017-SLLR-SLLR-1985-V2-KUMARATUNGE-v.-JAYAKODY-AND-ANOTHER.pdf
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(1985) 2 SriL.R.
KUMARANATUNGE
v. ..
JAYAKODY AND ANOTHER
SUPREME COURT.
SHARVANANDA. C. J., WANASUNDERA, J„ COLIN-THOME, J.
ATUKORALE. J. AND L. H. DE ALWIS, J.
S.C. ELECTION PETITION APPEAL No. 5/84.
ELECTION PETITION No. 7/83.
FEBRUARY 25. 26, 27 AND 28 AND MARCH 1.4. 5. 7 AND 8. 1985.
Election petition – President impleaded as respondent alleging commission of corruptpractice of making false statements of fact in relation to personal character and conductof petitioner – Affidavit containing averments based on information from undisclosedsources – Meaning of false statement of fact in relation to personal character andconduct – Article 35 of Constitution – Sections 58(1) (d). 77 (c) and 80A (1) (b).808 (d) of the Ceylon (Parliamentary Elections) Order-in-Counctt – Articles 161.168(1) and (2) of the Constitution.
The petitioner who was an unsuccessful candidate for election to the Mahara seat atthe Parliamentary Elections held on 18th May 1983 challenged the election of the 1strespondent who was the successful candidate on the sole ground that the 2ndrespondent who was the President of the Republic had at an election meeting held insupport of the 1st respondent's candidature committed the corrupt practice of makingfafse statements of fact- in relation to the personal character and conduct of thepetitioner by referring to him, inter alia, as a Naxalite for the purpose of affecting thereturning of the petitioner. On behalf of the respondents three preliminary objectionswere argued :
1T
The petition is bad and cannot be entertained because the President of the Republichad been'impleaded as the 2nd respondent.
The affidavit filed was not proper and did not comply with the legal requirementsand the petition should therefore be rejected.
(3| The statements alleged to haye been made by the 2nd respondent do not amountto false statements of fact in relation to the personal character and conduct of thepetitioner.
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Kumaranatunge v. Jayakody
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Held – (1) (Affirming finding of Court of Appeal)
Article 35 gives blanket immunity to the President from proceedings of any kindwhatsoever instituted or continued against him in any court in respect of anything doneor omitted to be done by him either in his official or private capacity during the tenure ofhis office.
(Reversing finding of Court of Appeal)
Where some of the statements in the affidavit accompanying the petition are based onthe knowledge of the deponent and some on information received from others, theaffidavit is defective. But the petition should not be dismissed on that ground of defectin the verification. The allegation of corrupt practice cannot be ignored merely on theground that the source of information is not disclosed when the a legation is based oninformation as it is not a requirement of law that the source of information or- thegrounds of the deponent's belief should be set out. and the form of'the mandatoryaffidavit has not been prescribed.
(Reversing finding of Court of Appeal)
The false statement must be in relation to the personal character or conduct of thecandidate as distinct from his political or public conduct. The words of the statementwill be interpreted according to their real and true meaning and not according to theirliteral sense. The true meaning will depend on the occasion of the publication, theperson publishing, the person attacked and the readers intended to be addressed. Inthe present case the sense in which the alleged statements were understood by thosepresent at the meetings is relevant. What is meant by the term Naxalite and how theterm was understood by the said voters and whether they understood it as relating tothe personal or public conduct of the petitioner.has to be determined on the evidence ofwitnesses.
Held further: affirming decision of Court of Appeal. (Wanasundera, J; dissenting)
The impugned election petition is a proceeding against the President and is violative ofArticle 35 (1) of the Constitution. An election petition with the President as arespondent cannot be instituted or sustained or proceeded with. Making the President aparty respondent is fatal to the petition. Article 35 (1) of the Constitution (Constitutes anexception lo section 80A(1){b) of the Ceylon (Parliamentary Elections)Order-in-Council 1946 and ousts the jurisdiction of. the Court to inquire into the conductof the President except in the circumstances specified in Article 35 (3).
Case referred to :
(1) Kobbekaduwa v. Jayewardene and Others S.C. No. 3/82-S.Cr Minutes of10.1.1983.
APPEAL from Judgment of Election Judge reported in [1984] 2 SLR 45.
Nimat Senanayake, P. C. with Sanath Jayatilleke. Nimal Siripala de Silva. Saliya Mathew,Mrs. A. B Dissanayake, L. M. Samarasinghe and Miss. 'A. D. D. N. Telespha. for thepetitioner.
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K. N. Choksy, P.C.. with George Candappa, P.C.. Ben EHyathamby. Daya Petpoia, 6. H.
N.Jayamaha. Ronald Perera, and Lakshman Patera for the 1st respondent.
2nd Respondent absent and unrepresented.
K. M. M. B. Kulatunga. P.C., Solicitor-General, with Sarath Silva, DeputySolicitor-General and A. Kasturiaratchi. State Counsel for Attorney-General as amicuscuriae on notice. .'
Cur. adv. vult.
Juty8, 1985.
SHARVANANDA, C.J.
The Parliamentary Election for the Mahara Electorate was held on the18th May, 1983. At the said election the petitioner-appellant and the1st respondent, amongst others were candidates and the 1strespondent was declared elected.
‘ The present election petition was filed on 09.06.83 by thepetitioner wherein he seeks to have the election declared void on theground that the 2nd respondent, as agent of the 1st respondent,committed the corrupt practice of making false statements of fact inrelation to the personal character and conduct of the petitioner for thepurpose of affecting the return of the petitioner at the said election, interms of section 58(d) read with section 77(c) of the Ceylon(Parliamentary Elections) Order-in-Council, 1946.
,t
The petitioner alleges-
. (1) That, on 08.05.83. at public meetings held atMalwathuhiripitiya and Narammala, in support of the 1strespondent's candidature, the 2nd respondent uttered thefollowing words -’It is with my full knowledge that certainindividuals belonging to opposition political parties were takeninto custody after Presidential Elections and the Referendum.There had been plans made by those individuals to createvarious disturbances in this country. After Tyrell Gunatillakewas entrusted to hold an inquiry on these people we releasedthe Naxalites, but after the inquiry report on 21st we wiHsuitably punish those people who are guilty.' (Para 4A of thepetition).
SC' Kumaranatunge v. Jayakbdy (Sheirvananda, C.J.)127
.(2) That on 08.05.83, at public meetings held atMalwathuhiripitiya and Narammala, in support of the 1strespondent's candidature,' the 2nd respondent uttered thefollowing words -'Vijaya Kumaranatunga is supposed to besaying that he was taken into custody. He was not just takeninto custody but.with my full knowledge. Those who are..creating disturbances cannot be allowed.to play with thepeople. If you vote for Vijaya Kumaranatunga the people of thisseat will only find themselves abandoned.. Therefore whenvoting, vote with due consideration." (Para 4B of the petition).
;• i. i
That on. 08.05.83, at a public meeting held atMalwathuhiripitiya, in support of the first respondent'scandidature, the. 2nd respondent uttered the followingwords -'The candidate for- Sri Lanka Freedom Party for theseat has announced that we kept him in custody. He was keptin custody according to my order. Why is that ? At Mr.Kobbekaduwa's meetings some 'persons have said that if theywin, J.R: will be hanged. J.R's intestines will be taken out.Another person had said that I will be. killed and they will walkon my blood to Presidents House. We got C.I.D., TyrellGunatillake to make . inquiries to find out the purpose behindthese statements. Vijaya Kumaranatunga was taken intocustody to inquire into that. We will get. that report before the21st. It will be decided accordingly whether the suspects willbe prosecuted or not." (Para 4C of.the petition).
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 the office of President of the Republic of. Sri Lanka.
s~
• [
On behalf of the 1st respondent, four objections, in limine, wereraised before the Election Judge and the court was askpd to reject
and/or dismiss the petition.;
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The objections were –
the 2nd respondent could not have been made a
pafty-respondent in these proceedings, his joinder contravenesArticle 35(1) of the Constitution ; the petition could not havebeen instituted; the court could not have entertained thispetition ;no process could have issued on the petition, and thepetition must be rejected. The Election Judge will not proceedwith the petition and make order either dismissing or rejectingit. — ■ . .
Rs. 10,000 paid as security is inadequate and in terms of Rule• 12(3) of' the 3rd Schedule to ' the ElectionsOrder-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 section 80(d) of the ElectionsOrdeMn-Council. The petition, therefore, cannot be proceededwith.
the statements alleged to have been, made by the 2ndrespondent do not in law constitute false statement? of fact inrelation to the personal character or conduct of the petitionerand these statements do not fall within the provisions of section
'58(1 )(d) of the Election Order-in-Council. If so, the petition
does not disclose the commission of corrupt practices andthere is nothing upon which this court could proceed to inquire- into.
' On the question of inadequacy of security, the petitioner haddeposited sums totalling Rs. 30,000. In view of this. Counsel for the1 st respondent did not press his objection in regard to security.
The Election Judge upheld the other three objections anddismissed the Election Petition with costs fixed at Rs. 1,500, payableto the 1 st respondent. Against this order of dismissal the petitionerappellant has preferred this appeal.
Article 35 of the Constitution provides as follows –
"(1) While any person holds office as President no proceedingsshall be instituted or continued against him in any court ortribunal in respect of anything done or omitted to be done byhim either in his official or private capacity.
SCKumaranatunge v. Jayakody (Sharvananda, CJ.)129
Where provisiop is made by law limiting the time within whichproceedings of,any description may be brought against anyperson, the period of time during which such person holds theoffice of President shall not be taken into account in calculatingany period of time prescribed by that law.
The immunity.conferred by the provisions of paragraph (1) ofthis Article shall not apply to any proceedings in any court inrelation to the exercise of any power pertaining to any subject orfunction assigned to the President or remaining in his chargeunder paragraph (2) of Article 44 or to proceedings in theSupreme Court under paragraph (2) of Article 129 or toproceedings in the Supreme Court under Article' 130 (a)relating to the election of the President.
Provided that any such proceedings in relation to the exerciseof any power pertaining to any such subject or function shall beinstituted against the Attorney-General.'
The sole ground for avoidance of the election is the allegation thatthe 2nd respondent, as agent of the 1st respondent committed acorrupt practice under Section.58 (1) (d) read with section 77 (c) ofthe Ceylon (Parliamentary Elections) Order-in-Council.
Section 80A-(1)(b) of the Ceylon (Parliamentary Elections)Order-in-Council. 1946, requires the petitioner to join as respondentin the Election Petition, any person against whom any allegation of anycorrupt practice is made in the petition. Sections 81, 82 and 82Dmake manifest the purpose of this mandate.
✓
Section 8Tof the Ceylon (Parliamentary Elections) Order-in-Councilprovides that –
"At the conclusion of the trial, of an election petition the ElectionJudge shall determine whether the Member whose return orelection is complained of, or any other and what person, was dulyreturned or elected, or whether the election was void, and shallcertify such determination in writing under his hand.
Such certificate shall be kept in the custody of the Registrar of theSupreme Court to be dealt with as hereinafter provided."
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Section 82 of the Ordinance further provides
'At the conclusion of j:he trial of an election petition the ElectionJudge shall also make a report under his hand setting out –
whether any corrupt or illegal practice has or has not beenproved to have been committed .by or with the knowledge andconsent of.any candidate at the election, or by his agent, andthe nature of such corrupt or illegal practice, if any ; and
the names and descriptions of all persons, if any, who havebeen proved at the trial to have been guilty of any corrupt orillegal practice ;*
Section 82D (1), (2) <b) provides that – where the report of theElection Judge is to the effect that a corrupt practice has beencommitted by any person that person shall be subject to the sameincapacities as if at the date of his report that he has been convictedof such practice.
According to these sections where the agent of the candidatecommits a corrupt practice in connection with the election, not only willthat be 'a ground for the avoidance of the election on an electionpetition, and the candidate's election declared void but the agent alsoshall be reported by the Election Judge to the President that he had .committed, a corrupt practice. On such a-report being rendered, theagent would be subject to the same incapacity as if he had beenconvicted of the practice. Section 58 (2) of the Ceylon (ParliamentaryElections) Order-in-Council states that –
"every person who is convicted of a corrupt practice under thissection shall, by conviction, become incapable for a period of sevenyears from the date of his conviction of being registered as anelector or of voting at any election under this Order or of .beingelected or appointed as a Member of Parliament.'
Mr. Senanayake, Counsel for the petitioner-appellant submitted thatit was in compliance withjhe mandatory requirement of Section80A (1) (b) of the Ceylon (Parliamentary Elections) Order-in-Council,that he joined the 2nd respondent, as a respondent to this Election> Petition. When confronted with the absolute prohibitions of Article 35
I
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of the Constitution he submitted that Article 35 is not relevant anddoes not apply to the case for the reason that though he was joined asa respondent to the Election Petition, the Election Petition is not aproceeding against the President. His contention was that the ElectionPetition is a proceeding only against tbe, candidate and not againstanybody else. He contended that the test to identify whether theproceeding is against a person is to look at,the relief sought by thepetitioner. According to him the object of the Election Petition and therelief claimed thereon by the petitioner is to have the Election declaredvoid. He emphasised that no relief was,, claimed by the petitioneragainst the 2nd respondent and ;that it was in compliance with themandatory provision of Section 80A(1){6) of the Ceylon(Parliamentary Elections) Order-in-Council that the latter was joined asa respondent to the petition.
I cannot agree with the construction urged by Mr. Senanayake. Thelegislature had a purpose in requiring the agent, against whom anallegation of corrupt practice is made to be joined as a respondent tothe election petition. An election petition -is a proceeding 'sui generis".The petitioner and the respondent to the election petition are not theonly parties having status in or interested in the'election petitionproceedings. It cannot be equated to a private litigation between twoparties. The State and the public are interested in the proceedings andthat is why an election, petition, once filed cannot’be withdrawnwithout leave of the Election Judge. Further the Election Judge iscalled upon not only to make a determination-whether the election isvoid' or not but also is charged with the duty of making a reportwhether any corrupt practice had been committed. He has to reportthe offender to the President and certain penal consequences flowfrom the report to the. person reported. It is not only the candidatewho will be on trial in an election petition proceeding but also allpersons against whom allegations of any corrupt or illegal practice aremade in the petition and who are named as respondents to thepetition in terms of section 80A. In these proceedings such personsare put in jeopardy of being reported to the President under section 82and incurring the penalties stipulated by section 82D. If the allegationof corrupt practice set out in the election petition is proved against2nd respondent adverse consequences not only against the 1strespondent (candidate) but also against the 2nd respondent willinexorably flow. Hence an election proceeding is, in my view, aproceeding not only against the candidate but also against the
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respondents joined to the Election Petition as mandated by Section80A (1) (b). Whether the proceedings following on such joinder isagainst the person joined or not, has to be tested from this angle andnot from the vantage point of the petitioner though no relief is claimedby him against the person joined as respondent, in terms of section80A (1) (t>). The election proceeding is a proceeding against him alsoas he is put in jeopardy of being reported by the Election Judge undersection 82.'
Article 35 gives a blanket immunity to the President from havingproceedings instituted or continued against him in any court in respectof’anything done or omitted to be done by him either in his official orprivate capacity during the tenure of his office. It is not confined toproceedings of civil or criminal nature. The immunity extends to anyproceedings of whatever nature, civil, criminal, quasi civil or quasicriminal etc.
Article 35 ousts the jurisdiction of the court to inquire into theconduct of the President, except in the circumstances specified inArticle 35(3). This Article is an integral part of the Constitutiondefining the powers, functions, immunities and tenure of office of thePresident. It supersedes the provisions of the ordinary statute law,wherever the latter is in conflict with or inconsistent with it. Article168(1), appearing in Chapter 21 relating to transitional provisions,however provides-
'Unless Parliament otherwise provides, all laws, written laws andunwritten laws, in force immediately before the commencement ofthe Constitution shall mutatis mutandis, and except as otherwiseexpressly provided in the Constitution, continue to be in force."
. Article 168(2) however states-
"Save as otherwise provided in the Constitution, existing laws,written laws and unwritten laws are not and shall not in any mannerbe deemed to be provisions of the Constitution."
The Ceylon (Parliamentary Elections) Order-in-Council, 1946, wasrepealed by Act No. 1 of 1981. The 5th Amendment to theConstitution amending Article 161 (certified on 25.02.83) hasrestored parts 4 to 6 (both inclusive) of the Ceylon (ParliamentaryElections) Order-in-council 1946 and has enacted that—
"the aforesaid parts of the Ceylon (Parliamentary Elections)Order-in-Council 1946, shall for the purpose of the Election,notwithstanding the repeal of such Order-in-Council, be deemed to
SCKumaranatunge v.Jayskody (Sharvananda, C.J )133
be in force and shall, mutatis mutandis and except, as. otherwiseexpressly provided in the Constitution apply to such election. Thelaw applicable to election petitions in relation to each ElectoralDistrict shall be the aforesaid parts of such Order-in-Council asapplied as aforesaid.'.
Article 161 commences with the words ‘notwithstanding anything tothe contrary in any other provisions of the Constitution.’
Mr. Senanayake submitted that the opening words of,-Article 161would admit the construction 'notwithstanding Article 35( 1) of theConstitution'. He urged that the expression used, in.the 5thAmendment is 'mutatis mutandis, and except as otherwise expresslyprovided in the Constitution' and not 'subject ;to the provisions of theConstitution', as in Article 168(6). Mr. Senanayake further arguedthat parts 4 and 5 of the Elections Order-in-Council had been elevatedto the status of constitutional provisions and that section 80(a) (1) (b)which is a part of part 5 supersedes Article 35(1) of the Constitutionas the 5th Amendment is a later Act. The short answer to this lastsubmission is that Atricles 161, as amended by 5th Amendment hasto be read along with 168, which provides 'Ssve as otherwiseprovided in the Constitution, existing laws are not and shall not in anymanner be deemed to be provisions of the Constitution.”
The words 'mutatis mutandis' means subject to necessaryalterations.
The words 'notwithstanding anything to the contrary in any otherprovision of the Constitution" prefacing Article 161 mean that duringthe transition period the provisions of Article 161 shall apply to thematters dealt with by Article 161 even though such matters have beenprovided for otherwise in the other Articles of the Constitution. Article161 deals with the concept of the first Parliament, and of the electionto such Parliament and of election petitions in relation to suchelections. Article 62 provides that the Parliament shall consist of 196members, elected by the electors, in accordance with the provisionsof the Constitution, namely proportional representation as provided forby Article 99. By operation of the opening words in Article 161. theprovisions of Article 62 of the Constitution which would otherwise beapplicable will not apply to the first Parliament. The words “except andotherwise expressly provided in the Constitution" mean that in matterswhere there is a conflict and there is no express provision in theConstitution in respect of the matter, the provision of the Elections
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Order-in-CouriCil will apply. In this context the question arises whethersection 80(A)(1)(b) of the Ceylon (Parliamentary Elections)Order-in-Council; 1946, has to yield to Article 35(1) of theConstitution.
Section 80(A)(1)(b)contains a general rule that a person againstwhom allegation of corrupt practice is made in the election petitionmust be joined as respondent thereto. Article 35(1) is a specialprovision dealing with a special situation, namely, immunity of thePresident from proceedings in court. Halsbury's Laws of England,' 3rdEd. Vol. 36i page 397, para 597 states-
'Wh'enever therd 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.*
'Where a general intention is expressed, ahd also a particularintention which is incompatible with the general one the particularintention is considered as an exception to the general one.'(Churchil v. Crease) 1,828, 5 Bing 177, at 180 per Best. C.J.
That is, though'section 80(A)(1)(b) provides that all persons againstwhom allegations of corrupt practice are made in the petition must bejoined as respondent. Article 35(1) of the Constitution provides for theparticular case of the immunity of the President from proceedings incourt and constitutes an exception to the general rule contained insection 80(a)(1)(b). Article 161 as amended by the 5th Amendmentwill thus have to be read subject to Article 35 of the Constitution.Accordingly no election proceedings can be instituted or maintainedwith the President being a party to it.
Mr. Senanayake further submitted that Article 35 jars with theconcept of democracy, purity of elections, right of franchise whichaccording to him are the basic features of the Constitution. In thisconnexion he referred us to Articles 1,3 and 4 (e) of 'the Constitution.He submitted that Sri Lanka cannot be a Democratic SocialistRepublic, if the President is given the comprehensive immunityvisualised by Article 35 of the Constitution. I cannot see any conflictbetween Article 35 on the one hand and Articles 1,3 and 4 (e) on theother. Article 35 is an integral part of the Constitution dealing with thepowers, functions and immunities of the President, as much as
SCKumaranatunge v. Jayakody (Sharvananda. CJ.j135
Articles 1, 3 and 4 (e) of the Constitution. The absolute immunity ofthe President may conceptually be. inconsistent with principles ofdemocracy and sovereignty of the people. But it is not for a court oflaw to question the validity of any particular provision of theConstitution. Where the language of the Constitution is plain andunambiguous, effect has to be given to it and a court cannot cut downthe scope or amplitude of such provision for the reason that notionallyit cannot harmonise with ah ideai of the .Constitution.
The impugned election petition is in my view a proceeding againstthe President and is violative of Article 35 (1) of the Constitution.There is a constitutional bar to the President being made a party to anelection petition. An election petition with the President as arespondent, cannot be proceeded with. In fact such an electionpetition cannot in law be instituted. I agree with the Election Judgethat the impugned election petition cannot be sustained. Thepreliminary objection is fatal.
In regard to the charge relating to the making of false statementsMr. Choksy submitted that the alleged statement does not, in lawconstitute a false statement of fact in relation to the personalcharacter of the petitioner and therefore does not disclose a corruptpractice within the meaning of section 58 (1) (d) of. the ElectionOrdeHn-Council.
An essential requirement of a statement, for it to come within themeaning of section 58 (1) (d) of the Elections Order-in-Council, is thatit must be in relation to the personal character or conduct of thecandidate as distinct from a statement relating to his political or publicconduct.
'The principle underlying this provision of law appears to us to bethat public character or conduct of the 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 or conduct is therefore slight and is outweighed by theparamount necessity of allowing free and unfettered criticism of thepublic or political acts of public men and politicians. Whilst on theother 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 the
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candidate may be calculated seriously to mislead the electors to theprejudice of such candidate.' Kobbekaduwa v. J. R Jayewardeneand Others (1).
"The false statement of fact need not be defamatory at commonlaw. so long as it is a statement which is calculated to influence the
electors, 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 vyill be.’interpreted according to their real and truemeaning, and not according to their literal sense. The question to be..determined is what, in the circumstances, is the true meaning which^ the reader would place upon the statements. The true meaning will'depend oh the occasion of the publication, the persons publishing,the person attacked and the readers intended to be addressed.'Halsbury's Laws of England – 4th Ed. Vol. 15, para. 790.
The Election Judge has taken the view that the sense in which thealleged false statements were understood by persons present in themeeting is irrelevant and that it is for the court to interpret the allegedstatement and not for witnesses to say what they understood thestatement to mean. The Election Judge held that 'If to ’abel acandidate as a communist, even if it is false, is not a reference to hispersonal character and conduct, I fail to see how to call a candidate aNaxalite. relates to his personal character and conduct.' The ElectionJudge upheld the objection that the impugned statement did not inlaw constitute a false statement of fact in relation to the personalcharacter or conduct of the petitioner and that therefore the petitiondid not disclose a corrupt practice within the meaning of section58 (1) (d) of the Elections Order-in-Council, 1946. In my view theElection Judge is in error in holding that the sense in which the allegedstatements were understood by those present at the meeting wereirrelevant. As stated in the passage in Halsbury's Laws of England,cited {supra) the true meaning of the statement will depend inter aliaon the readers intended to be addressed. Hence unless the meaningcannotTae disputed and is obvious, how the impugned statement wasunderstood by the members of the audience is relevant to determinethe nature of the statement and the sense in which it.was understood.The statement intended was calculated in influence the voters who'were present at the meeting and hence what is meant by the term
SCKumaranatunge v. Jayakody (Sharvananda. C J.)137
Naxalite' and how the term was understood by the voters present atthe meeting and whether the said statement was understood by thesaid voters to be relating to the personal or public conduct of thepetitioner has to be determined on the evidence of witnesses.
In my view it was premature for the. Election Judge to have upheldthis objection that the petition did not disclose a corrupt practicewithin the meaning of section 58(1)(d) of the ElectionsOrder-in-Council without having the benefit of evidence showing thatthese alleged statements were understood by the voters to refer tothe petitioner and what is meant by the term Naxalite' and whetherthe statement relates to the personal character or conduct of thepetitioner. The learned Election Judge misdirected himself in law inupholding the objection, when the meaning of 'Naxalite' was notcertain He could have ruled on that objection only after hearingevidence of what that word was understood to mean or signify
The third objection relates to the adequacy of the affidavit filedalong with the petition. Paragraph 2 of the affidavit of the petitionerstates – "that the particulars of the commission of corrupt practice setout therein are made from my own personal knowledge andobservation, or from personal inquiries'conducted by me in order toascertain the details of the incident referred to in the petition " TheElection Judge states that the petitioner does not say in his affidavitwhich facts in the petition are based on personal knowledge and whichof them are based on information. He however holds that the affidavitcan be one based on personal knowledge or on information and beliefprovided that if the latter, the deponent must disclose the source ofinformation and the grounds of his belief: He also held that thefunction of an affidavit is to verify and support the allegation of corruptpractice made in the petition and that an affidavit that fails to performthe function is not an affidavit in the eye of the law. The Election Judgehas held that the affidavit is defective in that the deponent has notdisclosed the source of information and the grounds' of his belief. Heconcludes –
"I reject the affidavit filed by the petitioner on the ground that thepetitioner has not verified and confirmed the facts stated in thepetition. I upheld the objection that There was mo proper affidavitsupporting the allegation of corrupt practice.pleaded in the petitionand therefore the petition was defective."
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Section 80 B of the Ceylon (Parliamentary Elections)Order-in-Council provides that –
‘The petition shall also be accompanied by an affidavit in theprescribed form in support of the allegation of such corrupt or illegalpractice and the date and place of the commission of suchpractice:'
Admittedly no form has been prescribed for the affidavit to conformto.
I agree with the Election Judge that where some of the statementsin the paragraph of the affidavit accompanying the election petition arebased on the knowledge of the deponent and some on informationreceived from others, the affidavit is defective. But I do not agree withthe Election Judge that the petition should be dismissed on thatground of defect in the verification. The allegation of corrupt practicecannot be ignored merely on the ground that the source of informationis not disclosed, when the allegation is based on information, as it isnot a requirement of law that the source of information or the groundof the deponent’s belief should be set out, since the form of themandatory affidavit has not been prescribed.
I agree with Samarawickrema, J., that an election petition shouldnot be dismissed on the ground of defective affidavit, where no formhas been prescribed by law.
I uphold the Election Judge's ruling on the first preliminary objectionand dismiss the election petition. There will be no order for costs.
COLIN-THOMfe. -1 agree.
ATUKORALE, J. – I agree.
DE ALWIS, J. -1 agree.
WANASUNDERA, J.
I shall now address myself to the second appeal No. 5/84. Thepetitioner who is an unsuccessful candidate has filed the secondpetition against the winning candidate, the 1 st respondent, and JuniusRichard Jayewardene (who is the President of.the Republic) as the 2nd
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respondent: The petitioner sought the avoidance of the election on theground that the 2nd respondent, as the agent of the 1st respondent,committed the corrupt practice of making false statements of fact inrelation to the personal character and conduct of the petitioner for thepurpose of affecting the return of the petitioner. The ground is section77 (c) and the petition contains three charges.
At the commencement of the hearing, three preliminary objectionswere taken on behalf of the 1 st respondent. The 2nd respondent didnot appear in court, nor was he represented. The Solicitor-Generalhowever appeared as amicus curiae and assisted the court in regardto the constitutional question as to the validity of joining the 2ndrespondent as a party respondent. These objections are
The joinder of the 2nd respondent contravenes Article 35 (1) ofthe Constitution which grants immunity of action to thePresident. The petition is accordingly invalid and the court hadno jurisdiction to proceed with the petition.
The affidavit is inadequate and accordingly the petitioner cannotproceed with the petition as it is not properly constituted.
The statements complained-of do not in law constitute falsestatements of fact in relation to the personal character orconduct of the petitioner and do not fall within the provisions ofsection 58 (1) (d) of the Order in Council.
Grounds (b) and (c) need not detain us. We decided at the hearingthat as ground (a) contains a factual element, it has in any event to beleft to the election court for determination. I have already dealt withand disposed of the objections relating to ground (b) in the judgmentdelivered today in the connected appeal No. 4/84.
Ground (a) however Constitutes the main objection and remains tobe considered.J
It would be useful, however, to go back to the analysis of theprovisions of the Ceylon (Parliamentary Elections) Order in Councilmade by me in the earlier judgment. For the purpose of this analysis Ihave accepted almost in toto the submission of Mr. Choksy and to agreat part that of Mr. Candappa as regards the dual functions vestedin the election court.
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The result of this analysis shows that an election petition proceedingcontains within it notionally two separate kinds of inquiries wrapped inone proceeding. First, there is the proceeding against the successfulcandidate for the avoidance of the election, and second, thesubsidiary inquiry as to whether any person has committed a corruptor illegal practice.
I have discussed these provisions in detail in the connectedjudgment referred to, but would like to stress that prior to theamendment of 1970, the person involved in the subsidiary proceedingwas not even required to be made a respondent to the mainproceedings ; but in the event evidence comes to light in the mainproceedings, sufficient to establish a case against him, such personwould be given an opportunity of meeting these charges at a laterstage. The successful candidate shouldered the entire burden ofdefending his election and no complaint was made that he was in anyway handicapped by the absence of the other person. The present lawis that such a person has now to be made a respondent – this beingmerely a procedural improvement .on the old law – but in my view hisinvolvement in the proceedings in no way alters the nature of the mainproceedings which is directed towards the avoidance of the electionand nothing else.
The presence of the person involved in the subsidiary inquiry is notessential as a matter of substance for the determination of the electionpetition. His presence, which was not originally required, is nowprovided for by amendment and is a pure procedural measure made inthe interest of such person alone and not of the successful candidate.Where the main inquiry is concerned. I do not think that in law the 2ndrespondent could be regarded as a necessary party to theproceedings. He has no interest in the subject-matter of the mainpetition, and it is also possible for the court to make an effective orderin that matter without his presence.
There are other weighty considerations for holding against therespondents on this issue. The democratic structure under which thiscountry is administered works on the basis that the People in whomthe Sovereignty is vested, rule through their lawfully elected orappointed representatives. These representatives, who act in theirname and on their behalf, must bear proper credentials. They must belawfully elected at a fair election. An allegation that a successfulcandidate has been improperly returned is a grave one and touchesthe very basis of the governmental structure of this country.
sc
Kumatanajunge v. Jayakody (Wanasundera, J)
141
The effect of the respondents' argument for the dismissal of thewhole petition is that, if a corrupt or illegal practice is committed bythe President, acting in his political capacity as the agent of asuccessful candidate, the immunity of the President should beregarded as extending to cover the action of such candidate so as tomake him immune from action, thus preventing the validity of hiselection being challenged, although founded .on an illegality. Thiswould place such a candidate in a special position not enjoyed byother successful candidates. Such a view appears to strike at the veryroots of the democratic process that obtain in this country. If thatargument is valid, then it would be possible for a party, whose majorityis due solely to the fact that some of its candidates have beenimproperly elected to foist on this country a Cabinet and aGovernment, which in the eye of the law should have no legal validity.
The question about the validity of an election, therefore, is a seriousmatter. If we are concerned about the proper working of theConstitution and the protection of democracy in this country, the legalprocedure for challenging such an election must be allowed to prevailand operate unless there are very sound and compelling reasons tothe contrary. The immunity given to the President is not a blanketcover to protect the wrongful activities of other persons, who mayhave some indirect connection with the President. The Presidenthimself is a component of our democratic process and functionswithin its confines. He does not stand beyond or above it. Theimmunity he enjoys is a shield and meant to protect the Presidentalone from harassment as long as he holds office. It cannot be used asa sword especially by others.
As far as the 1st respondent is concerned, he can point to noinconvenience or disadvantage which he would suffer by the absenceof the 2nd respondent in the proceedings against him. The electionpetition for the avoidance of the election could continue to be validlyconstituted notwithstanding the fact that the 2nd respondent cannotbe impleaded as the law cannot reach up to him. I can see noimpediment to the court inquiring into the petitioner's complaint forthe avoidance of the election and coming to a finding in the absence ofthe 2nd respondent.
J 42
Sri Lanka Law Reports
[198512 Sn L.R.
The office of the President is an onerous one and a wide coveragefor his acts has been claimed on his behalf. The Solicitor-Generalstated that this immunity was unparalleled in any part of the world andthere may be some truth in this statement when we compare hisposition with that of many other Heads of State. But, on closerexamination it does not appear to be that wide and one discernscertain limitations, some expressly indicated and others of anextraneous nature inherent in the matrix in which this immunity isembedded. This immunity, whatever its coverage and range appearsto be, essentially of a functional nature and designed to ensure thesmooth functioning of the office of President, for the President underthe present Constitution exercises the totality of the Executive powerof the State.
I would however accept the submission of both the Solicitor-Generaland the respondents and hold that the President cannot be impleadedby reason of the immunity contained in Article 35. While theprovisions of the Elections Order in Council must be read subject to theoverriding provisions of Article 35 in this regard. Article 35 cannot beheld to give wider coverage than what may be required for the specificpurpose and object it was intended. It does not have the effect ofstifling an election petition, which is an important part of themachinery of the democratic process.
Having regard to the views expressed earlier, the Election Petitionshould then proceed to trial notwithstanding the absence of the 2ndrespondent who falls out of the picture as a respondent due to theoverriding legal operation of Article 35. As to whether any furtherproceedings can be taken in respect of the 2nd respondent at a laterstage is not a matter on which an expression of opinion is called fornow, as it is a hypothetical question. It is indeed rendered doublyacademic now in view of the majority decision terminating all theseproceedings.
In my view this appeal, should be allowed with costs payable by the1 st respondent, and the Election Judge proceed with the hearing ofthe petition in the absence of the 2nd respondent.
Appeal dismissed.