084-NLR-NLR-V-42-PIYADASA-v.-GOONESINHA.pdf
Piyadasa v. Gaonesinha.
339
1941Present: Soertsz J.
PIYADASA v. GOONESINHA.In re Application fob a Writ of quo warranto.
Municipal Election—Election questioned on grounds of general undue influenceand general bribery—Failure of authorities to provide adequatemachinery for taking votes—Partiality of presiding officer—ColomboMunicipal Council (Constitution) Ordinance, s. 39 (1 and 2) (Cap. 194).A writ of quo warranto lies to question the election of a member to theMunicipal Council on the grounds of general undue influence or generalbribery.
A Municipal election cannot be questioned on the ground that theresponsible authorities failed to provide adequate machinery for theproper taking of the votes of the electors. Such an election cannot bequestioned on the ground that the presiding officers were partial to themembers elected unless the alleged partiality could be brought withinthe scope of undue influence or bribery.
T
HIS was an application for a writ of quo warranto to question theelection of the respondent as member of the Maradana Ward
(South) of the Colombo Municipality.
H. V. Perera, K.C. (with him C. V. Ranawaka, Dodwell Gunawardana,and V. F. Gunaratne), for respondent, raised the preliminary objectionthat the writ of quo warranto does not lie.
Municipal bodies are mere creatures of statutes and statutes arecreatures of Parliament itself.
In England prior to 1872 no writ of quo warranto was available. After35 and 36 Statutes Victoria Chapter 60, section (6), quo warranto wouldlie. Under section 44 quo warranto would lie against the presidingofficer.
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Piyadasa v. Goonesinha.
The common law of Parliament must not be confused with commonlaw as opposed to equity.
No common law is applicable to bodies created by statute. The lawapplicable to such bodies is the statute law.
Where the statute is silent you cannot engraft the common law muchless the common law of Parliament.
In 1872 for the first time elections became voidable.
Where the Legislature provides for an election petition, no writ isavailable, vide Rogers on Elections, p. 270. After 1872 Woodwards v.Sarsons1 was decided.
Municipal elections in Ceylon are governed by the Colombo MunicipalCouncil (Constitution) Ordinance, Chapter 194. Petitioner may not gooutside this Ordinance to question an election. Sections 16 and 17 setsout grounds on which members vacate office.
Section 18 deals with persons ousted from office who refuse to vacatetheir seats. The Ordinance is silent regarding general bribery andgeneral corruption. Hence Legislature did not intend elections to beimpeached on these grounds. You cannot apply the common law ofParliament in Ceylon. The provisions of the penal law could be enforcedin case of bribery and corruption. The Legislature has no intention inminor elections to make provision for an election petition. In theseelections there should be finality. In the Application for mandamus onthe Chairman, Municipal Council the writ was refused.
An election canot be questioned on the grounds that the authoritieshad failed to provide adequate machinery for voting. Section 39 (1)provides that “it shall be the duty of the returning officer to provideat each polling station reasonable facilities for voting. .
The third ground on which the writ should be refused is that thereis unreasonable delay in applying for the writ Wijeyratne v. Obeysekera‘.
The application for the writ is not made bona fide. The defeatedcandidate has put forward a man of straw to come forward and ask for awrit. At least as a salutory measure an order for security for costsshould be made.
C. S. Barr Kumarakulasingham (with him H. Wanigatunga, S. Saravana-muttu, and H. W. Jayawardene) for applicant.—The writ is asked on thefollowing grounds: — (a) General undue influence, (b) general bribery, (c)inadequate machinery for the taking of votes, (d) partiality of presidingofficers.
In England by the Common law writ of quo warranto would lie.Rogers on Elections, 18th edition, p. 269.
In re Chairman of the Municipal Council' (supra) it was held that wherean election was merely colourable, a writ would lie.
The position is that no election has taken place.
See In Salkedos Reports, p. 373. In this case there was usurpation ofpublic office and writ was available. Vide Short on Mandamus, p. 112.
The history of quo warranto is fully discussed in Rex. v. Speyer'.This case discussed whether Privy Councillors were qualified to sit
though appointed by the King.
» 32 LT. 867.
* 18 N.L.R. 97.
3 30 N. L. R. 153.* (1916) 1KB 595.
SOERTSZ J.—Piyadasa v. Goonesinha.
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Drogheda’s case 1 O’M. & H., p. 257 was decided before 1872. Nolocal authority is available exactly in point.
In India the English principles regarding quo warranto are applicable.Indian Election Petition Vol. (1).
It was held that (In re the Jaffna Local Board Elections1 theSupreme Court has the powers which are expressly or impliedlygiven to it by statute.
In re Guildford 1869 1, O.’M. & H. 15, Willes J. held that the policy andthe theory of the law is that a man upon whom the elective franchise isconferred should judge for himself which is the best and preferablecandidate and give his. vote accordingly.
In South Meath. 4 O’M. & H., at pp. 142 and'147 Andrews J. stated“ freedom of election is absolutely essential to the validity of election ”.
There has been no undue delay. The oath of office must be takenbefore writ becomes available Madanayake v. Schrader *. The MunicipalCouncils Ordinance is silent regarding bribery and corruption. Byapplying the common law of Parliament the writ becomes availableto the Ceylon Municipal Council. If no' writ is available a candidatecould resort to the worst type of bribery and corruption and intimidationand thus get elected.
Cur. adv. vult.
May 19,1941. Soertsz J.—
This is an application for a mandate in the nature of a writ of quowarranto to oust the respondent who is the de facto holder of the office ofMunicipal Member for the Maradana South Ward of the ColomboMunicipality, from that office on the ground that he is not entitledde jure to it because, it is alleged, his election was procured (a) by generalundue influence; (b) by general bribery; and also because (c) theresponsible authorities failed to provide adequate machinery for theproper taking of the votes of the electors; and (d) the presiding officersin many, instances were partial to the respondent. These were thegrounds to which petitioner’s counsel stated he proposed to confine'himself.
It is conceded that if the writ lies, the petitioner is competent to askfor it. Nor can it be denied that the office in question is one in respect ofwhich quo warranto lies. It is a public office of a substantive character.But counsel appearing on behalf of the respondent to show cause againstthe Rule Nisi granted by Hearne J. has taken certain preliminary objectionson which he asks that the Rule be discharged. He contends firstly thatquo warranto does not lie to question a Municipal election on the groundeither of general undue influence or general bribery. He submits thatthe whole matter of Municipal elections and their avoidance is to befound in the Colombo Municipal Council (Constitution) Ordinance (Cap.194) and in the Enactments referred to therein and that the petitionermay not go beyond them to question an election. In support of thissubmission, counsel points out that sections 16 and 17 of the Ordinanceset forth certain matters by reason of which a member vacates his office,1 1 A.C. R. 128.* 29 N. L. S. 389..
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SOERTSZ J.—Piyadasa v. Goonesinha.
and that section 55 penalizes, inter alia, bribery and undue influenceand provides for a member vacating his office on being convicted of theseoffences. Section 18 provides machinery for ousting from office a memberwho has vacated his seat but refuses to surrender it. He argues, and inmy opinion rightly argues, that quo warranto will not lie in respect ofthose matters for it lies only when there is no other remedy. -• But he goeson to contend that the Ordinance is silent in regard to general briberyand general undue influence and that it must be assumed that thelegislature did not intend that an election should be impeached on suchgrounds, and only intended to unseat members whose own hands weretainted with bribery and undue influence. I cannot agree with himthere. It is true that English Parliamentary law and Practice have noapplication here unless they have been expressly or impliedly adoptedby us. It is also true that English Common law and our Common laware two different things, but it is a law common to all civilized societiesthat elections of this kind should be pure and of free choice, that it shouldbe a reality and not a sham. If I may adopt the language of Willes J.in Guildford 1869—1, O & H. 15 “The policy and the theory of the law isthat a man upon whom the elective franchise is conferred should judgefor himself which is the best and preferable candidate and give his voteaccordingly ” ; and the language of Andrews J._ in South Meath 4, O & H.142 at 157 “ Freedom of election is at common law absolutely essentialto the validity of an election. If this freedom be prevented generally,the election is void at Common law, and in my opinion it matters not bywhat means the freedom of election may have been destroyed. This iswholly independent of Statute law. It would be absurd and unnaturalto contend that there could be a valid election which was not a freeelection. The Statute law not only leaves the Common law principleintact but supplements it by stringent enactments.” It is upon thatprinciple that our Ordinance bases itself when it penalizes individualacts of bribery and of undue influence and that presupposes that we hereabhor an election procured by general bribery and general undue influenceand regard it as obnoxious to the law just as much as the inhabitants ofEngland and other countries, although we have not yet framed for our-selves anything in the nature of a Corrupt Practices Act in regard toMunicipal- Elections as they did in Englandas far back as 1872 byVictoria, Cap. 60. That Act was passed .expressly for “ the betterprevention of Corrupt Practices at Municipal Elections ”. Once thatAct was passed, quo warranto ceased to lie, as pointed-out by Short onMandamus at page 158, to question an election on the grounds on whichit was possible to question it under that Act, but by clear implicationquo warranto still lies to question it on other grounds on which theCommon law of England allowed it to be question. Similarly, inCeylon quo warranto will not lie to impeach an election, e.g., on the groundsset for in sections 16, 17, and 55 of our Ordinance because there isspecial provision in the Ordinance itself in regard to these matters but,I am of opinion that it does lie for general bribery and general undueinfluence for there is no other way of dealing with them. I am fortifiedin this view by the history of our writ of quo warranto. It is a writthe issue of which was put into our hands only a few years ago and only
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after the Judges had repeatedly deplored the fact that it was not com-petent to them to grant the writ and so question disputed MunicipalElections. (See (a) Abeywardane v. Chairman, M. C., Galle1; -(b)Application for a Mandamus on the Chairman, Municipal Council ‘;
In re Jaffna Local Board Elections *.)
Counsel for the respondent contended secondly that objection (c) wasnot a matter for which quo warranto would lie for the reason that sub-section (2) of section 39 of the Ordinance says that “ an election shallnot be questioned by reason of non-compliance with section 39 (1) whichprovides that it shall be the duty of the Returning Officer to provideat each polling station reasonable facilities for the voters ….to enable them to vote in accordance with the provisions of this Ordi-nance ”. I agree with the contention. Besides, so far as I was able togather from the affidavits referred to and from petitioner’s counsel’ssubmissions the objections are so vague that it would be a waste of timeto enter upon them. In regard to ground (d) too, the allegations appearto be extremely vague. If the petitioner can bring the alleged partialitywithin the scope of undue influence or bribery he is entitled to do that,'-but partiality in the sense of sympathy with the respondent’s candidaturebegotten of the relationship between the respondent and some of thePresiding Officers as between the then Mayor of the Municipal Counciland employees of that Council cannot be entertained. That is a matterin regard to which there may be legitimate criticism, but again, that isa matter on which public opinion should assert itself and seek theintervention of the Legislature.
Respondent’s counsel also asked that the rule be discharged on theground of the delay there has been in making this application. I do notthink there has been any undue delay. The election was held in Januaryand the petitioner had to await the occupation of his seat by the respon-dent before he came into Court, and he made his application in February.Lastly, Counsel for the respondent asked that the petitioner be requiredto give security for the respondent’s costs. After careful considerationof this request, I think that in all the circumstances, it is a reasonablerequest. In the result I direct that this matter be fixed for inquiry onobjections (a) and (b) on as early a date as possible, not necessarily beforeme, on the petitioner depositing Rs. 500 in cash or giving sufficient securityto cover that sum on account of costs, within three weeks of this orderbeing pronounced. At the inquiry those persons from whom affidavitshave been filed will have to be called and tendered for cross-examinationby the petitioner or the respondent as the case may be if they are so .required to be tendered by either party. The affidavits of any personrequired to be tendered and not tendered will not be considered. Inaddition to persons who have supplied affidavits, the petitioner and therespondent will be entitled to call witnesses to testify on matters relevantto the allegations of general undue influence and general bribery.
If I may, I would take this opportunity to say that it is desirable thatthe State Council Order in Council in regard to Elections to the StateCouncil be adopted mutatis mutandis to govern Municipal elections.
R. 304.*18 N. L. R. 97.
* 1 A. C. R. 128.