KUMARATUNGE v. JAYADODY AND ANOTHER

005-SLLR-SLLR-1984-2-KUMARATUNGE-v.-JAYADODY-AND-ANOTHER.pdf


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llangatilaka v. The Republic of Sri Lanka (Colin-Thome', J.)
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KUMARANATUNGE
v.
JAYAKODY AND ANOTHER
COURT OF APPEAL
H D TAM8IAH, J (ELECTION JUDGE).
ELECTION PETITION No. 7 OF 1983.
ELECTORAL DISTRICT No 17 – MAHARA.
JANUARY 30. 1984. FEBRUARY 1.2. 3. 6. 7 AND 8. 1984.
Election Petition- Election held pursuant to Article 168 (1) (d) (hi) – Petition toinvalidate election on the ground inter aha of the corrupt practice of making falsestatements of fact in relation to the personal character and conduct of thepetitioner – Section 58 (d) read with section 77 (d) of the Ceylon (ParliamentaryElections) Order-m-Council 1946 – Article 35 of the Constitution – Presidentialimmunity – Difference between interpretation and application of a statute
The election for the Mahara seat in Parliament was held on 18th May. 1983, pursuantto Article 168 (1) (d) (in) (as amended by the Fifth Amendment) of the Constitution. Thepetitioner and the 1st respondent were among the candidates. The 1st respondentwon the election defeating the petitioner by 45 votes. The petitioner then filed anelection petition on 9.6.1983 seeking to have the election declared void on thegrounds inter alia that the 2nd respondent as agent of the 1 st respondent made falsestatements of fact in relation to the personal character and conduct of the petitioner forthe purpose of affecting the return of the petitioner at the said election – a corruptpractice under section 58 (d) read with section 77 (c) of the Ceylon (ParliamentaryElections) Order-in-Council 1946.
It was admitted that the 2nd respondent held the office of President of the Republic ofSri Lanka.
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The defence pleaded Presidential immunity and that in any event the statementscomplained of did not constitute statements relating to the personal character orconduct of the petitioner within the meaning of the said section 58 (cf) of the Order inCouncil Further, the affidavit was bad.
Held –
The mere reliance on a constitutional provision by a party need not necessarilyinvolve interpretation of the Constitution. Interpretation is the process of reducing theStatute applicable to a single sensible meaning – the making of a choice from severalpossible meanings Application on the other hand is the process of determining whetherthe facts of the case come within the meaning so chosen. The language of Article 35(11 of the Constitution is so clear and unambiguous that the need for interpretation ofthis Article does not arise. This Article clearly confers absolute personal immunity on thePresident, during the tenure of his office, from being proceeded against in respect ofanything done or omitted to be done by him either in his official or private capacity in anyCourt or Tribunal It is not an immunity for all time but limited to the duration of hisoffice
There are two aspects to Article 35(1) : The President is immune from all proceedingsand the Court is barred from entertaining and continuing any proceedings against him.
Them are only three exceptions to Presidential immunity and they are set out in Article
35 (3)
d) Proceedings in relation to the exercise of any ministerial function which he assigns tohimself under Article 44 (2) of the Constitution
(ii) Impeachment proceedings under Article 38 (2) read with Article129 (2) of the Constitution.
tin) Election petition proceedings relating to the election of the President himself underArticle 130 (a) of the Constitution.
Under the 1972 Constitution the President enjoyed immunity from civil or criminalproceedings But under that Constitution the President was a constitutional figureheadHe Had no executive powers, he was not a member of the Cabinet and could notengage ,n politics. Under the 1978 Constitution the President is an executive Presidentand the head of the Cabinet and he could engage in political activities Hence his rangeof immunity was widened to protect him from proceedings of any description in anycourt fir tribunal
Thn Ceylon (Parliamentary Elections) Order-in-Council 1946 has not been elevated toconstitutional status by the Fifth Amendment nor made part of the Constitution. Therequirements of joinder of parties set out in section 80A (1) (b) of the Order-in-Councilcannot supersede Article 35 (1) of the Constitution but must yield to it
A u.iriic.uiar enactment like Article 35 (11 is an exception to and prevails over a generalprm'itnot like section 80A( 1) (6) Hence no petition can be instituted impleading the
President y:, 3 responded'
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Per Tambiah, J.-
"The language of Article 35 is clear and unambiguous. Article 35(1) embraces all types,of proceedings and confers a blanket immunity from such proceedings, except thosespecified m Article 35 (3). The fact that the immunity will be misused is whollyirrelevant "
The sole and only question in the case was whether the President committed thecorrupt practice of making a false statement. The 1st respondent is only madevicariously responsible.
If the allegation of a corrupt practice by the 2nd respondent goes out, there is nothingfurther in the election petition to inquire into. It is an empty petition and has to bedismissed
An objection that even if the false statement alleged was made it does notconstitute a false statement in relation to the personal character or conduct of thecandidate can be considered preliminarily.
The sense in which the alleged statements were understood by persons present at themeeting is irrelevant'. It is for the Court to interpret the alleged statements. Thestatements alleging that the petitioner was taken into custody because of his plans tocreate disturbances in the country, because he was a Naxalite and because of hisdeclaration that the President would be hanged, disembowelled and killed and his bloodtrod on reflect the petitioner's public and political conduct and his political philosophy.The reference to him and his associates is as politicians, the disturbances planned werepolitical and the assasination envisaged was political. To call a person a Naxalite is not areference to his personal character and conduct. Hence no corrupt practice is in anyevent disclosed
The affidavit filed does not state which facts are based on personal knowledge andwhich based on information. It is obvious that the words alleged to have been uttered bythe 2nd respondent at the meeting are what the petitioner gathered from others whohad been present at the meeting. The petitioner has failed however to disclose thesources of his information and the grounds of his belief. The affidavit filed by thepetitioner therefore fails to perform its functions of verifying and confirming the factsstated in the petition and is bad.
Cases referred to :
(l.i Bilhmoria v. Minister of Lands (1978-79) 1 S.L.R. 10. 16.
( 21 Wijewardena v. Senanayake. (1970) 80 CLW 1. 3. 4.
( 3) Wijewardena v. Senanayake, (1971) 74 N.L.R. 97 (S.C.)
Rajapakse v. Kathiragamanathan (1965) 68 N.L.R. 14.
( 51 Shiv Chand v. Ujagar Singh and Another (1978) 4 SCC 152, 155, 156 ; AIR1978 S.C. 1583. 1584.
( 61 Kesavananda Bharati Sripadagalram v. State of Kerala, AIR 1973 SC 1461 paras548. 666, 918. 968.
( 7) Kobbekaduwa v. J. R. Jayewardene and Others – S. C. No. 3/82(S C. Minutes of 10.1.1983).
(8• North Louth Case. (1911) 6 O'M & H. 103.
(9> Cockermouth Case. (1901) 5 O'M & H. 155. 159. 160.
110i SarlaDeviv Birendrasingh. AIR 1961 M.P. 127.
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Nimal Senanayake. S. A. with W. P. Goonetilleke, Saliya Mathew, Miss A. B.Dissanayake, L. M. Samarasinghe instructed by Nimal Siripala de Silva lor the petitioner.
K. N. Choksy, S. A. with George Candappa, S. A., Mark Fernando, Ben Eliyatamby.Daya Pelpola, M Zanoon, Lakshman Perera, Ronald Perera and Nihal Fernandoinstructed by Herman Perera for the 1 st respondent.
2nd respondent absent and unrepresented
K. M. M. B. Kulatunge, S. A. (Solicitor-General) with Sarath Silva, DeputySolicitor-General and Ananda Kasturiaratchi. State Counsel, as amicus-curtae for theAttorney-General
Cur. adv. vult.
March 15, 1984.
TAMBIAH, J.
When the Constitution of the Democratic Socialist Republic of SriLanka (1978) was enacted, the National State Assembly electedunder the Constitution of Sri Lanka (1972) was already functioning.So it was necessary to enact Article 161 (a) ((1978) Constitution)which states that the Members of the National State Assembly shallbe deemed to have been elected as Members of the first Parliament.The first Parliament was to continue, unless dissolved earlier, for sixyears from 4th August, 1977, i.e., until August, 1983 (Article 161
), but the 4th Amendment to the Constitution, which became lawafter it was approved by a Referendum of the People, extended the lifeof the first Parliament by a further six years, i.e., until August, 1989.
The Members of the first Parliament were elected under the Ceylon(Parliamentary Elections) Order-in-Coucil, 1946, as amended; theelection was not according to the principle of ProportionalRepresentation. Article 99 which provides for ProportionalRepresentation applies to future Parliaments. On the date of theenactment of the 1978 Constitution, the Elections Order-in-Council,1946, was in force and it was kept alive by Article 168 (1). Inter-alia,Part IV (Elections) and Part V (Election Petitions) of the ElectionsOrder-in-Council were repealed by s. 1 30 of the ParliamentaryElections Act, No. 1 of 1981, which became law on 22nd January,1981
Article 161, which specifically deals with the 1st Parliament, insub-paragraph (d) (in) S'AS out the manner of filling vacancies whenthey occur: on being inlormed by the Secretary-General of Parliament,the Commissioner of Elections shall require the Secretary of thepolitical party to which such member belongs to nominate a member
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of such party to fill such vacancy On receipt of such nomination, theCommissioner shall declare such person to be Member for theelectoral district in respect of which the vacancy occurred.
The 5th Amendment to the Constitution was enacted and it becamelaw on 25th February, 1983 S. 2 of the 5th Amendment added aproviso to Article 1 68 (d ) (m), in terms of which, where the Secretaryof a political party fails to nominate a person to fill the vacancy, theCommissioner of Elections is required to inform the President whoshall within 30 days of the receipt of such information, order theCommissioner to hold an election for the electoral district in respect ofwhich such vacancy has occurred. The proviso thereby filled a lacunain Article 161 (d) (iii).
As the 1 st Parliament was elected not on the basis of ProportionalRepresentation, and as election on the basis of ProportionalRepresentation would only apply to future Parliaments, the 5thAmendment resuscitated, inter alia, those provisions of the ElectionsOrder-in-Council, 1946, which dealt with the conduct of Elections andElection Petitions (Parts IV and V), This the 5th Amendment did bystating that the aforesaid parts, notwithstanding their repeal, shall "bedeemed to be in force". The 5th Amendment further stated that theaforesaid parts shall apply to Elections and Election Petitions, "mutatismutandis, and except as otherwise expressly provided in theConstitution".
The election for the Mahara Electorate, held on the 18th of May,1983, was pursuant to Article 168 (1) (d) (iii), as amended. At thesaid election, the petitioner and the 1 st respondent, amongst others,were candidates and the 1st respondent polled 24,944 votes, thepetitioner 24,899 votes, and the 1 st respondent was returned by amajority of 45 votes.
The present election petition was filed on 9.6.83 by the petitionerand fie seeks to have the election declared void on the ground that the2nd respondent, as agent of the 1st respondent, committed thecorrupt practice of making false statements of fact in relation to thepersonal character and conduct of the petitioner for the purpose ofaffecting the return of the petitioner at the said election, in terms of s.58 (d) read with s 77 (c) of the Ceylon (Parliamentary Elections)Order-in-Council, 1946.
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The petitioner alleges –
That on 8.5.83, at public meetings held at Malwathuhiripitiyaand Narammala, in support of the 1st respondent'scandidature, the 2nd respondent uttered the following words -"It is with my full knowledge that certain individuals belonging toopposition political parties were taken into custody afterPresidential Elections and the Referendum. There had beenplans made by those individuals to create various disturbancesm this country. After Tyrrel Gunatillake was entrusted to hold aninquiry on these people we released the Naxalites, but after theinquiry report on 21 st we will suitably punish those people whoare guilty." (Para 4 A of the petition).
That on 8.5 83, at public meetings held at Malwathuhiripitiyaand Narammala, in support of the 1st respondent'scandidature, the 2nd respondent uttered the following words -"Vijaya Kumaranatunga is supposed to be saying that he wastaken into custody. He was not just taken into custody but withmy full knowledge. Those who are creating disturbances cannotbe allowed to play with the people. If you vote for VijayaKumaranatunge the people of this seat will only find themselvesabandoned. Therefore when voting vote with due'■onsideration." (Para 4B of the petition).
That on 8.5.83, at a public meeting held at Malwathuhiripitiya,in support of the 1st respondent's candidature, the 2ndrespondent uttered the following words – "The candidate for SriLanka Freedom Party for the seat has announced that we kepthim in custody. He was kept in custody according to my order.Why is that ? At Mr. Kobbekaduwa's meetings some personshave said that if they win. J. R. will be hanged, J R.'s intestineswill be taken out. Another person had said that I will be killedand they will walk on my blood to President's House We gotC I D Tyrrel Gunathilleke to make inquiries to find out thepurpose behind these statements Vijaya kumaranatunga wastaken into cusV 1/ to inquire into that We will get that reportbefore the 21st It will be decided accordingly whether the
i
suspects will be prosecuted or not." (Para 4C of the petition)
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Mr. Senanayake, for the petitioner, concedes that at all timesmaterial to this petition, including the date on which this petition wasfiled, the 2nd respondent held office as President of the Republic of SriLanka.
On behalf of the 1st respondent, four objections, in limine, havebeen raised and the 1st respondent has asked this Court, to rejectand/or dismiss the petition The objections are
the 2nd respondent could not have been made aparty-respondent in these proceedings . his joindercontravenes Article 35(1) of the Constitution , the petitioncould not have been instituted ; the Court could not haveentertained this petition ; no process could have issued on thepetition, and the petition should now be rejected. I. as theElection Judge, will not proceed with the petition and makeorder either dismissing or rejecting it.
Rs. 10,000 paid as security is inadequate and in terms of Rule12 (3) of the 3rd Schedule to the Elections Order-in-Council,1946, the petition should be dismissed.
there is no proper affidavit in support of the allegation of corruptpractices pleaded in the petition and therefore there is no validpetition before Court in terms of s 80B {d) of theOrder-m-Council. The petition, therefore, cannot be proceeded
with.
the statements alleged to have been made by the 2ndrespondent do not in law constitute false statements of fact inrelation to the personal character or conduct of the petitionerand these statements do not fall within the provisions of s.58(1) (c/) of the Order-in-Council. If so, the petition does notdisclose the Commission of corrupt practices and there isnothing upon which this Court could proceed to inquire into.
On the question of inadequacy of security, the petitioner, on the dayhe presented his petition (on 9.6.83) deposited Rs. 20,000 with theCommissioner of Elections, and on the next day, deposited a furthersum of Rs. 10,000, totalling Rs. 30,000. In view of this, Mr. Choksystated that he was not proceeding with his objection in regard tosecurity.
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I shall reproduce Article 35 of the Constitution in full :
"35. (1) While any person holds office as President, noproceedings shall be instituted or continued against himin any court or tribunal in respect of anything done oromitted to be done by him either in his official or privatecapacity.
Where provision is made by law limiting the time withinwhich proceedings of any description may be broughtagainst any person, the period of time during which suchperson holds the office of President shall not be taken intoaccount in calculating any period of time prescribed bythat law.
The immunity conferred by the provisions of paragraph (1)of this Article shall not apply to any proceedings in anycourt in relation to the exercise of any power pertaining toany subject or function assigned to the President orremaining in his charge under paragraph (2) of Article 44or to proceedings in the Supreme Court under paragraph(2) of Article 1 29 or to proceedings in the Supreme Courtunder Article 1 30 (a) relating to the election of thePresident:
Provided that any such proceedings in relation to theexercise of any power pertaining to any such subject orfunction shall be instituted against the Attorney-General".
Let me summarise the submissions that have been made on thesematters, by all learned Counsel.
Mr Choksy submitted
the sole ground for avoidance of the election is the allegationthat the 2nd respondent, as agent of the 1st respondent,committed corrupt practices under s. 58 (1) (d) read withs. 77 (c) of the Elections Order-in-Council. There is noallegation against the 1st respondent; he is only madevicariously liable for the acts of the 2nd respondent. Adetermination whether the election is void or not under s. 81depends on a finding against the 2nd respondent whether hehas or has not committed the alleged corrupt practices. Thereturned candidate must always be impleaded. S 80A (b)enjoins a petitioner to implead any other person against whomis alleged the commission of a corrupt practice. Such person is
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a statutory party. In substance, an election petition is aproceeding against three parties, the electorate, the returnedcandidate and the person against whom it is alleged that hecommitted a corrupt practice. A finding against the 2ndrespondent carries severe penalties – forfeiture of his civic rightsas well as a criminal prosecution.
The election petition is a proceeding against the 2nd respondentwithin the meaning of Article 35 (1).
Article 35 (1) precludes the President being made a party to anyproceedings. Section 80A (1) (b) of the ElectionsOrder-m-Council, requires his joinder in election petitionproceedings. The Constitution is supreme law. The legislature,by the 5th Amendment, revived, inter alia, parts (IV) and (V) ofthe Elections Order-in-Council. "mutatis mutandis and except asotherwise expressly provided in the Constitution", that is, withthe necessary changes and modifications in order to bring theminto conformity with the provisions of the Constitution andsubject to the express provisions of the Constitution. Article 35(1) applies to all proceedings including Election Petitionproceedings. S. 80A (1) (b) contained in part (V) is subject tothe express provision in Article 35 (1) No election petition canbe instituted, impleading the President as respondent.Assuming that parts of the Elections Order-in-Council have beengiven constitutional status by the 5th Amendment, Article 35(1) is a special provision which must prevail over s. 80 A (1) (fc>),which is a general provision.
There are 2 aspects in Article 35 (1) – (a) a blanket immunityconferred on the holder of the office of President "in respect ofanything done or omitted to be done by him either in his officialor private capacity". (b) ouster of the jurisdiction of the Court. Itprecludes the conduct of the President being adjudicated upon,except in the circumstances specified in Article 35 (3). Article35 (1) precludes the Court from entertaining an ElectionPetition where the conduct of the President is in question. Itfollows, no process can issue, the Court cannot inquire into thefacts stated in the petition, the Court cannot proceed tojudgment ; then, it cannot determine that the election is void.This Court would also be violating the principles of naturaljustice if the President's conduct is examined in his absence.
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Mr Senanayake submitted as follows :
Article 35 (1) is concerned with proceedings which seek somerelief or impose a liability on the holder of the office of President
may be a criminal or a civil liability. The article will not apply toa large number of matters which come up before the regularCourts of our Country, for example, testamentary proceedingscan be instituted with the President as a respondent, if he is anheir or a beneficiary ; in a partition action, if the President is aoo owner, he can be cited as a respondent ; in a mortgageaction, if the President has an interest in or a puisne mortgageon, the mortgaged property, he has to be noticed. These arenot proceedings against him personally, and no relief is claimedagainst him.
In arriving at a determination under s. 81 of the ElectionsOrder-in-Council, the Election Judge is not deciding any right orliability against the 2nd respondent. The petitioner has filed hispetition to avoid the election. True that a Court has to make aReport thereafter. The petitioner has nothing to do with theReport of the Election Judge, issued under s. 82, which may ormay not be made. In issuing the Report, the Election Judge hasno power to impose any liability ; the Election Judge is notdepriving the person reported of his civic rights. The law takesns course once the Report is made and consequences flowfrom the Report. The election petition is not instituted againstthe 2nd respondent for the purpose of getting relief or imposinga criminal or civil liability. The election petition proceeding is nota proceeding against him ; it is a proceeding against the electedcandidate
If Article 35 is capable of applying to election petitions, thenArticle 35 must be read to be in harmony with other provisionsof the Constitution, namely, Articles 3 and 4 (e) which statethat Sovereignty is in the people and Sovereignty includes, interalia, the franchise and the franchise shall be exercisable at theelection of the Members of Parliament Article 35 (1) must beread to give effect to the principles enshrined in Articles 3 and 4ie) An election petition is a proceeding in which the Electorateis interested, it is a means of testing the purity of elections. Theelectorate is entitled to have a fresh election, if the election isimpure If a President cannot be impleaded, it will follow that a
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President can abuse his position and powers and can withimpunity commit all the election offences. To say an electioncannot be avoided because of Article 35 (1), is to negate thefreedom of the franchise which is the taproot of a democraticsystem of Government. Between the extended meaningcontended for by Mr. Choksy, and the restricted meaningcontended for by him, this Court must choose a meaning whichwill ensure the free franchise. Articles 3, 4 (e) and 35 (1) canhe re3d in harmony – An election petition is not a proceedingagainst the President except where the Presidential Election ischallenged on an election petition.
The preamble states that the 5th Amendment is an Act toamend the Constitution. The 5th Amendment restored theElections Order-in-Council, 1946, in regard to all elections andelection petitions and parts (IV) and (V) are part of theConstitution. Article 35 (1) is a general provision and applies toall classes of proceedings ; the Constitution provides forProportional Representation ; the 5th Amendment brought inelections according to the Elections Order-in-Council which is aspecial proceeding ; the 5th Amendment being the later Act,takes precedence over Article 35 (1).
The expression "as otherwise expressly provided in theConstitution" in the 5th Amendment means if there is provisionm the Constitution relating to election petitions, such provisionwill supersede the Elections Order-in-Council Thus s. 78conferred jurisdiction on the High Court to try an electionpetition and the High Court Judge was nominated by the ChiefJustice. The Constitution now vests jurisdiction in the Court ofAppeal and the Judge is nominated by the President of theCourt of Appeal (Articles 144, 146 (2) (iv)). Except for thesemodifications, the Elections Order-in-Council will apply, andunder s. 80A (1) (b). the 2nd respondent has to be joined.
The expression used in the 5th Amendment is "mutatismutandis, and except as otherwise expressly provided in theConstitution" and not "subject to the provisions of theConstitution, and mutatis mutandis" as in Article 168 (6). If"subject to" was used in the 5th Amendment, then Article 35(1) would apply, provided these are proceedings against thePresident.
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The 5th Amendment is an amendment to Article 161 (d) (iii)Article 161 commences with "Notwithstanding anything to thecontrary in any other, provision of the Constitution", that is,notwithstanding Article 35 (1). The requirement of joinder ofparties, .in s. 80A (1) (b) was brought in by the 5th Amendment,that is, notwithstanding Article 35, the requirement of joinderhas been brought in.
The learned Solicitor-General, who appeared as amicus curiae, atthe invitation of Court, pointed out that –
My task is to apply the plain and obvious provisions of Article 35of the Constitution and that no question of interpretation of theprovisions of the Constitution is involved Nor did Counsel forthe petitioner or the 1st respondent make any request for areference to the Supreme Court for a decision.
Mr. Senanayake's submission that the immunity conferred byArticle 35 (1) on the President be limited to cases where acriminal or civil liability arises would be an attempt to read intoArticle 35 (1) so many words. In the instances referred to byMr. Senanayake – testamentary, partition, and mortgageactions – there is no relief claimed against the President, and nocivil or criminal liability arises. These are not proceedingsagainst the President. The election of the 1st respondent issought to be set aside on the sole ground of a corrupt practicealleged to have been committed by the 2nd respondent, thePresident. If this is proved against the 2nd respondent seriousconsequences would flow against him. By sheer application ofthe expression "proceedings against" it is competent for thisCourt to hold that the present proceedings are against thePresident.
As regards concepts of Sovereignty, Democracy, Franchise andPurity of Elections, the Court's duty is to safeguard theseconcepts within the law.
Article 35 (1) not only expressly confers immunity on thePresident from proceedings but debars the Court fromentertaining such proceedings.
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The President is Head of State and of the Executive and of theGovernment and the Commander-in-Chief of the Armed Forces.(Art. 30) He has wide powers and functions (Art. 33) for theexercise of which he is responsible to Parliament (Art. 42). ThePresident may assign to himself any subject or function (Art. 44(2)) and in relation to the exercise of power pertaining to suchsubject or function, he is not immunised from proceedings,provided such proceedings are instituted against theAttorney-General (Art. 35 (3)). The President is not immunisedfrom proceedings in the Supreme Court under Article 129 (2)where the Speaker refers to the Supreme Court for inquiry andreport any allegation against the President, contained in aresolution presented by a Member of Parliament, inter alia, of-any offence under any law. involving moral turpitude underArticle 38(2) (v). The corrupt practice of making a falsestatement is an offence which involves moral turpitude and onreference by the Speaker, five Judges of the Supreme Courthave to inquire and report (Art. 129 (3)). If the jurisdiction tohear proceedings against the President is so dearly andexpressly defined and the procedure and Court are clearlyindicated, can an Election Judge assume the same jurisdictionwhich deprives the President of his civic rights ?
The expression "Notwithstanding anything to the contrary inany other provision of the Constitution" in Article 161 isintended to resolve conflicts between the sub-paragraphs ofArticle 161 and any other provision of the Constitution.
The Elections Order-in-Council was repealed by Act No. 1 of1981. s. 97 (1) (b) in Act No. 1 of 1981 is identical with s.80A (1) (b) of the Elections Order-in-Council. The Act No. 1 of1981 is not part of the Constitution. Article 35 mustnecessarily supersede s. 97 (1) (£>) o Act No. 1 of 1981.Election petitions filed under Act No. 1 of 1981 can only beagainst members of the 2nd Parliament. Does it mean thatArticle 35(1) takes effect as from the commencement of the2nd Parliament and only a future President can claim immunityconferred by Article 35 (1) ? Is it conceivable that no suchimmunity can be claimed where election petitions are filedagainst members elected to the Parliament, at by-elections heldunder the Elections Order-in-Council. 1946 ?
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There is a clear distinction between "application" and"interpretation" of a provision of a Statute.
"Interpretation may be defined as the process of reducing theStatute applicable to a single sensible meaning – the making of achoice from several possible meanings. Application, on the otherhand, is the process of determining whether the facts of the case
come within the meaning so chosenThe meaning of a
statute is not doubtful merely because its application in a particularcase is doubtful. Even though the statute is so plain and explicit asto be susceptible of only one sensible meaning, and even though themeaning is ascertained as a matter of interpretation, it often remainsin doubt whether the facts are within or without the penumbra of asingle meaning. To determine this question, then, is what is meantby application." (Bindra on Interpretation of Statutes, 6th Edn. atP-4)
"Interpretation is the act of making intelligible what was before notunderstood, ambiguous, or not obvious. It is the method by whichthe meaning of the language is ascertained." (Bindra, at p.3)
"The mere reliance on a constitutional provision by a party neednot necessarily involve the question of interpretation of theConstitution." (per Samarakoon, C.J. in Billimoria v. Minister of
Lands (1).
The provisions of the Constitution relevant to the decision of thequestion raised in the present case are Article 35 and Article 161, asamended by the 5th Amendment to the Constitution.
The language of Article 35 (1) is so clear and unambiguous that theneed for interpretation of this Article does not arise. On a mere readingof Article 35 (1), it is clear that absolute personal immunity isconferred on the President, during the tenure of his office, from anyproceedings in any Court or Tribunal in respect of anything done oromitted to be done by him either in his official or private capacity. It isnot an immunity for all time but limited to the duration of his office.Article 35 (1) says 'No proceedings", that is every type ofproceedings, without limitation or qualification. The Article furthersays no proceedings shall be instituted or continued against thePresident in respect of anything done or omitted to be done by him inhis official or private capacity. If that is so, he cannot be impleaded, he
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is above the process of any Court to bring him to account asPresident in respect of anything done in his official or private capacity.The President, while in office, has been put beyond the reach of theCourt, As was pointed out by both Mr. Choksy and Mr. Kulatunga,there are two aspects in Article 35 (1) – immunity of the Presidentfrom all proceedings, and the bar to the Court entertaining andcontinuing with the proceedings. The only three exceptions to theimmunity of the President from proceedings are those expresslyprovided for in Article 35 (3) – proceedings in relation to the exerciseof any ministerial function which he assigns to himself under Article44 (2), impeachment proceedings under Article 38 (2) read withArticle 129 (2), and election petition proceedings relating to theelection of the President himself under Article 130 (a).
Mr. Choksy explained the rationale underlying the immunity grantedto the President. It is not necessary for me to go into this matter. Mytask is merely to apply Article 35 (1) to the facts of this case.
I find that in the Constitution of Sri Lanka, 1972, the immunityconferred on the President by s. 23 (1) was in these terms : "whileany person holds office as President of the Republic of Sri Lanka, nocivil or criminal proceedings shall be instituted or continued againsthim in respect of anything done or omitted to be done by him either inhis official or private capacity. Article 23 (2) is in terms identical withArticle 35 (2) of the present Constitution. The exceptions to immunityfound in Article 35 (3) do not find a place in the 1972 Constitution.
As was submitted by Mr. Choksy, there is a reason for the grantingof wider immunity to the President by the use of words "anyproceedings" in Article 35 (1).
The President under the 1972 Constitution was like theGovernor-General under the Soulbury Constitution but under a nevynomenclature. He was a constitutional figurehead. He had noexecutive powers and was not a member of the Cabinet. The PrimeMinister was the Head of the Cabinet. The President could notparticipate in politics.
The General Elections took place in 1977. Prior to the passing of the1978 Constitution, by virtue of the 2nd Amendment to the 1972Constitution, which was certified on 20 10.77 and became operativefrom 4th March, 1978, the Prime Minister became the first ExecutivePresident and could engage in political activities. S. 7 of the 2nd
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Amendment to the 1972 Constitution amended s. 23 of theConstitution ; it continued the concept of immunity from civil orcriminal proceedings conferred by s. 23 (1) but stated the immunityshall not apply to any civil or criminal proceedings in relation to theexercise of any powers pertaining to any subject or function assignedto the Prime Minister or remaining in his charge under s. 94 (2).
Election petition proceedings are proceedings sui generis – neithercivil or criminal. Courts have described them as quasi-criminalproceedings. Therefore, a President under the 1972 Constiution, asamended, would have been left unprotected from or exposed toElection Petition proceedings.
The 1 978 Constitution recognised the President as Head of State,Head of the Executive and of the Government, and as theCommander-in-Chief of the Armed Forces (Article 30 (1). There isnothing in the Constitution to debar him from being the leader of apolitical party, from participating in politics, and from activelycampaigning for his party candidates during Parliamentary Elections.He could attend, address, and send messages to Parliament, and isentitled to all the privileges, immunities and powers of a Member ofParliament and is not liable for any breach of the privileges ofParliament or of its Members. He is only debarred from voting inParliament (Article 32 (3)).
With the change effected in the character of the President – from aconstitutional figurehead to the Executive Head of the Governmentand an active politician – the necessity arose to widen the field ofimmunity granted to the President. So the words "civil or criminalproceedings" in s. 23 (1) in the 1972 Constitution were omitted andreplaced by wider words "no proceedings" in Article 35 (2) of thepresent Constitution. There is another important consideration. InArticle 35 (2) the words used are "proceedings of any description".The use of this phrase shows the width of the proceedingscontemplated in Article 35 (1).
There is yet another important consideration. Article 144 vests thejurisdiction to try election petitions in respect of election to themembership of Parliament in the Court of Appeal. The framers ofArticle 35 (1) were aware of Article 144, and yet while creating anexception in regard to election petition proceedings relating to theelection of the President, did not likewise create an exception asregards Parliamentary Election Petition proceedings.
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In the proceedings earlier had before the President of the Court ofAppeal, it would appear that Mr. Senanayake argued that ElectionPetition jurisdiction is an extension of the jurisdiction of Parliament andif this were so, whether this Court is a "Court or Tribunal". No suchargument was advanced by him before me to the effect that this forumis not a Court. In fact, he could not have argued so as Article 144vests the jurisdiction to try an election petition in the Court of Appeal.
Mr Senanayake referred to testamentary, partition and mortgageactions and posed the question, "cannot testamentary, partition ormortgage proceedings be instituted with the President as one of therespondents ?" The answer to this, as Mr. Choksy correctly pointedout, is contained in Article 35 (1) itself. In each of these instancesrelied upon by Mr. Senanayake, it is not a proceeding instituted "inrespect of anything done or omitted to be done by him" in his privatecapacity. In the instances given, they are proceedings in which no actdone or omitted to be done by the President, is in dispute. They are notproceedings against the President, on the contrary, they areproceedings which seek to confer a benefit on the President. In thepetition before me, the sole and only question is whether the Presidentcommitted the corrupt practice of making a false statement.
S. 80 (A) (1) states :
"A petitioner shall ioin as respondents to his election petition –
where the petition in addition to claiming that the election of anyof the returned candidates is void or was undue, claims a furtherdeclaration that he himself or any other candidate has been dulyelected, all the contesting candidates, other than the petitioner,and where no such further declaration is claimed, all thereturned candidates and,
any other candidate or person against whom allegations of anycorrupt or illegal practice are made in the petition."
The ground for avoiding an election on the basis of the commissionof a corrupt practice is stated as follows in s. 77 (c) :
"The election of a candidate as a Member shall be declared to be
void on an election petition on any of the following grounds which
may be proved to the satisfaction of the Election Judge, namely :
that a corrupt practice or illegal practice was committed inconnection with the election by the candidate or with hisknowledge or consent or by an agent of the candidate."
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In Wijewardene v. Senanayake (2) Samarawickrame J afterreferring to the above provision said :
" In view of the above provision, I am of opinion that it is necessaryto join as respondents to the petition, persons alleged to be agentsand other persons acting with the knowledge or consent of thecandidate who was returned. . . . Upon a trial of an election petitionsuch persons are liable, if they are found guilty, to be reported to theGovernor-General, and to lose civic rights for a period of sevenyears This provision (80 A (1) (b)) has been enacted to give effectto a fundamental principle that a person ought to be a heard beforea finding adverse to him and involving penalties is made."
Samarawickrame, J. held that the provision of s. 80A (1) (b) ismandatory and that the failure to comply with the said section mustresult in the dismissal of the petition.
The judgment was affirmed in appeal in Wijewardena v. Senanayake(3) and H. N. G. Fernando, J. observed (p.98, 99) :
"The purpose of joining a person alleged to have committed acorrupt practice is to afford to him a full opportunity to defendhimself and to avoid a finding which will involve deprivation of his
civic rightsIn the case of Rajapakse v. Kathiragamanathan,
(4) decided in 1965, Tambiah, J. held that the successful candidatemust be joined in an election petition, and dismissed a petition inwhich he was not joined. The legislature in expressly requiring suchjoinder by the new s. 80A, enacted in 1970, has endorsed thatdecision. And when the new s. 80A further required the joinder ofany person alleged to have committed a corrupt practice, it placedsuch a person in the same position as a sucessful candidate. Thusnon-compliance with the further requirement must entail the sameconsequence of dismissal as does non-compliance with therequirement to join the successful candidate."
S. 82 (b) of the Representation of the People Act, 1951 (India)states :
"A petitioner shall join as respondents to his petition any othercandidate against whom allegations of any corrupt practice aremade in the petition."
In Shiv Chand v. Ujagar Singh and Another (5) one of thecandidates, one Shri Mai Singh, against whom the petitioner madeallegations constituting a corrupt practice was not joined as arespondent. The Supreme Court of India observed (pg. 155, 156) –
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"It is fairly clear that Shri Mai Singh was a necessary party since acorrupt practice was imputed to him. … It is obvious that s. 82 (b)requires the presence of every candidate against whom a corruptpractice is alleged. What is imperative is the presence as arespondent of such a candidate, not how or at whose instance hehas been joined as a respondent. The purpose is obvious andtwofold. When injurious averments are made against a candidatenatural justice necessitates his being given an opportunity to meetthose charges, because the consequence of such averments beingupheld may be disastrous for such candidate. Secondly, in theabsence of the party against whom charges have been levelled thereality of the adversary system will be missed. Above all, theconstituency is vitally concerned with the investigation into the proofor disproof of corrupt practices of candidates at elections. Thus, thepublic policy behind s. 82 (fc>) is the compulsive presence of thecandidate against whom corrupt practice has been imputed."
From what I have quoted, it is clear that a person against whom acorrupt practice is alleged is a necessary party to an election petition ;that such a person is placed in the same position as a successfulcandidate and his presence is imperative as a respondent. In theelection petition before me, the sole ground on which the election ofthe 1 st respondent is sought to be set aside, is the corrupt practicealleged against the 2nd respondent. There is no direct allegation of acorrupt or illegal practice against the 1 st respondent; he is only madevicariously liable for the acts of the 2nd respondent. The petition, intruth and in substance, is one against the 2nd respondent.
S 81 provides that "at the conclusion of the trial of an electionpetition the Election Judge shall determine, " inter alia, whether theelection was void". S. 82 provides that "at the conclusion of the trial ofan election petition the Election Judge shall also make a report"whether a corrupt practice has or has not been proved to have beencommitted by the candidate or by his agent. The words "at theconclusion of the trial" are significant. The report under s. 82 shouldbe made at the same time as the determination under s. 81. AnElection Judge has, therefore, dual functions which must beperformed simultaneously and both are mandatory functions. The dutyof an Election Judge does not end with declaring the election voidunder s. 81 ; he must also record a finding whethe' any corrupt
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practice has or has not been committed by an agent of the candidateand the nature of that corrupt practice. Both findings, under s. 81 aswell as under s. 82, are judicial findings.
Where the effect of a report under s. 82 is that a corrupt practicehas been committed by an agent of the candidate he suffers the sameincapacities as if he had been convicted of that practice (s.82D (2) (b))that is, he is disqualified for membership and for voting atParliamentary Elections (s. 58 (2)). The name of the person againstwhom the report declared that a corrupt practice was committed willbe deleted from the register of electors by the registering officer (s.82D (3)) and such a person becomes disqualified to be an elector atan election of the President or to vote at a Referendum (Article 89 (e)(m)), and also disqualified for election as President (Article 92). Thelaw gives effect to the adverse finding under s. 82 by imposing severepenalties.
Mr. Senanayake says that the petitioner is only concerned withhaving the election of the 1st respondent avoided and that he isunconcerned with the 2nd respondent and with the adverseconsequences that will flow, if the allegation against the 2ndrespondent is proved ; that he has nothing to do with the Report. If thepetitioner fails to prove the allegation against the 2nd respondent,how does he hope to get the relief prayed for against the 1strespondent ? The success of the election petition depends entirely onproof of the allegation against the 2nd respondent.
Further, the law casts on me, as Election Judge, to perform atwofold duty, to be performed at one and the same time – to make adetermination under s. 81 whether the 1 st respondent's election wasvoid, and to arrive at a finding whether the 2nd respondent hascommitted the alleged corrupt practice. And if so found, theconsequences would be more disastrous to the 2nd respondent thanto the 1 st respondent.
How could it be said that the present petition is not a proceedingagainst the 2nd respondent ? For the reasons given, I am of opinion,that the election petition proceedings before me are proceedingsagainst the 2nd respondent also.
I shall novv deal with Article 161, as amended by the 5thAmendment The 5th Amendment, having revived the FlectionsOrder-in-Council, 1946. with regard to, inter alia. Elections and
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Election Petitions by the use of the words, "deemed to be in force"also used the expression "mutatis mutandis, and except as otherwiseexpressly provided in the Constitution "
Mr Senanayake argued that Parts (IV) and (V) of the ElectionsOder-m-Council have been elevated to the status of constitutionalprovisions and that s. 80A (1) (b) which is in Part (V) must supersedeArticle 35 (1) of the Constitution as the 5th amendment is a later Act.The 2nd respondent has to be joined as respondent to the petition.
I cannot agree that the parts of the Elections Order-in-Council,1946, that have been revived have constitutional status. Let me statethe reasons
11) The 5th Amendment itself indicates that the ElectionsOrder-m-Council is not a part of the Constitution. The words "exceptas otherwise expressly provided in the Constitution" convey the ideathat the Elections Order-in-Council, 1946, is not part of theConstitution. It is inherent in the words that the Constitution prevailsover the Elections Order-m-Council. The use of the words "the lawapplicable to election petitions" suggest that the ElectionsOrder-in-Council is a law apart from and outside the Constitution.
As the 1st Parliament was not elected on the basis ofProportional Representation, it became necessary for the legislature toindicate the law under which by-elections would be held and the lawrelating to election petitions. The 5th Amendment indicated that thelaw would be the Elections Order-in-Council, 1946. This does not givethe Elections Order-m-Council a constitutional flavour.
Article 101 (1) (e) – (f) enables the Parliament to make lawsregarding Elections and Election Petitions. Act 1 of 1981 was passedproviding for Proportional Representation and Election Petitions. Doesit mean such provisions ot Act 1 of 1981 acquire constitutional
status ?
Likewise Article 40 (3) enables the Parliament to make laws relatingto the election of the President and to matters incidental thereto. TheParliament enacted the Presidential Election Act, No. 2 of 1980.
So also. Article 156 (1) enables the Parliament to make laws for theestablishment of an Ombudsman which it has done by Act No. 17 of1981. Article 155 (1) refers to the Public Security Ordinance.
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Does it mean that these various laws referred to in the Constitutionbecome part of the Constitution or achieve constitutional status ?
Article 168 provides that existing laws shall, "mutatis mutandis,and except as otherwise provided in the Constitution',continue inforce ; when the 1978 Constitution was enacted, the ElectionsOrder-in-Council, 1946, was an existing law. When the 5thAmendment resuscita ed it, it used the same expression, "mutatismutandis, and except as otherwise provided in the Constitution." The5th Amendment revived the Elections Order-in-Council, 1946, andplaced it on par with other existing laws, as Article 168 (1) used thesame expression. The object of the legislature was to continue theElections Order-in-Council, as a subordinate law.
Article 168 (2) states that existing laws are not and shall not in anymanner be deemed to be provisions of the Constitution. The 5thAmendment does not say that the Elections Order-in-Council areprovisions of the Constitution.
The 5th Amendment revived the Elections Order-in-Council forthe purpose of the by-elections to the 1st Parliament. Its operationcomes to an end when the 1st Parliament is either dissolved or itsterm expires. If the Order-in-Council is a provision of the Constitution,it must operate for ever.
S. 97 (1) of the Parliamentary Elections Act, No. 1 of 1981, isin terms, identical with s. 80 A (1) (b) of the ElectionsOrder-in-Council, 1946. None can contend that s. 97 (1) is aconstitutional provision. In an election petition filed under Act No. 1 of1981, against a candidate elected to the 2nd Parliament, can it becontended that s. 97 (1) supersedes Article 35 (1) of theConstitution ? Is it conceivable that the requirement of joinder ofparties supersedes Article 35 (1), only where election petitions arefiled against candidates elected at by-elections to the 1 st Parliament ?
Article 125 (1) grants the Supreme Court the exclusivejurisdiction to interpret the Constitution. Can it be said that Article125 (1) applies to the provisions of the Elections Order-in-Council ? InElection Petition No. 3 of 1983, Mahara, relating to the sameelection, all Counsel, including Mr Senanayake, indulged in a processof interpretation of s. 80 A (1) (b). If the requirement of joinder is aconstitutional provision, then I could not have heard arguments on thematters raised in limine which were based on the interpretation of s.
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80 A (1) (b). Then, was I required to refer the matter to the SupremeCourt ? Mr Senanayake does not say so Isn't this a test to determinewhether s. 80 A (1) (b) is a constitutional provision ?
There is no doubt that the Elections Order-in-Council, 1946, issubordinate law and if a conflict arises between Article 35 (1) of theConstitution and s. 80 A (1) (b), the latter must yield to the former.
Let me assume that Mr Senanayake is correct that s. 80 A (1) (b) isa constitutional provision, then, there is an apparent conflict betweens. 80 A (1) (b) and Article 35 (1).
"Whenever there is a particular enactment and a generalenactment in the same Statute, and the latter, taken in its mostcomprehensive sense, would override the former, the particularenactment must be operative, and the general enactment must betaken to affect only the other parts of the Statute to which it mayproperly apply " (Haisbury's Laws of England, 3rd Edn., Vol. 36, p.397, para 597).
"One way in which repugnancy can be avoided is by regarding twoapparently conflicting provisions as dealing with distinct matters or
situations Collision may also be avoided by holding that one
section, which is ex-facie in conflict with another, merely provides foran exception from the general rule contained in that other "(Maxwell on Interpretation of Statutes, pages 187. 188). S. 80 A
(b) contains the general rule that all persons against whomallegations of corrupt practice are made in the petition must bejoined as respondents. Article 35 (1) is a particular provision dealingwith a particular situation – immunity of the President fromproceedings – and is an exception to the general rule contained inS. 80 A (1) (b).
Mr. Senanayake referred to the expression 'notwithstandinganything to the contrary in any other provision of the Constitution" nArticle 161 and argued that Article 35 (1) will not apply to ElectionPetitions filed against candidates returned at the by-elections held byvirtue of the 5th Amendment. Therefore in terms of s. 80 A (1) (b).the 2nd respondent has to be joined.
I cannot accept this contention. The marginal note to s. 161 says' First Parliament'. A reading of Article 161 and its sub-paragraphsshow that the prime object was to make special provisions to themembership of the 1st Parliament. The provisions are directed tomembership of the 1 st Parliament.
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Article 161 (a) states that the 1st Parliament shall consist of 168members and the members of the National State Assembly aredeemed to have been elected as Members of Parliament. Article 62
says the Parliament shall consist of 196 members. Thus,notwithstanding Article 62 (1) the 1 st Parliament shall consist of 168members.
Article 161 (b) (1) (ii) states that the Elections Order-in-Council,1946, shall apply to by-elections and election petitions in relation tosuch elections. Article 101 says that Parliament may make provision inrespect of elections and election petitions and accordingly Act No. 1of 1981 was enacted. Thus notwithstanding Article 101, theElections Order-in-Council, 1946, will govern by-elections andelection petitions.
Article 161 (oO states that a vacancy in the membership of the 1stParliament, except where the election is avoided on an electionpetition, shall be filled by nomination by the Secretary of the politicalparty. Article 99 (3) (£>) provides that the vacancy shall be filled, underProportional Representation, by the person, whose name appears firstin order of priority in the relevant nomination paper, after excludingthose already elected. Thus notwithstanding Article 99 (3) (b) thevacancy will be filled by nomination.
Article 161 (e) states that the duration of the 1st Parliament is sixyears from 4.8.77, i.e., until 1983. Article 62 (2) provided for sixyears from the date of its 1st meeting, i.e., the 1st Parliament wouldhave carried on until 1984. Thus, notwithstanding Article 62 (2),Article 161 (e), which provided for a shorter period, will apply.
It is clear therefore that the framers of the Constitution used theexpression “notwithstanding anything to the contrary in any otherprovision of the Constitution," to resolve conflicts between Article 161and its sub-paragraphs, and other provisions of the Constitution.
The 5 th Amendment used both expressions – “mutatis mutandis'and "except as otherwise expressly provided in the Constitution ’
"Mutatis Mutandis' means 'with necessary alterations in point of
detail" (per Samarakoon, CJ. inS. C Application No. 47 of 1983,
quoting from Wharton's Law Lexicon).
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Black's Law Dictionary (4th Edn. 1951, at p. 1172) defines thephrase thus-
"With the necessary changes in points of detail, meaning that
matters or things are generally the same, but to be altered, as to
names, office and the like.”
'Except where otherwise expressly enacted, it means unless someinconsistent provision is expressly made. The word merely serves toemphasize the generality of the main provision by making it clear thatno case is outside that provision unless that is the necessary result ofthe operation of another enactment according to the intention itmanifests.' (Bindra's Interpretation of Statutes, 6th Edn. atp. 919)
The 5th Amendment used both devises –
The Order-in-Council, 1946, relating to election petitions is toapply with alterations in point of detail, necessitated by theConstitution.
The Order-in-Council is to apply to election petitions, unlesssome inconsistent provision is expressly made in theConstitution.
As examples of the former, rule 3 (1) in the 3rd Schedule to theOrder-in-Council required the election petition to be filed in theSupreme Court and to be tried by a Judge of the Supreme Courtnominated by the Chief Justice (s. 78 {1)). Article 144 vests electionpetition jurisdiction in the Court of Appeal and the petition is to be triedby a Court of Appeal Judge, nominated by the President of the Court(Article 146 (iv)). The Certificate of the Election Judge under s. 81and the Report under s. 82 were transmitted to the Governor-General(s. 82 (c)). Now they will have to be transmitted to the President ofthe Republic.
Where there is conflict and inconsistency between a provision in theOrder-in-Council and an express provision in the Constitution, toresolve such conflict, the device of "mutatis mutandis" is unhelpful.So, in order to make it clear that in case of conflict and inconsistency,the express provision of the Constitution must prevail, the legislatureused the words 'except as otherwise expressly provided in theConstitution'. Thus, a person is disqualified to be elector and to standfor election during the period he is subject to civic disability imposedon him by a resolution of Parliament in pursuance of a
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recommendation by the Special Presidential Commission of Inquiry interms of Article 81. (Articles 89 (h), and 91 (a)). If such a persondelivers his nomination paper to the returning officer, it cannot berejected by the Returning Officer under the Order-in-Council on theground that he is subject to civic disability (s. 31), but the Constitutiondebars him from tendering his nomination paper. So the provisions ofthe Order-in-Council in regard to nominations will have to yield to theexpress provision in the Constitution.
S.80A (1 )(b) in. part (V) of the Order-in-Council was revived by the5th Amendment and deemed it to be in force, unless someinconsistent provision is made in the Constitution. Article 35 (1) is apexpress provision of the Constitution which expressly says that noproceedings will be instituted against the President while in office. Thepreamble 'describes the Constitution "as the Supreme Law of theDemocratic Socialist Republic of Sri Lanka". S. 80A (1) (b) must giveway to Article 35 (1). S. 80A (1) (£>) therefore will apply to thegenerality of cases except where an election petition is institutedagainst the President. The result is, no petition can be institutedimpleading the President as a respondent.
Mr. Senanayake asked me to take into account the basic features olthe constitution – dempcracy, purity of elections, the right offranchise – and said that I must give a meaning that will ensure thefree franchise. He posed the question – "what if a President commitsall the election offences. Should that election be cllcwcd to ctend ?"
Just as much as Articles 3 and 4 (e) are provisions in theConstitution, so is Article 35. Article 35 (1) has no qualifying wordssuch as "subject to" Articles 3 and 4 (e). The same legislature whichenacted Articles 3 and 4 (e) also enacted Article 35 and has chosen inArticle 35(3) to only except Presidential Elect;on Petition proceedingsand not Parliamentary Election Petition proceedings from the immunitygranted to the President, and this, as I stated earlier, despite Article144 which vested the Court of Appeal with the jurisdiction to tryelection petitions. This is a clear indication that the words "Noproceedings" in Article 35 (1) were intended to cover ParliamentaryElection Petition proceedings. I cannot read into Article 35 (3) or implya further exception, namely, proceedings in the Court of Appeal underArticle 144, relating to the election of members of Parliament.Perhaps, the answer to. the query of Mr. Senanayake – "What if the
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President commits all the election offences ?" – is found in Article 38
(iv) read with paragraph (2) of Article 129. It is a matter, not forthis Court, but for one that sits in another chamber of this Country.
"It is not for the Courts to enter into the wisdom or policy of aparticular provision in the Constitution or statute. That is for theConstitution makers or for the Parliament or the legislature.
If the nature of the power granted is clear and
beyond doubt the fact that it may be misused is wholly
irrelevantWhere the language of an Act is clear and
explicit, effect is to be given to it whatever may be theconsequences. The words of the Statute speak the intention of the
legislature If power is conferred which is in clear and
unambiguous language and does not admit of more than oneconstruction there can be no scope for narrowing the clear meaningand width of the power by considering the consequences of theexercise of the power and by so reading down the power."Kesavananda Bharati Sripadagalvaru v. State of Kerala. (6).
The language of Article 35 is clear and unambiguous. Article 35 (1)embraces all types of proceedings and confers a blanket immunityfrom such proceedings, except those proceedings specified in Article35 (3). The fact that the immunity will be misused is wholly irrelevant.Effect must be given to the clear and explicit language in Article 35 (1)whatever may be the consequences, and there can be no scope forfurther narrowing and reading down the immunity granted. It is not forme to question the policy or wisdom of Article 35.1 will leave it to thelegislature
Let me now apply Article 35 (1) to the facts of the present case
The Election Petition filed is a proceeding.
The proceeding is instituted in a Court.
The proceeding is instituted also against the President, while heholds office as President.
The proceeding is instituted in respect of an act done by thePresident in his private capacity. If so. Article 35 (1) is attractedand is a bar to my entertaining the petition and having furtherproceedings on it. If this Court were to inquire into the allegationagainst him. in his absence, it will be violating the principle of
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audi alteram partem, and any determination under s. 81, andany adverse finding under s. 82 of the Order-in-Council, will bea nullity.
The sole ground on which the election ot the 1 st respondent issought to be set aside is the allegation of a corrupt practice by the 2ndrespondent, as agent of the successful candidate, If this allegationgoes out, there is nothing further in the election petition for me toinquire into. It is an empty petition.
I uphold the 1 st objection of the 1 st respondent and on this groundalone, the petition has to be dismissed.
In regard to the charge relating to the making of false statements,Mr Choksy's position was that assuming but not conceding and/oradmitting, that the 2nd respondent made : le alleged statements andthat such statements did refer to the petitioner, nevertheless the saidstatements do not in law constitute false statements of fact in relationto the personal character or conduct of the petitioner, and thereforedo not disclose a corrupt practice within the meaning of s. 58 (1) (d)of the Elections Order-in-Council, 1946.
The alleged words were uttered in Sinhala, and Mr. Senanayaketendered an English translation which was accepted as correct byMr. Choksy.
Mr. Choksy said he was entitled to raise this matter in limine, whileMr Senanayake said, he cannot. It was Mr. Senanayake'? positionthat evidence is necessary to show that the alleged state tents referto the petitioner, what is meant by the form "Naxalites", and whetherthe said statements related to the personal or public character andconduct of the petitioner ; what the people of Mahara understandwhen a person is referred to as a 'Naxalite' might be quite different towhat a political study class will understand when a person is called a'Naxalite'
I find that in Election Petition, Kobbekaduwa v. J. R. Jayewardene &Others (7) an objection in limine was taken that assuming that thealleged false statements were made, the statements do not constitutefalse statements of fact in relation to the personal character orconduct of the candidate and that, therefore, the petition does notdisclose any corrupt practice, within the meaning of section 80 (c) ofAct No. 15 of 1981 (same as s. 58 (1) (d)). The Supreme Court held
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that the false statement alleged is merely a criticism of the candidate'spublic conduct and does not come within the mischief envisaged bythe Law, and that the Election Petition is untenable.
An essential requirement for a statement to come withins. 58 (1) (c) of the Election Order-in-Council is that it must be inrelation to the personal character or conduct of a candidate, asdistinguished from statements relating to political or public conduct.
"The false statement of fact need not be defamatory at commonlaw, so long as it is a statement which is calculated to influence theelectors, as, for instance, a statement made in a hunting countrythat the candidate has shot a fox or a statement made to promotersof total abstinence that the candidate has taken a glass of wine , butit is essential that it should relate to the personal rather than thepolitical character or conduct of the candidate. The words of thestatement will be interpreted according to their real and truemeaning, and not according to their literal sense. The question to bedetermined is what in the circumstances is the true meaning whichthe reader would place upon the statements. The true meaning willdepend on the occasion of the publication, the persons publishing,the person attacked and the readers intended to be addressed."{Halsbury's Laws of England, 4th Edn., Vol. 15, para 790, andfootnote 10. pp 431, 432.
This statement of law was quoted with approval by the Supreme Courtin Kobbekaduwa’s case (supra).
"What the passage meant to convey" is the test. (See footnote10. ibid).
It is clear from the petition that the occasions were public meetingsheld during the Mahara by-election. The person publishing, it is allegedwas the 2nd respondent. Mr. Choksy has assumed, for the purpose ofhis argument, that the 2nd respondent made the statements, and thatthe person attacked was the petitioner. There is no controversy thatthe persons addressed were the voters of the Mahara electorate.
In the North Louth Case (8) one of the charges was the publicationof false statements in relation to the personal character and conductof Mr. Healy, a candidate at the electiqn.. Mr. Healy, in his evidence,conceded that the charge related to political misconduct. Mr. JusticeMadden said (p. 171):
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"Mr. Henry relies on a passage in Mr. Healy's evidence in whichhe refers to the charge made against him as one of politicalmidconduct. The interpretation of the Act of Parliament, and itsapplication to the documents before us, is for this Court,irrespective of the views of any witness".
So, it seems to me, that the sense in which the alleged statementswere understood by persons present at the meeting, is irrelevant. It isfor this Court to interpret the alleged statements and not for witnessesto say that they understood the statements in one way or the other ;otherwise the petitioner's witnesses would say "this is how weunderstood", and the respondent's witnesses would say "weunderstood it differently", and the Court will be none the wiser.
According to Mr. Senanayake, the offensive passages which relateto the personal character and conduct of the petitioner are –
"Certain individuals belonging to opposition parties were takeninto custody. There had been plans made by those individualsto create various disturbances in this Country. We released theNaxalities". (Para 4A of the petition).
"Vijaya Kumaranatunga is supposed to be saying that he wastaken into custody. Those who are creating disturbancescannot be allowed to play with people" (Para 4B).
At Mr. Kobbekaduyva's meetings, some persons have said thatif they win, J. R. will be hanged. J. R.'s intestines • .:! be takenout. Another person had said that I will be killed and they willwalk on my blood to President's House. (Para 4C).
In regard to (1) above, Mr. Senanayake stated that the allegationwas that the petitioner was taken into custody because of plans on hispart to create disturbances in the Country ; the petitioner was alsoreferred to as a Naxalite. So also in regard to (2) above, the statementsays that the petitioner was taken into custody because he wascreating disturbances. As regards (3) above, he submitted that for aman to say, a person will be hanged, disembowelled, killed and on hisblood they will tread, he must have such thoughts. A man's characteris assessed from the language he uses, though he be a politician ; tothink and say such things reveals the personal character and conductof the man.
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Kumaranatunge v. Jayakody (Tambiah. J.)
75
Mr. Choksy. on the other hand, contended that paragraphs 4A andB of the petition contain references to the petitioner's public andpolitical conduct; the Naxalite movement is a political movementwhich seeks to achieve its political goal by resort to violence , tocharacterise the petitioner as a Naxalite, is a reference to his politicalphilosophy. In regard to paragraph 4C. he stated that the referenceagain is to the petitioner's public and political conduct ; it is areference to the political ideas of the opposition party ; what it wouldhave done, if they won the Presidential Election – take over thePresidency by committing violence on the incumbent of the office.
"Now it must be noted that what the Act forbids is this : you shallnot make or publish any false statement of fact in relation to thepersonal character or conduct of such candidate , if you do, it is anillegal practice. It is not an offence to say something which may besevere about another person, nor which may be unjustifiable, norwhich may be derogatory, unless it amounts to a false statement oftact in relation to the personal character or conduct of suchcandidate, and I think the Act says that there is a great distinction tobe drawn between a false statement of fact, which affects thepersonal character or conduct of the candidate, and a falsestatement of fact which deals with the political position orreputation or action of the candidate. If that were not kept in mindthis Statute would simply have prohibited at election times all sortsof criticism which was not strictly true, relating to the politicalbehaviour and opinions of the candidate. That is why it carefullyprovides that the false statement, in order to be an illegal practice,must relate to the personal character and personal conduct."
(Darling, J. in (he Cockermouth Case (9) quoted with approval bythe Supreme Court In Kobbekaduwa's Case (supra)).
"The principle underlying this provision of law appears to us to bethat the public character or conduct of a public man or politician ispublic property and the risk of persons being misled regarding acandidate by a false statement relating to his public or politicalcharacter and conduct is therefore slight, and is outweighed by theparamount necessity of allowing free and unfettered public criticismof the public or political acts of public men and politicians. Whilst onthe other hand facts relating to the personal character or conduct ofsuch men are, in the nature of things, not generally known and afalse statement relating to the personal character or conduct of acandidate may be calculated seriously to mislead the electors to theprejudice of such candidate.” (Kobbekaduwa's Case, supra).
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"If the socio-economic policy of the party to which the candidatebelongs is falsely criticised and it is suggested in strong words thatthe said policy would cause the ruin of the country, that clearlywould be criticism, though false, against the public character of thecandidate and such would be outside the purview of the Statute."(Kobbekaduwa's Case, supra).
"A statement that a candidate is a communist is not within theprovision, THe words "radical traitors" were held to be not within theprovision, as being a statement of opinion rather than of fact."(Halsbury's Laws of England, 4th Edn. p. 432, para 790, note 8).
"Statements that the candidates were communists were not falsestatements as to personal character". (English & Empire Digest,Vol. 32, p. 182, para 2241).
In Serla Devi v. Birendrasingh (10) a newspaper containedstatements : (1) That the workers of the "Hut Symbol" party have beenso foolish as to threaten to shoot even Pandit Jawaharlal Nehru, thegreat leader of the Country ; (ii) that the Praja Socialist Party is bycoming to an understanding with the Muslim League, following exactlythe footsteps of Mir Jafar, Jaya Chand and Mohammad Ali Jinnah andmaking common cause with Pakistanis , and (iii) that to vote for suchparty was to sell the Country and nothing but treason. The "hut" wasthe symbol of the Praja Socialist Party. The question was whetherthese statements related to the personal conduct or character of thecandidate who came forward as the Praja Socialist Party candidate.The Court observed (p. 188, para 59) –
"Now, examining the statements, we find that the first statementrefers to the workers of the 'hut symbol' party and the second to thePraja Socialist Party itself. Any imputation against the workers of apolitical party, or the political party itself, cannot be taken to be animputation in relation to the personal character or conduct of acandidate who belongs to that party. In the first place, the allegedfalse statement is not in relation to any particular candidate, and,secondly, in so far as it is against the workers of a political party orthe party itself, which included the candidate, it can best be said tobe against the public or political character or conduct of thecandidate and not against his personal character or conduct."
In regard to the 3rd statement, the Court held it was not a statementof fact but only an opinion and did not fall under s. 123 (4) of R. PAct, 1951.
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Kumaranatunge v. Jayakody (Tambiah, J.)
77
Mr Choksy, for the purpose of his argument, assumed that thestatements referred to the petitioner, and stated that if the objectionraised by him fails, he was free to contest the matters that are beingassumed by him for the purpose of his argument.
It would appear from the petition that the alleged statements inparag'aphs 4 (A) and 4 (C) were uttered at one and the same publicmeeting held at Malwathuhiripitiya, and in the course of the samespeech. The petitioner has however sought to split it up into twostatements and converted them into two separate corrupt practices. Ishall, therefore, consider paragraphs 4 (A) and 4 (C) together.
The reference is to the petitioner as belonging to an oppositionpolitical party, and that he and some members of the oppositionpolitical parties were taken into custody after the Presidential Electionand the Referendum, as they had plans to create disturbances in theCountry. Much the same thing is said in paragraph 4B. The petitioneris described as a Naxalite. He is referred to as a candidate for the SriLanka Freedom Party, and that he, with some others, at public politicalmeetings in support of Mr. Kobbekaduwa's candidature, spoke andmade certain statements as to what they would do to the incumbentof the office of President, in case Mr Kobbekaduwa was electedPresident. There is a reference to a police inquiry that was initiated tofind out why such statements were made and that the petitioner wastaken into custody for the purpose of the inquiry
There is no reference to the petitioner as a private individual ; thereference to him and his associates is as politicians and what was saidwas no more than an account of what these persons said at publicpolitical meetings and what they planned to do as politicians. Thedisturbances planned by them were political disturbances and theotatements uttered relate to a political assasination. It is a comment asto their political conduct and not as to their personal conduct; of theirpublic and not of personal acts.
It to label a candidate as a communist, even if it is false, is not areference to his personal character and conduct, I fail to see how tocall a candidate a Naxalite, relates to his personal character andconduct.
i uphold the objection that the petition does not disclose a corruptpractice within the meaning of s. 58 (1) (d) of the ElectionsOrder-in-Council, 1946. The three charges set out in the petition areall laid under s. 58 (1) (d), I dismiss the petition on this ground also.
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I finally come to the objection that the petition is not accompaniedby a proper and adequate affidavit, and the petitioner has thereforefailed to comply with the mandatory provisions of s. 80B (d) of theElections Order-in-Council, 1946.
The affidavit is filed by the petitioner and in paragraph 2 he statesthat the 'particulars of commission of corrupt practices set out thereinare made from my own personal knowledge and observation, or frompersonal inquires conducted by me in order to ascertain the details ofthe incident referred to in the petition." The rest of the paragraphs inthe affidavit are a word to word repetition of what is contained in thepetition.
The affidavit in this case is in terms identical with the affidavit filed bythe petitioner in Election Petition No. 3 of 1983, Mahara. BothMr. Choksy and Mr. Senanayake fully argued matters relating to thisobjection in the latter case, and they said they were adopting thearguments adduced by them and not re-arguing the matter.
In my order in Election Petition No. 3 of 1983,1 have held –
that though the legislature has failed to prescribe the form ofaffidavit, an election petition must always be accompanied byan affidavit.
that an affidavit can be one based on personal knowledge or or,information and belief, and if the latter, the deponent mustdisclose the sources of information and the grounds for hisbelief.
the function of an affidavit is to verify and support theallegations of corrupt practice made in the petition. An affidavitthat fails to perform this function, is not an affidavit in the eye ofthe law.
the facts deposed to may be based partly on knowledge andpartly on information and belief, but the deponent must make itclear which facts are true to his knowledge and which of themhe verily believed to be correct on the basis of informationgathered from others.
that an affidavit that does not comply with these requirementshas the result of invalidating the election petition itself and hasto be dismissed for non-compliance with s. '80 B (d) of theElections Order-in-Council.
CA
Kumaranatunge v. Jayakody (Tambiah. J.)
79
The petitioner does not say which facts in the petition are based onpersonal knowledge and which of them are based on information. Theaffidavit is a verbatim reproduction of what is stated in the petition.The words are alleged to have been uttered at two public meetingsheld at two different places on the same day, to support hisopponent's candidature. The petitioner, himself a candidate, couldnot have attended his rival's meetings. Obviously, then he must havegathered information from others who were present at thesemeetings. What was the difficulty in disclosing the sources of hisinformation and the grounds for his belief ? The affidavit filed by thepetitioner, has failed to perform its function – of verifying andconfirming the facts stated in the petition. For reasons I have given inmy Order in Election Petition No. 3 of 1983. I uphold this objectionand dismiss the petition on this further ground also.
I dismiss the Election Petition filed by the petitioner and order him topay to the 1st respondent Rs. 1,500 as costs of proceedings in thisCourt.
I thank the Solicitor-General and all Counsel for the assistance givento me in these proceedings.
Petition dismissed.