have been made by the said H.S.R.BKobbekaduwa.. The said publication was printed,published and/or distributed by the 3rd Respondentand■the United National Party as the agent of the1st Respondent and the United National Party as theagents of the 1st respondent all over the countryin the said election campaign between 17th Septem-ber 1982 and 20th October 1982. The said publica-tion does not bear upon its face the names andaddresses of its Printer and Publisher, which is anillegal practice under section 85 of the Presi-dential Elections Act. One copy of the said publi-cation is annexed hereto marked ’X'. Thus the . Xrorespondent and the said United National Party asagents .of the 1st respondent had committed theillegal, practice -of causing to he printed , pub-lished or distributed the said publication, marked"’X* which does not bear upon its face the names andaddresses of its Printer and Publisher."
The relief claimed by the Petitioner are thatthis Court determines that the 1st Respondent wasnot duly elected or returned as the President ofthe Democratic Socialist Republic of Sri Lanka atthe election held on 20th October 1982 and that theelection is void.
The Respondents to the petition are Mr.J.R.Jayewardene, the 1st Respondent, whose election asPresident is sought to be avoided, Mr. Lalith Athu-lathmudali, the 2nd Respondent, who as the agent ofthe 1st Respondent is alleged to have committedthe corrupt practice of publishing the falsestatements of fact referred to above in breach ofsection 80(c) of the Act and Mr. Harsha Abeywar-dena, the 3rd Respondent, who as the agent of the1st Respondent is alleged to have caused to be
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printed published and/or distributed the hand billsrepresenting a Ration Book (copy marked 'X') con-taining inter alia a photograph of the petitionerand a statement alleged to have been made by himwhich did not bear upon its face the name andaddress of its Printer and Publisher, in breach ofsection 85 of the .Act.
Preliminary Objections.
The Respondents have taken severalpreliminary objections to the petition, and havemoved that the petition be rejected or dismissed.
The main objections of the Respondents are
that1-
The petition does not disclose any cor-
rupt practice within the meaning of section80(c) of the Act and the 1st and 2ndRespondents submit that, assuming that the 2ndRespondent made the alleged false statementsreferred to in paragraphs« G of the
petition, the said statements do not consti-tute false statements of fact in relation tothe personal character or conduct of thecandidate H.S.R.£.Kobbekaduwa.
The petition does not disclose any illegalpracticie within the meaning of section 85 ofthe Act.
The 1st and 3rd Respondents further submit..that the said publication 'X' does not contra-vene section 85 of the Act. The petition doesnot aver or allege that the document 'X'refers to the Presidential Election and hence,there was no breach of section 85 of the Act.
The petition has net complied with the man-datory provisions cf section 95(l)(b) of theAct, in that the .K-*itioner has failed to join
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as Respondent to the petition the UnitedNational Party, who is alleged to have commit-ted the illegal practice under section 85 ofthe Act.
4(a) The supporters of the United NationalParty, referred to in paragraph 3 of theaffidavit of Randeni Arachchige 2-arath Wijese-kera (filed in support of the petition) ashaving distributed on behalf of the1st
Respondent, the United National Party candi-date, the document 'Xs have not been namedeither in ■the said affidavit or inthe
– petition and that accordingly the petitiondoes not comply with the requirements ofsection 96(c) and (d) of the Act.
(b) The petitioner has failed to join as res-pondents to the‘ petition as required bysection 95(1)(b) of the Act the said suppor-ters who according to the affidavit wouldappear to have commiited an illegal practiceunder section 85.
5.The petitioner has not filed affidavits insupport of his allegation of the illegalpractice set out in paragraph 7 of thepetition and that the /petition accordinglydoes not comply with the requirements ofsection 96(d) of the Act.
FIRST OBJECTION
Corrupt Practice.
The statement of fact which the petitionerasserts is false and which constitutes an infrac-tion of section 80(c) of the Act is that " Mr., Hec-tor Kobbekaduwa without going to the ElectionCommissioner to hand over the nomination paperssent'Hr, Ratnasiri Wickrsmanaykec*"the Secretary,
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— —- ,, ….—. ..— i . i
instead."Counsel for the petitioner rightly conced- .ed that the observations, namely "It was seen overthe television at the handing over of the nomina-tion, who is the suitable person to be thePresident of this Country" and "yet it was possiblefor everyone to view . how modestly our Presidentbehaved on that occasion" were expressions ofopinion by the speaker and were not prohibited bysection 80(c) of the Act.
Section 12(1) of the Act provides that "nocandidate shall be nominated by means of more thanthree separate nomination papers."And section 13(1)provides that each nomination paper shall be deli-vered to the Commissioner at the place of nomi-nation…. by the candidate or the person who hassigned his nomination paper.
Counsel for the petitioner specified that thefalsity in the 2nd Respondent's aforesaid statementlay in the assertion that Mr. Kobbekaduwa had allthe nomination papers delivered to the Commissionerby Mr. Ratnasiri Wickremanayake, the Secretary ofthe Sri Lanka Freedom Party.
The question then arises whether the statementnamely that Mr. Hector Kobbekaduwa had sent Mr.Ratnasiri Wickremanayake, the Party Secretary, tohand over the nomination papers, to the Commis-sioner is a false statement that is struck bysection 80(c) of the Act. For the purpose of thepresent preliminary proceeding, it has to be assum- .ed that.that statement is untrue. But it is notevery incorrect statement that is penalised bysection 80(c).
Section 80(c) provides as follows –
"Every person who makes or publishes before orduring the election for the purpose of affect-ing the result of that election any false
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‘{statement of fact in relation to the personalcharacter-or conduct of any candidate s shallbe guilty of corrupt practice."
In order to bring the case within the ambitof section 80(c) read with section 91(c) of theAct, the petitioner must prove –
Firstly- that there had been a publication bythe candidate or with his knowledgeor consent or by his agent.
Secondly-the statement is a false statementof fact.
Thirdly- the statement is in re]ation to thepersonal character or conduct of theopposing candidate and not to hispublic or political character orconduct»
Fourthly-the statement is made for the pur-pose of affecting the result of theelection. It Bust be reasonablycalculated to prejudice the pros-pects of the candidate's election.
Thus what is open to objection is a falsestatement of facts with reference td the personalcharacter or conduct of the candidate. In what hascome to be known as the North Louth case reportedin (1910) 6 O.M & H 103,(1) it was observed byGibson,J., at page 163 that
"a politician for his public conduct may becriticised, held up to obloquy; for that thestatute gives no redress; but when the manbeneath the politician has his honour, vera-city and purity assailed, he is entitled to
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demand that his constituents shall not be.
poisoned against him by false statements con-taining such unfounded imputations."
In the Sunderland case, reported in (1896)5
O.N & H 53, (2) a similar view was taken by BaronPollock, who observed at page 62 that the principalwords here are 'any false statement of fact', butif it be a false statement of fact and if it be inrelation to the election and to the personalcharacter and conduct of the candidate, . the Courthas nothing whatever to do with the question whicharises in cases of libel as to whether there wasmalice. Any false statement, whether chargingdishonesty or merely bringing a man into contemptif it affects or is calculated to affect, theelection, comes within this Act…. Thus someperfectly innocent acts which may be ascribed to acandidate at the time of election may come withinthe mischief of the election statute.
The false statement of fact need not bedefamatory at common law, so long as it is a state-ment which is calculated to influence electors, asfor instance, a statement made in a hunting countythat the candidate shot a fox or a statement madeto promoters of total abstenence that the candidatehas taken a glass of wine; but it is essential thatit should relate to the personal rather than thepolitical character or conduct of the candidate.The words of the statement will" be interpretedaccording to their real and true meaning and notnece£sarily according to their literal sense. Thequestion to be determined is what in the circums-tances is the true meaning which the reader wouldplace upon a statement. The true meaning willdepend °n the occasion of the publication, thepersons published, the person attacked and thereaders intended to be addressed. Vide Halsbury'sLaws of England, 4th- Edition, Vol.15; paragraph790, pages 431 – 432.
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In the oft quoted case, known as CockeroouthDivision case, reported in (1901) 5 0.M & H 155 atpage 159, 160 (3) Darling J., stated the law thus –
" What the act forbids is this – you shall not .make or publish any false statement of fact inrelation to the' personal character or conductof the candidate. If you do, it is an illegalpractice. It is not an offence to saysomething which may be severe about anotherperson, nor which may be unjustifiable, norwhich may be derogatory, unless it amounts toa fa3.se statement of fact in relation to thepersonal character or conduct of such candi-date, and I think the Act says that there is agreat distinction to be drawn between a falsestatement of fact, which affects the personalcharacter or conduct of a candidate and afalse statement of fact which deals with thepolitical position or reputation or action ofthe candidate. If that were not kept in mind,this statute would simply have prohibited allsorts of criticism which was rot strictly truerelating to the political behaviour andopinion of the candidate. That is why it.carefully provides that a false statement, inorder to be an illegal practice, must relateto the personal character and personalconduct."
It could be noticed that in -prescribing therequirement that the false statement should be inrelation to the personal character of the candi-date, a distinction is intended to be dram betweenthe personal character of the candidate and hispublic or political character. The provision postu-lates that if a false statement is made in regardto the public or political character of thecandidate it would not constitute corrupt practice,even if it is likely to prejudice the prospects ofthe candidate’s election. This inhibition is
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.probably based on the theory that the electorswould not be deceived by a false statement orcriticism of the public character or conduct of acandidate. The public and political character orconduct of a candidate is open to public view. Evenif any false statement is made about his publicconduct or character, the .electorate would be ableto judge the allegations on the merits and may notbe misled by any false allegation on that behalf.But the position with regard to private or personal. character or conduct of the candidate is very.different. Circulation of false statements aboutthe private or personal character of the candidateduring the period preceding the election is likelyto work against the freedom of election itself,inasmuch as the effect created by false statementscannot be countered by a denial at proper time andso the constituency has to be protected against thecirculation of such false statements which arelikely to affect the voting of the electorate. Thatis why dissemination of false statements about thepersonal character or conduct of a candidate ismade a corrupt practice. The words "personal cha-racter or conduct" are clear and do not requirefurther elucidation or definition. The character ofa person may ordinarily be equated with his mentalor moral nature. Conduct connotes a person's actionor behaviour. Hence, for the false statement, toconstitute a corrupt practice under section 80(c)
of the Act, it must be in the nature of thedisclosure of some private scandal in what onemight call the secret life of the candidate and thereference to the personal character or conduct ofthe canditate attacked must be explicit andderivable from the plain meaning of the words inthe document. The reference must not be inferen-tial; an indirect implication does not infringesection .80 (c).
In Ram Singh vs. Inder Singh (The IndianElection Cases 1935 – 1950) by H.S.Dhobis, Vol.l,
431
CCHohbekadiFwa v. Jaya'/vsrdsne t'Sharvattcnda, >-M
page 341 (4) the Court observed at page 3472 –
" We are not at all impressed by the argumentthat tiie statement contains an innuendo to theeffect that S, Bhat Singh had been deceivingthe electorate. We feel no doubt that if acharge of this kind is made, it must besustained by a false statement directly relat-ing to the.personal character or conduct ofthe candidate and not one which by indirectimplication may be understood as satisfyingthat mandatory provision of law. The referenceto the personal character or conduct of thecandidate must be explicit and derivable fromthe plain meaning of the words used. To holdotherwise would, in our opinion, be to nullifythe effect of the qualifying clause "in rela-tion to the personal character or conduct ofany candidate'* for there is hardly a falsestatement of fact that can bs made, referringto a person, which cannot by a more or lesselaborate process of reasoning be shown tocontain an indirect reference to the personalcharacter or conduct of tnat parson. Theprinciple underlying this provision of the lawappears to us to be that the public characteror conduct of a public man or politician ispublic property and the risk of persons beingmisled regarding a candidate by a false state-ment relating to his public or politicalcharacter and conduct is therefore slight, andis out-weighed by the paramount necessity ofallowing free and unfettered public criticismof the public or’political acts of public menand politicians. Whilst on the other handfacts relating to Lite personal character orconduct of such men are, in the nature ofthings, not generally known and a falsestatement relating to the personal characteror conduct of a candidate way be calculated •
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seriously to mislead the electors to the.prejudice of such candidate."
Though it is clear that the statute wants to.make a broad distinction between public characteror conduct on the one hand and private or personalcharacter or conduct on the other, a sharp andclear-cut dividing line cannot be drawn disting-uishing one from the other. In discussing thedistinction between private or personal characteror conduct and public character or conduct, some-times reference is made to the "man beneath, thepolitician" and it is said that if a statement offact affects the man beneath the politician, ittouches his private- character and if it affects thepolitician, it does not touch his private charact-er. There may be seme false statement of fact whichclearly affect the private character of the candi-date; if, for instance it is said that the candi-date is a bribe taker, there can be no doubt thatthe statement is in regard to private character andconduct, and so if the statement is shown to befalse it would undoubtedly be a corrupt practice.Vide Illangaratne vs. G.E. de Silva, 49 N.L.R. 169at 172-173 and 179(5); and Don Philip vs,
Illagaratne , 51 N.L.R. 561(6). If the socio-
economic policy of the Party to which the candidatebelongs is falsely criticised and it is suggestedin strong words that the said policy would causethe ruin of the country, that clearly would becriticism, though false, against the public charac-ter of the candidate and as such would be outsidethe purview of the statute. But if a statementalleges that a candidate is buying votes by offer-ing bribes that clearly and unequivocally affectshis private character, even though in a sense it ishis public character which is falsely criticised.It is idle to contend that it is a false statementonly against the public character of the candidate.Having regard to the moral turpitude or personaldelinquency involved in the allegation that state-
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ment in question certainly affects his privatecharacter as well.
Having regard to the propositions enunciatedabove, can it be said that the impugned statementinfringes section 80(c)? There is nothing expresslyderogatory of the personal character or conduct ofthe petitioner. In fact the burden of Mr. Shanmuga-lingam's submission was that the sting lies in theinference from the statement. Further the referenceis to his conduct qua candidate for Presidency, onthe occasion of his submitting his nominationpapers to the Commissioner in terms of section.13(1) of the Act. The statement does not cast anyreflection or aspersion on the honour, veracity orpurify of the man beneath the public man; at theworst, it is merely a criticism of the petitioner'spublic conduct. Such criticism does not come withinthe mischief envisaged by the law.
Counsel for the petitioner submitted that theimpugned statement which is sandwiched between twoexpressions of opinion, should be considered in itscontext. He contended that it would have conveyedto the audience the inference that while thePresident (1st Respondent) was modest, Mr.Kobbe-kaduwa was arrogant. From the fact that the speakerhad described the President's conduct as modest, itdoes not follow from his omission to comment on Mr.Kobbekaduwa’s behaviour that he intended the audi-ence to draw the inference that Mr. Kobbekaduva wasarrogant. No imputation or aspersion is cast whenone candidate is praised and nothing is statedabout the other. There is no express reference tothe personal character or conduct of Mr. Kobbeka-duwa. Counsel's submission invloves reading anindirect implication in order to bring the state-ment within the ambit of section 80(c).
In my view the averments relating to the 1st,2nd, 3rd and 4th.charges of corrupt practice under
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section 80(c) do not disclose any offence underthat section.
SECOND OBJECTION
Illegal Practice
The fifth charge contained in the petition ofthe petitioner is that of "printing, publishing anddistributing the publication 'X'bythe third respon-dent and the United National Party as agents of thefirst respondent, withput the said publicationbearing upon its face the names and addresses ofits printer and publisher" – an illegal practiceunder section 85 of the Act.This section providesthat "a candidate or his agent who prints, publi-shes , distributes or causes to be printed, publishedor distributed any handbills etc., which refers toan election under the Act and which does not bearupon its face the names and addresses of itsprinter and publisher shall be guilty of an illegalpractice." The basis of the petitioner’s charge isthe allegation that the document !X' does not bearupon its face the name and address of its printerand publisher . -This allegation lacks any founda-tion. For, the-document ’X' instead of substan-tiating this charge negates it'. Tfie document * X*exhibits the statement "Printed at the StatePrinting Corporation and Published by Pathmasiri ofGothatuwa, Angoda.-" When'- confronted with thispatent contradiction between the petitioner's aver-ments and the document 'X' Cousel for the peti-tioner submitted that what was meant was that thedocument 'X' does not bear the name and address ofits true printer and publisher. This ingeniousclarification cannot be accepted. The petitioner'saverment in his petition and affidavit, that thepublication 'X' does not bear upon its face thenames and addresses of its Printer and Publisher"does not lend support to this far fetched construc-tion. Petitioner has neither in his petition nor in
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his affidavit^ suggested that the name and address,of the Printer and Publisher appearing in document'X* are false and not the name and address of thetrue printer and publisher of ’X’.Section 96 of theAct requires the petition to state concisely thematerial facts on which he relies and to set forthfull particulars of the illegal practices that healleges. The petitioner cannot be allowed to departfrom his statement of material facts and theparticulars of illegal practice set out by him inhis petition and amend his petition after the timeprescribed by section 102(2). Counsel's explanationinvolves setting up a new case, diverging fromthat adumberated in the petition. Such a course isnot permissible. Since there is a sufficientidentification of the Printer and Publisher on thepublication "X9. the 3rd respondent and the UnitedNational Party could, have had it distributedwithout rendering themselves guilty of illegalpractice under section 85 of the Act. The peti-tioner's charge of 13.legal practice under section85 of the Act, does not rest on any basis of fact;the charge, therefore, fails.
Further, neither in the petition nor in hisaffidavit does the petitioner suggest that thedocument ’X’ refers to the Presidential Election.An ingredient of the offence of illegal practiceunder section 85 of the Act is that the impugneddocument must refer to an election under the Act.Ex facie the document 'X' does not refer to thePresidential Election held on 20th October 1982. Asstated by Nagalingam, J., in Don Philip vs.Illangaratne, 51 N.L.R. 561 at 573 (6).
"Before a document could be said to be onewhich falls within the class of publicationreferred to in section 58 (1) (c) of theParliamentary Elections (Order in Council)1946 ( which corresponds to section 85 of theAct). It must be shown that it either express-
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ly or at any rate by ..implication refers tothe election and any document, however mis-chievous it may be in its effect on the elec-tion itself, if it has no reference to theelection, though made use of for false propa-ganda against the candidate at the election,is outside the scope of this section."
Counsel for the petitioner submitted thatthough -the document 'X' does not expressly refer tothe Presidential Election, yet by implication itrefers to it. In my view to imply such referenceone cannot look outside the document. The documentmust contain the indicia pointing to the Presi-dential Election. The impugned statement does notsatisfy the test. Hence the charge of illegalpractice under section 85 fails on this groundalso.
Further the agent referred to in the body ofsection 85 is the election agent or authorisedagent of the candidate and not every body who conieswithin the wide concept of "agent" in election law.It is to be noted that only "the candidate or hisagent11 who can be found guilty of an illegalpractice as referred to in section 85 and not anyagent in election law. It is significant that incontrast to section 80 (1) which makes every personwho commits any one of those offences referred tothere guilty of corrupt practice, section 85 of theAct restricts the persons who can be guilty ofillegal practice under it to the candidate or hisagent only. The rationale of this limitation isthat the election agent acts for the candidate andmay be described as his alter ego for the purposeof his election.
Section 58(l)(c) of the unamended Parliamen-tary Order in Council 1946 made it a corruptpractice for any person to print or publish etc.,any handbill which does not bear upon its face the
SC _1 Kobbekoduwg v. Jayawardene (Sharvananda, J.)437
name and address of it. This section 58(c) wasrepealed by Act No.6 of 1956. It would appear thatat the present stage of the development of ElectionLaw, both under the Parliamentary Elections ActNo.l of 1981 (Section 86) and Presidential Elec-tions Law No. 2 of 1981, the candidate or hiselection or authorised agent alone is now penalisedfor such printing etc., without the name andaddress of the printer and publisher. The marginalnote to section 85 also supports the restrictiveinterpretation that the word 'his agent* in thebody of the section is confined to election agent .and authorised agent of the candidate. It is notthe petitioner’s case that either the third respon-dent or the United National Party is the electionagent or authorised agent of the 1st respondent. Onthis ground too the charge is not tenable.
In my view the averments in the petition donot disclose the commission of the offence ofillegal practice by the 1st and /or 3rd respondent.
THIRD OBJECTION
Failure to join the U.N.P. as a Respondent
Counsel for the petitioner contended that theword 'person' occurring in the Act referred only toa natural person. Counsel for the respondents onthe other hand argued that the word included also .an artificial or legal person and an unincorporatedbody of persons, such as an organisation as theUnited National Party or the Sri Lanka FreedomParty. Section 2 (c) of the Interpretation Ordi-nance (Cap. 2) provides that the expression'person', unless there be something -repugnant inthe subject or context, *includes a body of personscorporate or. unincorporate."
Section 95 (l)(b) makes it mandatory that thepetitioner shall join as respondent to his election
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petition "any other, candidate or person againstwhom allegations of any corrupt or illegal practiceare made in the petition."
'Corrupt practice' under the Act, consists ofpersonation, treating, undue influence, bribery andpublishing of false statements (vide sections 76-80of the Act)*
Section 80 provides that any person convictedof corrupt practice by the High Qourt shall, in thecase of personation be liable to. rigorous imprison-ment and in any other case to a fine not exceedingfive hundred, rupees or to imprisonment and everyperson so convicted, would become incapable for aperiod of seven years of being registered as anelector or of voting under the. Act.
"Illegal practice" under the Act consists ofmaking certain payments,publication of false state-ments in any newspaper, certain employment ofpersons for payment for the purpose of promotingthe election of a candidate, and printing orpublishing of election publications by the candi-date or his agent which do not bear the names andaddresses of the printer and publisher (Videsections 82,85 of the Act).
Section 86 prescribes the punishment for thecommission of the offences of illegal practice. Itprovides :-
"Every person who commits an illegal practiceshall on conviction by the High Court beliable to a fine not exceeding three hundredrupees and shall by conviction become incapa-'ble for a period of three years from the dateof his conviction of being registered as anelector or of voting at en election under thisAct."
.sc.
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439
Counsel for the petitioner opened his case bysubmitting that only a natural person can committhe offence of corrupt or illegal practice butconfronted with the question whether an incor-porated company could not commit the • corruptpractice of bribery or, being the proprietor of anewspaper, could not commit the illegal practice ofpublishing false reports in its newspaper heconceded that a juristic person like an unincor-porated company can commit such offences. But hepersisted in his contention that an unincorporatebody like a firm or an organised political party isnot a "person" in the eye of the law and cannot beconvicted of such offence; as by its very nature,it cannot be registered as an elector or cannotvote and hence cannot suffer the penalty consequenton a conviction for such offence. The argumentfinds its refutation in the concession that anincorporated company can commit a corrupt orillegal practice. The physical impossibility ofmaking the company suffer the consequent punishmentof being deprived of civic rights does not ensureto the benefit of the company and insmmise it fromliability for corrupt or illegal practice when thepunishment theretofor includes a fine. Since fineis the only type of punishment appropriate to anincorporated or unincorporated body, the company orbody can be fined for the commission of the offenceof corrupt or illegal practice. Where the onlypunishment for an offence that the .Court can imposeis corporal, the Court will not stultify itself byembarking on a trial in which if a _ verdict ofguilty is found, no effective order by way of sen-tence can be made (R.V.I.C.R. Haulage. (1944) 1A.E.R. 691 at 693.(7)). Since a fine can be imposedand recovered from an incorporated or unincorporatebody, an allegation of any corrupt or illegalpractice can be made against such a body as anorganised political party. It is a matter of signi-ficance that the punishment for the corrupt prac-
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. tice of personation is rigorous imprisonment (vide,section 80(1)(a)). Neither a corporate nor anincorporate body can commit the offence of persona-tion.
In the distant case, the petitioner, thoughhe has alleged in paragraph 7 of his petition thatthe third respondent and the United National Partyacted as agents of the 1st respondent in thePresidential Election and that they had committedthe illegal practice of causing to be printed,published or distributed the publication, *X' whichdoes not bear upon its face the names and addressesof its Printer and Publisher, had omitted to jointhe United National Party as respondent.
In view of the peremptory requirement ofsection 95(1) (b), when an allegation of illegalpractice has been made in the petition against– theUnited National Party, the United National Partyshould have been made a party. It is to be . notedthat section 96(d) requires that the electionpetition should set forth the names of the partiesalleged to have committed the illegal practicecomplained of and the petitioner had in compliancewith that requirement, stated that the thirdrespondent and the. United National Party committedthe. illegal practice alleged by him.
It is a principle of substantive law that forthe preservation of the purity and freedom ofelections, the member returned shall be answerablenot only* for – hl<3 cwii acts,-but for the acts of, hisagents wh^m he puts in his place to represent himin the conduct of the election. Section 91 providesfor an election to be avoided on the ground that acorrupt or illegal practice was committed in con-nection with ‘the election by the candidate .or byany agent of the candidate.
An unincorporated body like a political party
SC.Kobbekaduwav.Jayawatdene (Sharvananda. J.)44J
can be the agent of a candidate for electionpurposes. Don Philip vs. Illangaratne , 51 N.L.R.561 at 571 (6).
An association of persons or a society or aPolitical Party and /or its prominent members, whoset up the candidate, sponsor his cause and work topromote his election may be aptly called the"agent" of the candidate for election purposes,A.I.R. 1959 Assam p. 200 at 203, followd in A.I.Rm1961 Rajasthan, 122 at 127
The Presidential Elections Act No.15 of 1981,like the Interpretation Ordinance section 2(c)recognises that a body unincorporate may have ajuridical personality. We have reached the pointforeseen by Professor Dicey long ago.
"When a body of twenty or two thousand or twohundred thousand men bind themselves . togetherto act in a particular way for some commonpurpose, they create a body which by no fic-tion of law, but by the very nature of things,differs from the individuals of whom it isconstituted."
Vide Lord Denning in Willis vs. Associationof Universities (1964) 2 A.E.R. 39 at 42 (8).
A recognised political party though it is abody unincorporate is endpwed with a quasi-legalpersonality and status by the Presidential Elec-tions Act read with the Parliamentary Elections ActNo. 1 of 1981. It is identified by the Act as aseparate legal entity, apart from its members. Ithas been enabled to nominate candidates for thePresidential election. Similarly a political partyother than a recognised political party is recog-nised by the Presidential Election Act – vide sec-tion 12 and Form 'A' in the First Schedule to theAct. Section 20(1) directs the Commissioner to
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allot to the candidate nominated by a recognisedpolitical party the approved symbol allotted tothat party under the Parliamentary Elections Act,1981.
Counse^ ^or the petitioner pointed out theprocedural difficulty of enabling the UnitedNational Party to be joined as respondent to hispetition. In our law no action can be brought byor against any party other than a natural personunless such party has been given by statute,expressly or impliedly either a legal person underthe name by which it sues or is sued or a right tosue or be sued by that name.A trade union though itis a body unincorporate has thus been enabled tosue or be sued in its registered name. Bonser vs.Musicians Union, 1956, A.C. 104 (9). He submittedthat a political party cannot, according to rulesgoverning civil procedure, be made a party respon-dent under its name.. The difficulty envisaged byCounsel cannot be allowgd to defeat the salutary6bject of making the party against whom an alle-gation of corrupt or illegal practice is made arespondent to the petition. Substantive law cannotbe jettisoned because of procedural problems. Thelaw is however not so powerless. Presidentialelection-petition proceedings are sui generis'. Therules governing such proceedings are set out in theFourth Schedule to the Act. Section 105(2) providesfor casus omissus; it states that matters notprovided for by the Act or by the rules containedin the Fourth Schedule to the Act, shall be dealtwith in such mtcner as the Chief Justice shalldirect.In the circumstances, as Counsel for theRespondents rightly pointed out the petitionercould have cited the United National Party as aRespondent and applied for directions from theChief Justice for the further steps to have theparty represented in the proceedings. The provi-sions of section 96 are mandatory and failure toduly comply with same renders the petition invalid
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. . Kobbekaduwa v. Jayawardene {Sharvananda, J.}
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and a nullity. lATair vs. Teck (1967) 2 A.E.R. 34,.
P.C. (10). Wijewardetta vs. Senanayake 80 C.L.W. 1(11) affirmed in appeal in 74 N.L.R. 97.
In this case the petitioner has filed one .petition challenging the 1st respondent's electionon the grounds that the respondents had committedcorrupt and illegal practices and has furnishedsecurity on the basis of one petition. The petitionhas to stand or fall as a single petitidh and notas an aggregate of petitions depending on thenumber of grounds of challenge. In the circums-tances it is not open to the petitioner to seek tosalvage his petition by stating that the failure tojoin the United National Party as a Respondentagainst whom the allegation of illegal practice wasmade avoids only that charge but that the petitionis good for the purpose of maintaining the othercharges preferred in it. In my view, this courseof action is not available to the petitioner; forthe vice of the omission to join the UnitedNational Party to his election petition whichincluded an allegation of illegal practice againstthe Party affects the entire petition and rendersthe entire petition a nullity. Had there been twopetitions,- orporating the charges of corrupt
practice : d tne other the charge of illegalpratice the position would have been different; thepetition relating to the corrupt practice wouldhave been saved. But, we have only one petitionand that petition has not complied with theimperative requirements of section 95.
Counsel then submitted that if the petitiondoes not disclose an offence of illegal practiceunder section 85 of the Act, then tKat charge isnot a valid charge in law and has to be disregardedand that in that event, the failure to join theUnited National Party would not," in the circums-tances be of any relevance. I cannot agree withthis contention. For what section 95 postulates is
_-444Sri Lanka Law Reports[1983]1 Sri LR,
I
I”—
_ an allegation of corrupt or illegal practice andnot the establishment thereof. Having made theallegation in his petition, the petitioner cannotmake default in complying with the law relating tothe allegation whether it is tenable in law or not.I uphold this objection and dismiss the petition onthis ground too.
FOURTH OBJECTION
In the affidavit of Randeni Arachchige SarathWijesekera, that was attached to the petition, hestates in paragraph 3 that on the 17th October 1982"supporters of the United National Party went aboutin our area distributing leaflets,, handbills andadvertisements on behalf of the United NationalParty candidate Mr. J.R. Jayewardene and gave me acopy of a Ration Book marked 1X*It was in rela-tion to the publication 'X' that the illegalpractice under section 85 is said to have beencommitted.
Objection is taken that the names of the saidsupporters of the United National Party, referred,to in the affidavit have not been given.
According to paragraph 7 of the petition theillegal practice alleged to have been committed bythe 3rd respondent and the United National Party,as agents'of the 1st respondent is that "they hadcommitted an illegal practice of… causing to beprinted, published or distributed the said publi-cation marked 'X', which does not bear upon itsface the name and address of its Printer andPublisher." No complaint has been made against thesupporters of the United National Party that theyhad committed any illegal practice.
Section 95 (l)(b) requires only the; personagainst whom an allegation of any illegal practiceis made in the petition to be made respondent.Sinre the petitioner has not made any allegation in
.90.Kobbekaduwav. Jayawardene (Sharvananda, j.)449.
. .his petition that the said – United National Party -supporters, had committed any corrupt or illegalpractice, they need not have been joined asrespondents to the petition.- The above averment inMr. Wijesekera's affidavit was intended to supportthe allegation in the petition that the UnitedNationl Party had committed the illegal practice ofcausing to be distributed the impugned publication'X*. Though it does not expressly state that theUnited National Party had caused the said document'X1 to be distributed through its supporters, it isonly on that footing that the affidavit can be saidto have any relevancy. Section 96 makes a distinc-tion between 'material facts' and ‘particulars?Material facts are those which go to make out thepetitioner's case against the respondent. The word'material' means necessary for the purpose offormulating the charge and if any one material factis omitted the statement of claim is bad and liableto be struck out. In this . case, it cannot beseriously stated that the petition is flawed forwant of concise statement of the material facts onwhich the petitioner relies. The function of parti-culars is quite different. It is to fill thepicture of the petitioner's charge against therespondent with information sufficiently detailedto enable the respondent to become aware of thecase he has to meet and ,to prepare for.the trial.An election petition is not liable to' be- dismissed' in limine merely because full particulars of thecorrupt practice alleged in the petition are notset out.
Section 97(1) enables the Court to allow theparticulars specified in the petition to be amendedor amplified in such manner as may in the opinionof the Court be necessary for ensuring a fair andeffective trial.
In my view there is no substance in thisobjection and I reject this objection.
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1':—
FIFTH OBJECTION
As stated earlier the burden of thepetitioner’s allegation of illegal practice under' section 85 of the Act is that the 3rd Respondentand the United National Party as agents of the 1stRespondent had committed the illegal practice ofcausing to be printed, published or distributed theimpugned publication marked ’X’.
Section 96(d) requires that, the petition"shall be accompained by an affidivit in support ofthe allegation of such corrupt or illegal practice-and the date and place of the commission of suchpractice.
The function of an affidavit is to verify thefacts alleged in the petition. The affidavit furni-shes prima facie evidence of the facts deposed toin the affidavit. Section 13 of the Oaths and Affir-mation Ordinance (Cap.17) furnishes the sanctionagainst a false affidavit by making the deponentguilty of the offence of giving false evidence. Inan affidavit a person can depose only to factswhich he is able of his own knowledge and obser-vation to testify. It is apparent from a reading ofthe petitioner's affidavit, that the statement offacts relating to the printing, publication anddistribution of the publication 'X' is not testi-fied to by the petitioner from his; own knowledgeand observation. That is why he has filed – theaffidavit of Hr. Wijesekera in support of thealleged illegal practice. The illegal practicealleged in paragraph, 7 of the petition is • that" the 3rd respondent and the United National Partycaused to be printed, published or distributed thesaid publication 'X'. Wijesekera’s affidavit doesnot testify to any of these matters and does notsupport this allegation.On this view of the matter,there is substance in the objection of respondents
.SC- Kobbekadtmay.Jayawardene. (Sharvananda, J.)447t
1 – – |
. that the petition is not accompanied by thenecessary affidavit.
Since the petition does not show that therespondents have committed any corrupt or illegalpractice, in connection with the- Presidential elec-tion, the petition challenging the election of the1st respondent as President is not warranted in lawand is untenable. The petition is, also, notproperly constituted in terms of section 95(1)(b)
of the Act. I therfore dismiss the election peti-tion of the petitioner and direct the petitioner topay the 1st respondent Rs. 4500/- and the 2nd and3rd respondents Rs. 3000/- each as costs of this.proceeding•
. WANASUNDERA, J., – I agree.S0ZAs J.,-I agree.
RANAS1NGHE, J*, -1 agree.
Petition dismissed.