048-NLR-NLR-V-45-RUTNAM-v.-DINGIRI-BANDA.pdf
HEAHNE J.—Rutnam c. M. Dingiri Banda.
145
1999Present: Heame J.EUTNAM v. M. DINGIRI BANDA
In the Matter of the Election for the Ntjwaka EliyaElectoral District.
Election Petition—Charge of undue influence* by agents—Activities of agentsadopted by candidate—Offences committed by agents would avoid elec-tion—General intimidation affecting result of election—Burden of proof—CState Council Elections) Order-in-Council, 1931, Article 53.
Where, in an election petition, there is evidence that certain personawere found canvassing and distributing identity . cards and leaflets onbehalf of a candidate and that the candidate adopted their activities, aJudge may conclude that the agency of such persons has been established.Undue influence exercised by such persons would avoid an election evenif the offence was committed without the sanction or connivance of thecandidate, unless itcouldbeshown that thecandidatehadtaken all
reasonable means for preventing the commission of corrupt and illegalpractices.
Where general intimidation that may have affected the result of anelection is proved itis nopartof the duty ofa Judgeto enter into a
scrutiny whether, if that intimidation had not existed, the result wouldhave been different.In such acase the burdenof proof is castupon the
constituency) whose conductisincriminated, andunless itcanbe shown
that the gross amount of intimidation could not have possibly affectedthe result, the election ought to be declared void.
T
HIS was an election petition impugning the return of the re-spondent as member of the State Council for the Nuwara Eliya
Electoral District at an election held on October 16, 1943.
The charges laid in the petition were (a) general intimidation and (6)undue influence under Article 53 of the (State Council Elections) Order-in-Couneil, 1931.
The facts are fully stated in the judgment.
G. S. Barr Kumarakulasingham (with him Vernon Wijetunge, T. D. L.Aponso. J G. T. Weeraratne and Muttusamy), for the petitioner.
R. L. Pereira, K.C. (with him H. W. Jayewardene and G. T.Samarawickreme), for the respondent.
Later:E. G. Wikremenayake (with him H. W. Jayewardene and
Samarawickreme), for the respondent.
Cur. adv. vult.
March 10, 1944. Hearne J.—
This is an inquiry into a petition by Mr. Rutnam impugning the returnof Mr. Banda as Member of the State Council for the Nuwara EliyaElectoral District No. 22 at an election held on October 16, 1943.
146
HiSARNE J.—RuLnam v. M. Dingiri Banda.
The petitioner, a Ceylon Tamil, received 11,093 votes, the respondenta Kandyan Sinhalese 12,652, while Mr. Beddewella and Mr. Alawatugodaalso Kandyan Sinhalese, received 1,484 and 201 votes respectively.
Tbe charges laid in the petition were (a) general intimidation' and (b)that “ the respondent was guilty, of undue- influence under Article 53-of the Order-in-Council, 1931, as he, by persons acting on his behalf,used force and violence and threatened to use force and violence on votersin order to induce and compel such persons to refrain from voting at theelection ".
Freedom of choice is essential to the validity of an election and if,by intimidation of voters, this freedom is prevented generally, theelection is void. But, as I pointed out to Counsel for the petitioner, inorder tc avoid the election under (f>), it would be necessary to prove thatthe undue influence alleged was committed by the respondent, or withhis knowledge or consent, or by an agent or agents. He undertook toprove that the guilty parties were agents of the respondent.
TLis inquiry, it need hardly be said, is not solely a contest betweenMr. Butnam and Mr. Banda. Much more than'a mere personal issue isinvolved. One of my duties is to ascertain whether there has been aviolation of a fundamental right, the free exercise of the franchise, andin this the public weal is involved.
If voters are driven from the polls by force or prevented from goingto the polls by threats or obstruction or denunciation and abuse, freedomof election in Ceylon will cease to exist. The successful candidate noilbe the one whose supporters have the power to record their votes and,as far as possible to prevent the rival candidate’s supporters from doingso. It would be utterly subversive of the principle of freedom of election.
The victimisation of voters at Wellagiriya, one of the polling stations,affords a good illustration of what I have in mind.
It was by playing on the fears of the labourers from Marigold estate,who accompanied Maiyappen Kangany, rather than by actual intimida-tion, that some of them were induced to refrain from voting. Theywere told on their arrival that there was trouble ahead and, if they wentany further, they would do so at their peril, or words to that effect.According to Maiyappen about a third of his followers fled, the remainderstood their ground till the arrival of an Assistant Superintendent ofPolice when they voted.
"With the exception of a very few the followers of Francis Moses, thetea maker, did not even wait for the police. At the first sign of oppositionand of threats they abandoned their mission and made for the securityof Marigold. They had been told that “ if they voted they would notreturn to the estate alive.”
It cannot be said that Maiyappen’s followers displayed the ordinarynerve and courage of adult men, but I am not prepared to say that hadthey shown greater determination than they did, a breach of the peacewould not have resulted.
It would certainly have resulted in the case of the followers of VaithvKangany. They were earlier arrivals who were stopped at the foot of aflight of steps leading to the polling station. Access to the steps could behad one or two at a time and it was at this position of advantage that
HBAHNB J.—Rutnam t>. M. Dingiri Banda.
147
Sinhalese had assembled. At the time of the arrival of Mr. Gomis withVa’.lhy and his men, an Indian labourer was being handled in an objection-able manner by a ruffian who had decided that the labourer was tooyoung to vote. He was at least 25 years of age. This was followed bya decision that no Indians were to be permitted to vote at all. Sinhalesevoters were allowed to pass up the steps but Indian voters were pushedback.
Tt, is impossible to conceive of a more astounding situation. Unmiti-gated hooligans had taken full control of affairs. They were decidingwho were to be permitted to vote and who were to be turned awayand they were doing this, it is to be noted, almost at the very portalsof what has been called " the voters.’ hall of freedom ”, the polling both.
Mr. Gomis was socially on good terms with Mr. Banda, he was not apolitical supporter of Mr. Butnam, he is a Sinhalese employed on anestate as a dispenser and I accept his evidence as being frank and dis-interested.
A statement alleged to have been made by him to the police wasproved According to police witnesses this statement and those ofothers which were recorded at Wellagiriya indicated that all the Marigoldlabourers who had come there to vote eventually did so. I do notaccept this conclusion. Those who remained till the arrival of the policeprobably did, but not those who had left before 12.10. This was thetime that an A.S.P. and an Inspector arrived.
Till then there had been a steady flow of Sinhalese voters to the polls.The Indians, on the other hand, were standing about in groups. Theywere not waiting out of choice but out of necessity or. rather becausethey were afraid. The more timid ones, however, had fled. Mr. Fin-linson was definitely told that some Marigold labourers had been unableto record their votes and on the evidence I accept this as the truth.
I iave already referred to the fate of those who accompanied Maivappenand Fiancis Moses. Of Vaithy’s followers a very few voted, the majorityof them preferred inglorious retreat. The Indian labourers from Gona-pitia showed the same preference and, as will be seen, with more justi-fication.
They were led by Arunachalam, the Head Kangany. On his arrivalthe rosette he was wearing was snatched from his coat and later he wasstruck on the back of his head. Arunachalam’s assailant, definitelyidentified as Kiri Banda Samarakone, was also responsible for an assaulton v labourer by the name of Suppiah. He was probably the leader ofthat party of ruffians at Wellagiriya which included, amongst others, hisbrother Dingiri Banda Samarakone and E. U. B, Batnayake.
I accept the evidence that Arunaehalam’s men were actively obstructed,that they were threatened by the use of such expressions as ‘‘those whogo in to vote will discover their mistake ” and – that they were insultedby being called ‘ ‘ sons of Tamil whores who have no vote ’ ’. Thisexpression of abuse, I may add, is mild in comparison with others thatwere used at the election. Some of the latter, hurled at voters or paintedin tar on culverts, walls and trees, reveal the recesses of very lewd minds.
148
HEAIiNE J.—Rutnam v. M. Dingiri Banda.
1 alr.o find that physical violence was used on Arunachalam and Suppiahin order to deter them as well as others who witnessed the assaults fromexercising their right to vote.
A complaint was made on the same day to Mr. Schofield, theSuperintendent of Gonapitiva Estate. When he arrived at his officethere were about one hundred labourers there “all of whom were shoutingout and complaining In giving evidence he said that, he understoodfrom Arunachalam that he and his men “ could not go beyond thepatna ’’ where they had met Sinhalese who threw stones at them and drovethem back.
This is not in accordance with the evidence given in Court* which wasto the effect that the main trouble occurred at Wellagiriya which wasreached, and that on the way back, in the patna, there was furthertrouble including the pelting of stones. I am satisfied there was amisunderstanding by Mr. Schofield of the nature of the complaint hereceived. It is not surprising that a mistake was made when a hundredlabourers were trying to ventilate their grievances at the same time.The information given to the Chief Clerk—this was before Mr. Schofieldwas summoned—is in keeping with the position taken up in Court.
1 have seen and heard the witnesses called by the petitioner and,after listening to the witnesses called on the other side, I am left with thefirm conviction that the former deposed, not to “ imaginary incidentsbut to incidents of which they were victims.
There were certain discrepancies in the evidence which I have con-sidered. When events move quickly and are viewed from differentangles by witnessses whose powers of observation differ, there are boundto be. On the other hand, in regard to the main features as distinctfrom details, there was considerable mutual corroboration by the wit-nesses of each other. I have also not lost sight of suggestions whichwere made on behalf of the respondent. The suggestion which proceededon the assumption that every witness, if he was at Wellagiriya, mustnecessarily have seen every other witness who claimed to have been thereis one which takes no account of the realities of the situation that existed.The suggestion that Mr. S. Eutnam’s activities were dictated by a desireto place on record complaints which might subsequently, in the eventof his brother’s defeat, support an election petition I reject utterly.
A further question was put in cross-examination which suggestedthat what had happened at Wellagiriya was that “ the Sinhalese claimed-precedence over the Tamils and went up ” the steps leading to the pollingstation. But this would not condone their conduct. On what ‘was theirclaim based ?
The arrogation to itself, by any class of voters, of priority over anyother class is completely devoid of legal sanction and the soonerMr. Banda’s supporters disabuse their minds of all pompous ideas ofprecedence the better for them and for him. However deserving hemay he of a seat in the State Council, that is most emphatically not theway to get him there.
The state of affairs that existed for a time at Maturata, another pollingstation, may best be described as aggressive obstruction.
HE ARNE J.—JRutnam v. M. Diitgiri Baitda.
149
Two of Air. Rutnam’s workers who were assisting the labourers fromHigh Forest estate were assaulted but not seriously. A oordon wasformed by the Sinhalese supporters of Air. Banda in order to preventMr. Butnam's supporters from going to the polls. They were encouragedand applauded by groups of Sinhalese standing around. Stones andsand were thrown and the usual type of filthy abuse filled the air.
A stampede ensued. Some of the Indian voters fled incontinently totheir lines, others took refuge in the surrounding tea bushes. Theconciliatory attitude adopted by Mr-. Aziz was productive of good.Active obstructionceased,thevoters in the tea emerged from their
hiding and a messagewassentto recall those who were in the lines.
Many of them returned. In the end a high percentage voted but thisdoes not make the conduct of the Sinhalese less iniquitous than it was.
In his evidence the Presiding Officer states that he personally saw noobstruction of Indian voters. But he could not have done so. Whenhe came out of the polling 'station “ at about noon ” the disturbance,consequent upon the arrival of Mr. Aziz, had abated. Even if he hadcome out earlier, assuming he made a mistake in' regard to the time,he did not leave the precincts of the polling station. The impressionhe received, at a distance of about 75 yards, of what was happening at“ the junction ”, where most of the trouble is alleged to have occurred,does not displace the evidence of those who were there. The evidence ofMr. Aziz and of the Assistant Presiding Officer was, in my opinion,certainly not false,andthePresiding Officer was not in a position to say
so and in fact didnotsayso.Samel Appuhamy and a person by the
name of John were named as the chief aggressors. Had they chosenthey could have rebutted the case of the petitioner. Their namesappeared on the respondent’s list of witnesses but they were not called.
An incident of another kind took place at the polling station. A youngIndian woman who was suspected of personation was arrested. Indianlabourers armed with sticks assembled in a large body and clamouredfor her release. Their demeanour caused alarm and the Sergeant incharge at Maturata Club telephoned for an armed guard. The conductof these Indians must be condemned. According to the evidence I haveheard the woman was properly under suspicion even if she was subse-quently acquitted. But, in considering this incident two points must beborne in mind. One is that the Indians had been thwarted, humiliatedand abused; no action had been taken against the miscreants who wereresponsible for what had occurred; the only arrest that was made was ofone of their own number. Ho doubt they felt they had reason to beaggrieved. The other is that the demonstration was spontaneous, itsprang from an unforeseen cause, it had no ulterior motive. In partic-ular no attempt was made to impede the flow of Sinhalese voters to thepolls. The Sinhalese, on the other hand, had organised themselves-to cause trouble. The obstruction of Indian voters' had been deliberatelyplanned in advance.
Before leaving Maturata I would ’refer to the cross-examination of thepetitioner’s witnesses who claimed to have been at this polling station.
It was suggested that there had been personation by Indians on a largescale, the only evidence is to the contrary; that Indians were blocking-
150
HE ARNE J.—Rutnam v. M. Dingiri Banda.
the entrance to the polling booth, there is not a scintilla of evidence tothis effect; that the Sinhalese voters held their hands in order to helpthemselves and not to obstruct the Indian voters, no responsible witnesshas said so; that the Indian woman who was arrested had been challengedon four separate occasions, there is no proof of this:that the Indians
tried to invade the booth to rescue the woman, the evidence I have hearddoes not even suggest it: that the Indians ‘ ‘ smashed ’ ’ the boutique ofone Henry, if this is so why was no evidence called to prove it ?
It seems to me to be quite futile that in an inquiry which can only bedecided by ascertained facts, attempts should be made to create anatmosphere by putting forward suggestions which are devoid of truth or,at the least, are unsupported by evidence.
Mr. Cartlidge, Assistant Superintendent of Police, was of the opinionthat the crowd at Handewelapitiya was very well behaved. Counselfor the respondent sought to take credit for this and Counsel for thepetitioner remarked that it was well behaved “ because it waspredominately Tamil.” Certainly on the arrival of Mr. Cartlidge theonly unruly members, so far as he was aware, were supporters of Mr.Banda. Five or six persons in green caps were disorganising the queuewhich the Police were attempting to form.
I am not satisfied that the conditions that prevailed at Handewela-pitiya were such aS would have prevented men of ordinary courage fromexercising their right to vote. At one time what was described as “acommotion ” occurred but the supporters of Mr. Putnam were indirectlyresponsible for it.
“ Identity cards ” had been sent to Hope estate for distributionamongst labourers who were supporting Mr. Putnam. A hundred ormore of these cards were still in the hands of kanganies on October 15 andit was decided to complete the distribution on the 16th (polling day) in theopen space close to the polling station.
Both the site and the time were ill-chosen. Voters streamed down anarrow flight of steps and debouched into the open space in front of thepolling station. It was the petitioner’s case that distribution of thecards was prevented by jostling on the part of partisans of the respondent.But I am not prepared in the circumstances that existed to ascribeblame to them. The task of collecting the labourers who had no“ identity cards ” and of supplying their needs could not have been aneasy one. Interference with the progress of others to the polling stationwas inevitable. Jostling in all probability took place but it must beremembered that the pressure exercised by a crowd is often involuntary.
If this were all that there was to say about Handewelapitiya it is notmuch. But there is more. Two ardent supporters of Mr. Banda.Ranawera and Ellangasekera, had come all the way from Rahantugodafor the express purpose of making themselves as obnoxious as possible,and they were quick to exploit the situation that the kanganies fromHope estate had created. They snatched and instigated others to snatchMr. Butnam's “ identity cards ” which were then destroyed. I am notclear that their conduct brings them within Article 53 and I am, therefore,not deciding whether they were agents of Mr. Banda. But agents or not,they behaved despicably. Ranawera had probably had too much to drink.
HEAJtNE J.—■Rutnam v. M. Dingiri Banda.
151
I he fact Chat Mr. Cartlidge did noC see any snatching of cards does notprove that it did not take place. Police officers are not Argus-eyed.Mr. Cartlidge was ’engaged at the polling station bringing under controlan awkward situation that had arisen there. PLis attention was occupied.
A report was made to the Superintendent of Hope estate on the follow-ing morning. The names of Eanawera and JSllangasekera were mentionedby the labourers and appeared in the list of respondent’s witnesses, butthey did not enter the witness box. Is there no significance in meresuggestion taking the place of available evidence ?
Many other incidents were described in the course of the proceedings.I am not- dealing with them chronologically. Some occurred beforeelection day.
Nanu-oya was the scene of comparatively minor disturbances onOctober 15, and on the 16, there was a fight near the railway bridge betweena party of Indian labourers and a party of Sinhalese in the course ofwhich a member of the former was stabbed. The police filed a plaintagainst one Sadiris, a disreputable loafer in the bazaar area, and he wasacquitted. I am not concerned with the result of that case. But it isrelevant in this inquiry to decide how the clash originated. There can beno doubt that the Sinhalese, who hurriedly left the scene on the approachof Mr. Bowler, were unprovoked aggressors at the expense of Abbotsfordlabourers who were on their way to vote for the petitioner. One resultwas that Indian labourers, not only from Abbotsford, but also Glassaugh.estate, did not record then* votes.
At Nuwara Eliya the canvassing that was being done by Mr. Eutnamaroused the annoyance of II a din Silva, as disreputable a character asSadiris, and but for the intervention of Piyasena, Mr. Eutnam may havebeen stabbed. An injury was inflicted on Piyasena and on convictionRadin Silva was sentenced to pay a fine of Rs. 75.
Hanguranketa was the stronghold of Mr. Banda. A knife was thrownon the table at which George Wilson sat in the local hotel with the words“ if you work against Mr. Banda, that is what we will give you ”.George Wilson is an Indian born in Kandy. He had been sent to Hangu-ranketa “ to work in secret ” but his mission had been discovered. Hisenthusiasm for the cause of Mr. Rutnam and his courage soon evaporatedand who is there to blame him? The next day, to use his own words,he took “to his heels in a mortal funk
At Hanguranketa is an estate which is managed on behalf of theproprietor by Mr. Bobo, a friend of Mr. Banda. Darmalingam, the HeadKangany, had worked for Mr. Rutnam at previous elections andMr. Rutnam had, therefore, addressed a registered letter to him solicitinghis support at the coming election.
The name of the kanganv’s correspondent on the envelope was seenby Mr. Bobo. “ At his request ’’ Darmalingam handed over the letter,no reply was sent and Mr. Rutnam received no support.
Darmalingam who was called by the respondent was not an inspiringfigure in the witness box. Quite clearly his sympathies were -withMr. Rutnam but he was determined to steer his course in the election bythe fixed star of self interest or, in other words, the will of his master.He admitted that “ if Mr. Bobo had not been his boss, he would have
162
H HA RNFi J.—Butnam v. M. Dingiri Banda.
refused to hand over the letter He also stated that on the last payday before the election Mr. Bobo had distributed green identity cards,the cards of Mr. Banda, to Indian as well as Sinhalese labourers. Nodoubt they understood for whom it was expected, or shall I say hopedthey would vote.
It was this estate that Munisamy, who had accompanied GeoTge Wilson,had the temerity to enter on the night of October 15 in the hope ofcanvassing the votes of labourers. He was taken by Darmalingam toMr. Bobo at his house. Mr. Banda was there. Mr. Bobo detainedMunisamy and had him sent to an Inspector who in turn sent him to theKorale. He was eventually- released on the payment, as it is ’alleged,of a sum of money. The Korale was not called by the respondent todeny this. Nor did Mr. Bobo appear. It was said that he had leftHanguranketa on holiday and could not be traced.
Munisamy, it is unnecessary to say, needed no encouragement fromGeorge Wilson to join him in the race for Nuwara Eliya the following day.The possibility of canvassing votes at Hanguranketa in the interests ofthe petitioner had been effectively stifled.
Mr. Beddewela’s arrangements to hold a meeting at Gonagama werefrustrated, the organisers were intimidated and one of them was ratherseriously assaulted. In the course of his evidence Mr. Banda made thesuggestion that Mr. Abeygunesekera, the member for Nuwara Eliyawho had resigned, had supported the candidature of Mr. Beddewelasolely for the purpose of helping Mr. Butnam by splitting the Sinhalesevote. Assuming this was or was thought to be the case, it provided amotive for the opposition by Mr. Banda’s supporters to Mr. Beddewela’smeeting. The entry made by the Araehchi in his diary was thatMr. Beddewela had arrived to hold a meeting and “was not allowed to do so”.All his perjury in the witness box could not explain that entry away.The Bev. Saranapala did not commend himself to me as a 'witness oftruth, while the evidence of Newton Wickremasinghe was clearly false.
I have referred to most of the evidence relating to general intimidationand I now pass on to consider the second charge.
The evidence is overwhelming that Dingiri Banda Samarakone, KiriBanda Samarakone, and E. U. B. Batnavake “ used force and violenceand threatened to use force and violence in order to compel or inducevoters to refrain from voting at the election’’. It is not necessary torefer to their individual activities. They are on record. Each mustbe taken to have intended the natural and probable consequences of thecombination of acts in which he joined. The consequences were, as theywere intended to be, complete frustration of the right of voters to gounhindered to the polls and there to vote for the candidate of their choice.
In his evidence Mr. Banda admitted that the two Samarakones andBatnayake were at Wellagiriya on polling day and that “there wasinterference with labourers on the score that they were attempting topersonate.” He explained that by “ interference ” he meant that thelabourers were “ admonished not to vote if they had no vote ”. Theywere told “those of you who have no vote, cannot vote here. If you goand vote we will see that you are prosecuted”.
HEARNE J.—Rutnam v. M. Dingiri Banda.
153
But D. B. Samarakone would not have such language attributedto him. According to him he merely cautioned Indian labourers,presumably in thebj own interests, to see that they had been dulyregistered as voters before proceeding to record their votes. “ If youhave votes ” he claims to have told them “ go forward and vote: if youare not registered, be careful”. I do not know whether his assumptionin Court of the role of gentle counsellor to Indian labourers was morefacetious or impertinent. I do not believe a word of his evidence.
Kiri Banda Samarakone’s evidence was that he had playfully removedArunaehalam’s rosette, that he was then struck on his back with a stickand tha’t he in turn slapped his assailant. That was all that happened.In his manner and hesitations, in his evasiveness and contradictions, heshowed quite clearly that he is a person with no regard for the truth.The one statement he made which I believe is that the account he gaveto the police when he was questioned was a tissue of falsehood. So washis evidence in Court.
E. U. B. Ratnayake was a pathetic figure. He walked into the witnessbox, raced through the story which he and Kiri Banda Samarakone hadconspired to tell and, when he was confronted with two pi'evious state-ments made by him to the police, collapsed. ‘‘They were lies” he fal-tered ‘‘but now I am speaking the truth”. To the police his defencehad been an alibi.
It is clear to my mind that D. B. Samarakone, K. B. Samarakone andE. U. B. Ratnayake were actively engaged in canvassing votes forMr. Banda and in generally promoting his interests. If there was no otherevidence in the case, and there is, I would accept the evidence ofMr. Gomis and of Arunachalam as being conclusive on this point.
But were these three rapscallions agents of Mr. Banda in the sensethat, in furthering his election, they were acting with his authority, expressor implied? Bid he ask them to work for him or alternatively did hehave knowledge that they were working for him and accept their work ?To use the language in a reported case ‘‘did he to some extent put him-self in their hands and make common cause with them for the purposeof promoting his election”?
The respondent stated that he asked them for their votes and alsoasked them to canvass the votes of their relatives. Limited canvassingof this nature would not of course give rise to a presumption of agency.He denied he was aware that they were working in his interests in anyother way if, indeed, they were. He made the claim that he selected ashis agents ‘‘only people well known” to him and those ‘‘who wouldcarry out instructions exactly”.
If this claim is, generally speaking, the truth he certainly made anexception in the case of Radin Silva. This reprobate was not well knownto him for he had merely met him ‘‘on the roadside” in Nuwara Eliya.It could hardly be said that a person who stabbed Piyasena and attemptedto stab Mr. Rutnam in the circumstances I have mentioned was one whowas likely to pay any regard to instructions. But it was to this casualacquaintance on the roadside that Mr. Banda admittedly entrusted the
164
TTRATWR J.—Rutnam v. M. Dingiri Banda.
work of canvassing. “I was aware” lie said “that Radin was notmerely voting for me but working to get me votes. I was content torely upon the support which he offered me”.t
B. Samarakone was not the street Arab that Radin Silva was. Heis the owner of a flourishing boutique at Maturata and admittedly aman of considerable local influence. Brother of the Korale of theadjoining village, he is the wholesale distributor of rice in the area andChairman of the Village Committee. How closely he had been associatedwith Mr. Banda is shown by the fact that “he was one of the signatoriesof a petition inviting the respondent to stand for the Nuwara Eliyaseat” and that at the election he proposed him as a candidate. Surelyif Mr. Banda was prepared to accept the help of Radin Silva he wouldhave solicited the support of a man of X). B. Samarakone’s standing,especially as he had so unmistakably identified himself with Els cause.
It is against this background of antecedent probability that theevidence must be considered.
The evidence of Arunaehalam was that K. B. Samarakone, brother ofID. B. Samarakone, handed green identity cards, the cards of Mr. Banda,to the tea maker at Gonapitiya for distribution amongst the labourers.The tea maker was not called by the petitioner who may, however, havethought it was unnecessary to do so, as Arunaehalam’s evidence on thispoint was not challenged in cross examination. The respondent’sreply to the evidence was far from being unambiguous. At first he saidthat he was certain “ identity cards ” had not been issued from Hisoffice with the names of Gonapitiya labourers marked on them and,later, that “they were in the Maturata bundle and the Schoolmaster(Wiekremasinghe) must have given them to someone to distribute”.But Wiekremasinghe would not admit to having handled Gonapitiyacards. The cards which were delivered to the tea maker were, in myopinion, sent to him by Mr. Banda or with his knowledge and consent.
Reginald Abeygunesekera gave evidence that he had seen D. B.Samarakone canvassing alone and in the company of Mr. Banda andthat K. B. Samarakone “and his people had canvassed almost all thevoters in the village”. It is absurd to suggest that Reginald Abeygune-sekera is unworthy of credit solely because he is the nephew of the ex-member for Nuwara Eliya. The latter’s name figured prominently inthe respondent’s case—as a red herring!
“ Canvassing affords premises from w-hich a Judge, discharging thefunctions of a Jury, may conclude that agency is established”. On afull consideration of the evidence relative to canvassing as well as of therest of the evidence including the distribution of “identity cards” andleaflets, I hold that in the case of D. B. Samarakone and X. B. Samara-kone agency has been established.
Putting the matter at its lowest the respondent was aware of theiractivities and adopted them as his own. But, in addition to this,difficult as it is of direct proof, there is a very high degree of probabilitythat these two brothers were acting with the express authority of therespondent. E. U. B. Ratnayake, a relation of the Samarakones, waspossibly a volunteer. Mr. Banda may or may not have known of thekeen interest he was taking in the election on his behalf.
HE AJRNE J.—Rutnam v. M. Dingiri Banda.
165
On tne ground that offences of undue influence were committed bytwo agents of the respondent in connection with the election, it must bedeclared to be void. »
I am far from thinking that these offences were committed with.Mr. Banda's sanction or connivance. Z am even prepared to hold thatthey were committed contrary to his orders. He was his own “ electionagent ” and was guilty of no election offence. But I cannot hold thathe took all reasonable means for preventing the commission of corruptand illegal practices. To appoint a person of the obviously aggressivetype of .Kiri Banda Samarakone and to leave him uncontrolled is toinvite trouble. I say nothing about Radio Silva. On the subject ofthe agents he employed Mr. Banda was very reticent. Nor do I thinkthe offences were of a trivial, unimportant and limited character. AtWellagiriya itself the undue influence practised was of a most aggravatednature.
It may seem unfortunate that a candidate is liable to be penalised forthe acts of his agents, even where the agents disobey orders, but asBowen, J. pointed out in Wigan1, ‘‘it is the purest justice and commonsense Mellor, J. in Barnstaple2, said “ He (the candidate) cannottake the benefit of the services of the individual and repudiate them atthe same time ”.
In the present ease, however, not only were the respondent’s agentsbut, in a sense, the whole electorate was on trial, the latter on a charge ofgeneral intimidation.
I have been asked to consider certain statistics and to hold that,notwithstanding the intimidation that took place, the result of theelection could not have been affected by it. In the North, Durham Case3,Mr. Baron Bramwell said “ Where it (intimidation) is of such a generalcharacter that the result may havebeen affected,in myjudgment it is
no part of the duty of a Judge toenter into a kind ofscrutiny tosee
whether possibly, or probably even, or as a matter of conclusion uponthe evidence, if that intimidation had not existed, the result would havebeen different. What the Judge hasto do in thatcase isto say thatthe
burden of proof is cast upon theconstituencywhoseconduct isin-
criminated, and unless it can be shown that the gross amount of intimidationcould not possibly have affected the result of the election it ought to bedeclared void ”.
I hold that there was gross intimidation, that it was widespread in theareas where Mr. Rutnam had good reason to count upon heavy votingin his favour, and that it may well have prevented the majority of theelectors from returning the candidate whom they preferred. On thisground too the election must be avoided.
I was invited, in the event of the petitioner succeeding, to make aspecific order in regard to the costs payable by the respondent. I fixthem at Rs. 3,500.
Election declared void.
{1881) 4 O'M <& H, 11.2 {1874) 2 O'M db H, 105.
{1874) 2 O'M & 11, at page 157.