137-NLR-NLR-V-50-SAIMON-SILVE-Petitioner-and-R.-S.-PELPOLA-Respondent.pdf
WINDHAM J.—Saimon Silva v. R. S. Pelpola
653
1948Present : Windham J.
SAIMON SILVA, Petitioner, and R. S. PELPOLA, Respondent
Ik the Matter of the By-Election fob the GampolaElectoral District holder ok May 28, 1948
Election Petition No. 2 of 1948
Election petition—Evidence—Meaning of Sinhalese word—Judicial notice of
dictionary—Literature—Evidence Ordinance—Section 57.
The word “ literature ” in section 57 of the Evidence Ordinance mustbe interpreted ejusdem generis with history, science and art, namely, inthe sense of creative works of poetry or prose. The court cannot thereforeunder this section take judicial notice of the correctness of the meaningof a word as given in a Sinhalese-English dictionary.
Where the meaning of a Sinhalese word is in issue the proper course isto prove the meaning of the word through expert witnesses.
F
JL-iLECTION petition to declare void the return of the respondent asmember for the Gampola Electoral District.
U.A. Jay asunder a, with C. S. Barr Kurrutrakulasinghe, A. I. Raja-singham and K. G. de Silva, for the petitioner.
S. Nadesan, with B. H. Aluwihare, G. E. Chitty and B. 8. C. Ratwatte,for the respondent.
Cur. adv. vult.
November 25, 1948. Windham J.—
This is a petition to declare void the return of the respondent as memberfor the Gampola Electoral District, at a by-election held on May 28, 1948.Five candidates contested the by-election, which resulted in the returnof the respondent by a majority of 775 over his nearest rival, Mr. R. S. S.Gunawardena. It was the unseating of Mr. Gunawardena by this courton March 12, 1948, upon an election petition presented by the presentrespondent, which necessitated the by-election. The petitioner is avoter in the Gampola electorate.
Three charges were framed in support of the petition, namely, undueinfluence, bribery, and the publication of false statements. Of these, thebribery charge was dropped by learned counsel for 'the petitioner at theopening of the case, and that of undue influence was dropped, withoutevidence being led in support of it, at the close of the petitioner’s case onthe remaining charge. Those two charges having been accordinglystruck out, the case was tried solely on the remaining charge, namely, thepublication of false statements of fact in relation to the personal
24—L.
1J. K. A 91233-1,044 (9/40)
554
WINDHAM J.—Sainton SUva v. R. S. Pelpola
character or conduct of the defeated candidate, Mr. Gunawardena.With regard to this charge, the respondent narrowed the field of inquirystill further by admitting in court both personally and through hiscounsel, during the opening day’s hearing, that the two pamphlets whichform the subject-matter of this charge, exhibits PI and P2, were printedon his personal instructions and were distributed among the electorate,during the period of his by-election campaign, not by himself personallybut by all the persons alleged in the particulars to have distributed themas his agents, all of whom he admitted to have been in fact his agents.Accordingly the sole question for decision is whether the statements inthe pamphlets PI or P2 set out in the particulars of the charge were falsestatements in relation to the personal character or conduct of Mr. Guna-wardena, and whether they were made or published for the purpose ofaffecting the latter’s return.
Before examining the contents of the pamphlets PI and P2, it will beconvenient to consider briefly the circumstances which brought about thisby-election in the Gampola Electoral District. They were as follows :—On September 18, 1947, polling took place in the general election for theGampola seat and Mr. Gunawardena, the U. N. P. candidate, won theseat from Mr. Pelpola, the present respondent, in a straight fight by387 votes. The present respondent thereupon brought an electionpetition to unseat him on the grounds of (a) general intimidation withinthe electoral area, whereby the majority of electors were or may havebeen prevented from electing the candidate whom they preferred;(b) undue influence “ committed in connection with the said election bythe respondent or by his agents The particulars of these chargesmade it clear that the acts of undue influence alleged were the sameincidents as constituted the acts of general intimidation, but consideredas acts committed against individuals by Mr. Gunawardena or by otherindividuals alleged to be his agents. On Mr. Pelpola’s leadingoverwhelming evidence on the charge of general intimidation, whereinit was not alleged and was not necessary to allege that the intimidatorswere the agents of Mr. Gunawardena, Mr. Gunawardena intimated incourt, through his counsel, his decision not to contest that charge. Counselfor Mr. Pelpola thereupon stated that he did not propose to lead furtherevidence on the charge of general intimidation, and that he was willingthat the other charge, that of undue influence, should be struck out,having examined the evidence. This was done accordingly, and judgmentof this court was delivered, declaring the election of Mr. Gunawardena voidon the ground of general intimidation. That judgment is reported in49 N. L. R. 207. The sequel was the by-election of May, 1948, which isthe subject of the present petition, wherein the positions were reversed,and Mr. Pelpola, the respondent, won the seat from Mr. Gunawardenaby a majority of 775 votes.
The two pamphlets of the respondent, PI and P2, which contain thealleged false statements of fact in relation to the personal character orconduct of Mr. Gunawardena, were in the Sinhalese language. PI wasprinted during the last week of March and distributed in the electorateduring the first week of April, 1948; P2 was printed on May 12, anddistributed about a week before polling day (May 28). English
WINDHAM J.—Salmon Silva v. It. S. PelpoTa
555
translations of these pamphlets have been prepared and produced by" experts ” called by the petitioner and the respondent, respectively, andthis case has revolved almost exclusively around the question what isthe true meaning of the relevant passages in these pamphlets, andwhether they constitute the false statements of fact alleged in theparticulars of the charge. I will now set out the contents of PI and P2in their entirety, as rendered into English in the translations preparedfor the petitioner by his witness, Mr. Wickrama Aratchi, a sworntranslator concerning whose evidence I shall comment later. Hemodified these translations in some material respects when he testifiedfrom the box, but I here set them out as originally prepared by him.The passages which I have italicized in the following translations are thepassages set out in the particulars of the charge as constituting the falsestatements of fact in relation to the personal character or conduct ofMr. Gunawardena. Mr. Wickrama Aratchi translates PI and P2 asfollows :—
Pamphlet PI“ GAMPOLA SEAT“ The Oampola Parliamentary By-Election“ Ladies /Gentlemen,
“ In the general election held in the month of September, 1947,Mr. R. S. S. Gunawardena on behalf of the United National Party andI as an Independent candidate entered the contest.
“It was admitted without dispute by the Supreme Court Judge that I whohad the right for the seat was defeated on account of the fact that the peoplewere deprived of the opportunity of exercising in a just and proper mannertheir free and valuable vote as a result of diverse acts committed by thestaff of persons authorised by the opposing candidate.
“ The member who had captured the seat, after depriving by a multiplicityof frauds the owner of his rights, on the day the case urns taken up forhearing {at the very commencement) realised the unfortunate judgmentthat he would get, admitted on oath before the judge as true the wrongscommitted by his.agents, agreed to the cancellation of his election to theseat captured in the unjust manner (as pointed out in the petition presentedby me), and to pay Rs. 2,000 as costs of the case (compensation) andstating that he was unwilling to answer the charges mentioned in thepetition, prayed for pardon. I also having agreed out of Maitri(Compassion) consented thereto ; extended my sympathy.
“ Had I hardened my heart as a stone not to extend my pardon toa humbled opponent who admitted in a great hall of judgment the wrongcommitted by him, both the staff of judges and the general public wouldhave equally admitted and laughed at me as a man with no kindnessand as one who loads an empty and useless life badly disposed towardsthe public.
556
WINDHAM J.—Sainnon Silva v. R. S. Pe&pola
“Voting Gentlemen /Ladies,
While kindly reminding you, the residents of the Gampola electorate,that I shall again come forward to contest the Gampola By-Electionfixed to take place somewhere in the month of May or June, 1948,I wish most kindly to request you to extend to me on this occasionalso just as on the last occasion your sincere and ungrudging support.
Yours in kindness,
(Sgd.) Riohabd Stanley Pelpola,Gampola, March 22, 1948.Justice of the Peace ”.
“ Lanka Pradeepa, Kandy ”
Pamphlet P2“ By-Election contest j or the Gampola Seat
“ As at the contest during the last general election, the winning ofthe seat by Mr. Gunawardena, who contested the seat, and the defeatof me the other contestant, did not occur free from such illegal actsas the exercise of undue influence, &c., in obtaining votes, the by-election has come into being as a result of the permission just securedby means of the case filed before the Supreme Court. I shall neverforget the confidence reposed in me and the honour done me on thatoccasion by the voters by easting over ten thousand votes in myfavour.
“ It has been brought to my notice that some persons as those whowish to eat the Kabaragoya (the spotted poisonous lizard) call it‘ an iguana ’, being displeased that the case without being pressedthrough was interrupted and brought to a conclusion and thereby theopponent was given a further chance, are attempting to mislead thevoters who are unaware of the facts as they are. ‘ It is an act ofwisdom on the part of the listener to understand intelligently whateverthe speaker may say ’. I have no such obstinate intention as to rejectthe counsel of lawyers appearing in the cases, my only intention beingto get the seat or the membership declared void. I have no desire forreceiving any other present or honour, nor have I any evil purposeof taking revenge. This is our purpose.
“ It was by depriving the owner of his rights and through the trickery andthievish devices of his agents that Mr. Gunawardena on that occasionobtained the seat. All that was done not for their benefit but with the firmdetermination of making the side they took achieve victory. But insteadof proving the innocence of oneself and others he shifted all the accusationson his agents, declared that he was unwilling to answer the facts mentionedin the petition and prayed for pardon. Of these two matters 1 invite youthe residents of the Gampola electorate to sift and find out whose is thegreater wrong and in the present by-election contest to decide by intelligentinquiry who should be given the vote as well as assistance.
WINDHAM J.—Saimon Silva v. It. S. Pelpola
557
“ Voting Gentlemen/Ladies,
In this by-election contest fixed for the 28th day of May fivegentlemen including myself have come forward. While offering mysincere and kind thanks to you who on the last occasion came forwardof your own accord and fully discharged your duty by assisting me andgiving me your votes, I most kindly remind you to render me yourassistance to enable me on this occasion also, to achieve victory inthis five cornered fight.
Yours in kindness,
(Sgd.) Richard Stanley Pelpola,Gampola, May 12, 1948.Justice of the Peace. ”
“ Do not forget that this time the Symbol is not the umbrella butHouse. ”
“ Lanka Pradeepa, Kandy ”
Such are the translations prepared by the petitioner’s witnessMr. Wickrema Axatchi, who was examined and cross-examined uponthem. Now at this stage I would advert to two rulings which I gaveduring the course of the trial concerning (a) judicial notice of dictionariesand {b) the cross-examination of official interpreters of this court, inconnection with the correct translation into English of the pamphlets PIand P2. In the course of his cross-examination of Mr. Karunatillake,who was called by the respondent to produce his own translations of PIand P2, Mr. Jayasundera for the petitioner quite properly showed to thewitness copies of Garter’s Sinhalese-English Dictionary of 1924 andCarter’s English-Sinhalese Dictionary of 1936, in an endeavour to makehim modify his views with regard to the English equivalent of a certainSinhalese word appearing in both pamphlets. At the close of the re-spondent’s case, however, Mr. Jayasundera, who had not produced thesedictionaries as exhibits, submitted that this court ought to take judicialnotice of the correctness of their contents. He relied on the generalwords at the end of section 57 of the Evidence Ordinance which, followingupon the list of particular matters set out in that section of which thecourt will take judicial notice, provide that " in all these cases, and alsoon all matters of public history, literature, science, or art, the court mayresort for its aid to appropriate books or documents of reference ”. Hecontends that the court should take judicial notice of such dictionariesas concerning a “ matter of literature ” within the above provision,arguing that a dictionary is a “ book on literature ”,
But in my view this contention cannot be acceded to. In the firstplace, the word “ literature ” in its above context must be interpretedeju-sdem generis with history, science and art, namely in the sense ofcreative works of poetry or prose. In the second place, it is to be notedthat sub-section (9) of section 57 requires the court to take judicial noticeof “ the meaning of English words ”. Had the court been required alsoto take judicial notice of the meaning of Sinhalese words, a similarprovision to that effect would be expected to be found in the section, as1*J. N. A 91233 (9/49)
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WrNrrm AM J.—Salmon Silva o. R. S. jPeZ-pola
no doubt it would be found if the Sinhalese language were not merelythe language of the majority of the inhabitants of this island, but werealso (as it may yet become) what the English language now is, the officiallanguage or one of the official languages of the Island. Thirdly, Mr.Jayasundera argues, rightly, that section 57 is not exhaustive of thematters of which the court may take judicial notice. That is true ; butjudicial notice will not be taken of anything not falling within thecategories set out in section 57 unless it is a matter which is not, on somereasonably arguable ground, in dispute. If the matter is so in issue,then it must be proved by evidence, and no question of judicial noticewill arise. Eor judicial notice is taken only of matters which are toonotorious to require proof. So in the present case, a crucial issue isthe exact meaning or meanings of certain Sinhalese words (the word“ niyogitha ” in particular) appearing in the two pamphlets. Thelanguage of this court being English, that meaning or those meaningswould normally be provided by the translations prepared by the officialof this court whose duty it is to prepare them. But since the exact shadeof meaning is a vital issue, I have ruled against the respondent (thisbeing the second of the two rulings now being considered) that it wouldbe undesirable in the interests of propriety for a court official to be calledby one side or the other to testify on the exact meaning and thereby tosubject himself to cross-examination (involving the possibility of alle-gations of bias) by the other side. That being so, the proper course, andthe one which was eventually adopted in this case, is to prove the exactor popularly understood meaning of the Sinhalese phrases throughwitnesses called to testify as experts on the point, in the sense that theyare familiar with the English and Sinhalese languages, either from anacademic standpoint or as being familiar with the meanings popularlyattached to Sinhalese words by the “ man in the street ”.
So far as concerns Sinhalese-English or English-Sinhalese dictionaries,while there is no objection to the expert witnesses being asked to givetheir views on the accuracy of their contents, I hold that, for the reasonsalready given, judicial notice will not be taken of them in respect of amatter in issue ; that is to say, this court will not accept their contentsas establishing their own truth. In particular it will not on a contro-versial issue accept as a fact, without sworn evidence on the point, thatthe English equivalent or equivalents given in a Sinhalese-Englishdictionary for a Sinhalese word, or the Sinhalese equivalent or equivalentsgiven in an English-Sinhalese dictionary for an English word, are theprecise or the only respective equivalents.
I will now turn to consider the evidence of the three witnesses whowere called to give their views on the accuracy of Mr. Wickrema Aratchi’sEnglish translations of the Sinhalese pamphlets Pi and P2. Therespondent’s witness Mr. Karunatillako testified in this connection andalso produced his own translations of those pamphlets, differing fromthose of Mr. Wickrema Aratchi in a number of important respectsfavourable to the respondent. But I will first consider the evidence ofthe petitioner’s own experts, namely Mr. Wickrema Aratchi himself andDr. G. P. Malalasekera, and that of Mr. Karunatillake for the respondent,upon the translations submitted by Mr. Wickrema Aratchi.
WINDHAM J.—Saimon SUva v. R. S. ReVpola
660
I may say at this stage that I found no reason to doubt the honestyand good faith of any of these three witnesses. With regard to theirqualifications to testify on the meaning of the Sinhalese words andexpressions used in PI and P2, I think that each one of them brought tothe inquiry his own peculiar contribution of special knowledge. Mr.Wickrema Aratchi is a sworn translator, and a journalist and author,being for ten years the editor of Dinamina, the Sinhalese Daily News.Dr. Malalasekera’s academic qualifications are very high ; he has beenat one time Dean of the Faculty of Oriental Studies at the University ofCeylon ; from 1939 to 1944 he was professor of Sanskrit, Pali and Sinha-lese at the University ; he is also in the course, of editing a Sinhalesedictionary. He agrees, however, that the Sinhalese language is a rapidlydeveloping one, particularly in the field of politics, in which words areconstantly being improvised and the precise meaning of others is not yetstabilized, and he admits that he does not concern himself with politics.The qualifications of Mr. Karunatillake, on the other hand, are practicalrather than academic. He is a young man aged 25 ; he was editor of theweekly Janashalctiya for some 4 or 5 years, and for the last six monthshe has been assistant editor of the daily newspaper Lankadeepa. In thecourse of his journalistic work he has attended and reported a numberof meetings, and is conversant with the modem Sinhalese language as itis spoken and written. It has been objected by counsel for the petitionerthat he cannot be considered as an expert at all, on the ground of hisyouth and lack of long experience in journalism. But it seems to me'that Mr. Karunatillake, in that he is a modem-minded and go-aheadyoung journalist, in constant touch with the language of the populace,supplies just that element which Dr. Malalasekera lacks. Por in arrivingat the meaning of the pamphlets PI and P2 we must ascertain theirmeaning when read as a whole, and that of the particular expressionscontained in them, as they would be understood by the average memberof a Sinhalese electorate today.
I turn, then, to the evidence of Mr. Wickrema Aratchi, Dr. Malalasekeraand Mr. Karunatilleka, regarding the first-named’s translations of PIand P2, and I will start with PI. The first important phrase in PI onwhich they gave their observations occurs in the second paragraph, beingthe phrase translated as “ staff of persons authorized by the opposingcandidate”, the Sinhalese words being “ niyogitha mandalia ”. I amsatisfied from the evidence of Mr. Wickrema Aratchi and Dr. MalalasekeraC(though my conclusions on the point will be subject to what I shall haveto say on the evidence of Mr. Karunatillake) that Mr. Wickrema Aratchi’stranslation of this phrase is strictly correct, and in particular that theSinhalese word “ niyogitha ” strictly means a person authorized, or anagent or deputy or delegate. This same word is the one which has beentranslated as “ agent ” in the other parts of the pamphlets PI and P2where that word occurs in Mr. Wickrema Aratchi’s translations, and myobservations apply there too, namely that the word strictly imports theidea of authorization. At the same time it was made clear byMr. Wickrema Aratchi, nor was his evidence on the point challenged orcontradicted, that in the second paragraph of PI the word translated as“ authorized ” merely means “ appointed ”, i.e., appointed for somepurpose or other, and does not mean or imply that the “ staff of persons ”
660
WINDHAM J.-—Salmon Silva v. R. S. Pelpola
were authorised by the opposing candidate (Mr. Gfunawardena) to do“ the diverse acts committed ” by them, namely the acts of intimidation■which resulted in Mr. Gunawardena losing his seat in the earlier petition.Against the evidence of Mr. Wickrema Aratchi and Dr. Malalasekera that“niyogitha” means “agent” or “person appointed”, we have theevidence of Mr. Karunatillake. He states that the word “ niyogitha ”means “ enthusiastic supporter ” in modern Sinhalese usage, and thatit does not necessarily import the idea of agency or authorization. Hestates that in the course of his journalistic work he himself uses the word“ niyogitha ” to express the idea of an enthusiastic supporter. NowHr. Malalasekera, while he stated that the word “ niyogitha ” importsthe idea of agency, admitted frankly, when cross-examined on its meaning,that he “ cannot say as to how this is popularly understood among themasses and politicians ”. And Mr. Wickrema Aratchi, though he madeno such admission, did at one point in his evidence (though it is fair tosay that his attention was not concentrated at the moment on the word)translate “ niyogitha ” as “ followers ”, In the light of this conflictingevidence I am unable to say that the word “ niyogitha ”, though in aliteracy connotation it may mean “ agent ”, would not, to an averageSinhalese voter reading it in an election pamphlet, convey the idea of anenthusiastic supporter without necessarily imputing that such supporterwas the agent of the person whose cause he was supporting. There is atleast a substantial doubt on the point, and the benefit of that doubt mustbe given to the respondent, against whom the petitioner is required toprove his case beyond a reasonable doubt, with the result that I will giveto the term “ niyogitha ”, wherever it occurs in the pamphlets PI and P2,the meaning of “ enthusiastic supporter ”, which is the meaning morefavourable to the respondent.
The next phrase in Mr. Wickrema Aratchi’s translation of PI whichwas the subject of any vital difference of opinion among the experts isthe phrase in its third paragraph which he has translated as “ by amultiplicity of frauds ”, a phrase which in its context, if the translationis correct, certainly imputes to Mr. Gunawardena personal complicityin the acts of intimidation which resulted in his forfeiting his seat in theearlier election petition. But this translation too must be modified inthe light of the evidence upon it. To begin with, Mr. Wickrema Aratchihimself admitted in evidence, what indeed is patent from a perusal ofthe Sinhalese original, that the phrase has been enclosed in brackets andappears at the very beginning of the paragraph. But, what is moreimportant, both Mr. Wickrema Aratchi and Dr. Malalasekera, thepetitioner’s own •witnesses, state that, while they think this phrase morecorrectly means “ by means of numerous tricks ” it could equally wellmean “ on account of numerous tricks ”. The difference is vital, for“ by means of ” would impute the complicity of Mr. Gunawardena in thetricks, while “ on account of ” would merely imply that the numeroustricks had resulted, as indeed they did result, in his winning the seat,without implying that he was a party to them, and the statement wouldthus not be a false one at all. Mr. Karunatillake goes further, andtranslates the words as “ tricks being numerous ”. This is, of course,a clumsy translation because a literal one, but like the Latin ablative
W.LN-L/H1AM J.— Saimon Silva v. R. S. Pelpola
561
absolute construction to which it seems to be akin, its meaning approxi-mates to “ on account of numerous tricks ” rather than to “ by meansof numerous tricks The evidence of the three witnesses on theimplications of the brackets round this phrase was inconclusive. I wouldagain give to the respondent the benefit of the doubt, and translate thephrase as “ on account of numerous tricks ” or more idiomatically “ as aresult of numerous tricks ”, with the consequence that the passage inwhich it occurs, which will now read “ after depriving the owner of hisright as a result of numerous tricks ”, ceases to be a false statement offact at all, since the acts of intimidation committed by irresponsiblesupporters of Mr. Gunawardena did in fact result in the latter’s deprivingMr. Pelpola of the Gampola seat which Mr. Pelpola would otherwisehave won.
Further modifications which I would make in Mr. Wickrema Aratchi’stranslation of PI are the following. I am concerned only with thosewhich in my view have a bearing on the question whether PI containsthe false statements of fact alleged in the particulars. First, on Mr.Wickrema Aratchi’s own admission in the box, the words ” as pointed outin the petition ” appearing in the third paragraph of PI should read “ asrequested in the petition ” ; the word “ requested ” thus becomes a pastparticiple agreeing with the word “ cancellation ”, which cancellationMr. Gunawardena is stated to have agreed to ; with the result that thepassage in which these words occur does not constitute a false statement,since Mr. Gunawardena did in fact agree to the cancellation of his electionto the Gampola seat. Secondly, the word “ humbled ” in the fourthparagraph of PI should read “ humble ”. The alteration is favouredboth by I>r. Malalasekera and by Mr. Karunatilleka. It is not of greatsignificance, for neither being humbled nor being humble is in itself afault of character or conduct. But it must be read together with thethird alteration, which is of considerable importance. This concernsthe words “ by him ” which in Mr. Wickrema Aratchi’s translation areinserted after the words “ wrong committed ” in the fourth paragraph.Mr. Wickrema Aratchi himself and the other two witnesses all agree thatthe words “ by him ” do not appear in the Sinhalese original of PI. Thewords were inserted by Mr. Wickrema Aratchi because he thought thata person cannot be said to admit a wrong unless that wrong has beencommitted by himself. But that is not so. A person can properlybe said to admit a wrong committed by somebody else, if the admissionaffects himself adversely in some way, as in the present case did theadmission by Mr. Gunawardena of the wrong committed by his misguidedsupporters. Reading the whole passage as altered, which now becomes“ a humble opponent who admitted in a great hall of judgment the wrongcommitted ”, I fail to find that it constitutes a false statement of factat all. For Mr. Gunawardena did in fact admit in court that a wrong hadbeen committed, namely, that his over-enthusiastic supporters hadindulged in acts of general intimidation.
Regarding the remaining alterations in the wording of Mr. WickremaAratchi’s translation of PI which were suggested on behalf of the respon-dent in cross-examination and by Mr. Karunatilleka in his evidence,I find, on considering all the evidence, no reason for their being made.
562
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Subject, therefore, to the alterations with which I have already dealt,his translation of PI may stand. In their altered form, however, I cannotfind in any of the particularized passages of PI any false statementsof fact in relation to the personal character or conduct of Mr.Gunawardena. I have dealt already with most of the alleged falsestatements. The only remaining passage which, after the substitutionof “ enthusiastic supporters ” for “ agents ”, could still be argued to bea false statement is the one in the third paragraph, which reads “ andstating that he was unwilling to answer the charges mentioned on thepetition, prayed for pardon Now it is true that Mr. Gunawardenadid not expressly state that he was unwilling to answer the charges in thepetition, that is to say the remaining charge of undue influence by himselfor his agents. But even if he did not make such a declaration, and thuseven if the statement in PI is accordingly an inaccurate one, it cannotbe said to be a false statement in relation to his conduct; for by decidingnot to contest the first charge he was in effect intimating that he wasunwilling to answer the remaining charge,—unwilling because it hadbecome unnecessary. Nor does this statement in PI impute anythingagainst his character. His unwillingness to answer this charge does notimply that he knew himself to be guilty of it ; it was at least equallylikely fed have been actuated by a desire not to waste further time ormoney ; since even if the second charge was decided in his favour, hewas bound to lose his seat owing to the overwhelming evidence of generalintimidation on the first charge. It was therefore the act of a sensibleman to decide not to fight the second charge, and this passage in PIcannot be said to imply that it was the act of a coward, as has beensuggested for the petitioner. With regard to the statement that Mr.Gunawardena “ prayed for pardon ”, this is not a false statement at all,for in his own evidence he states that after the case was concluded heexpressed hia regrets to Mr. Pelpola for what had happened. Thedifference between expressing one’s regrets and praying for pardonis one of degree only, and is insufficient to make the statement in PIinto a false one ; nor does praying for pardon necessarily, or in thisparticular context, imply admission by Mr. Gunawardena that he himselfhad done a wrongful act. A man can crave pardon or apologize notonly for his own faults, but also for the acts of other persons who haveespoused his cause or associated themselves with him,—as when a manout of politeness says—“ I must apologize for my friend’s behaviour ”although he is in no way responsible for that behaviour.
So much for the pamphlet PI. With regard to P2, Dr. Malalasekerasuggested certain modifications of Mr. Wickrema Aratchi’s translationof it, and these I accept. Substituting again “ enthusiastic supporters ”for “ agents ” in the text, the first and third sentences in the thirdparagraph of P2 will now read :—“ It was a consequence of the tricksand dishonest efforts of his enthusiastic supporters that Mr. Gunawardenaobtained the seat, having made the owner not the owner ….But instead of proving his own and their innocence, having placed onthe head of his supporters all the charges, and stating that he was un-willing to meet the matters mentioned in the petition, he begged forpardon ”. With these modifications, the passages from P2 which are set
WINDHAM J.—iSalmon Silva v. JR. S. JPelpola
663
out in the particulars, namely the entire third paragraph, disclose, in myview, no false statements relating to Mr. Gunawardena’s character orconduct. The implications of this paragraph are largely the same as insimilar passages in Pi, and with these I have already dealt. In so far asthe paragraph alleges that Mr. Gunawardena won the seat in consequenceof the wrongful acts of his supporters, it is not a false statement. Andin so far as it alleges that he declared himself unwilling to answer thematters mentioned in the petition, I have already dealt with this pointin discussing PI.
Having arrived at this decision on the amended text of Mr. WickremaAratehi’s translations of PI and P2, I find it unnecessary to considerthe translations put in on behalf of the respondent, since they are evenmore favourable to his case than the amended ones with which I havedealt.
Up to now I have considered these passages, in the main, analyticallyand phrase by phrase. But the general impression conveyed by thepamphlets PI and P2 when read as a whole does not bring me to anydifferent conclusion. It seems to me that their general effect andintention is not to vilify Mr. Gunawardena or to accuse him of lettingdown his side ”, but rather to justify to the electorate the action ofMr. Pelpola in agreeing not to press the second charge against Mr. Guna-wardena. And in so far as any of the statements might be thought toimpute anything against Mr. Gunawardena, they are not false statements.With regard to the object of the publication of the pamphlets, althoughof course the meaning of Pi or P2 is unaffected by any motive or objectof its author that is not expressed therein, I would state that I entirelyaccept the evidence of the respondent when he said that he had issuedPI and P2 in order to present to the electors the reasons why he hadagreed not to press the second charge, because there had been rumoursagainst him that he had settled with his opponent by accepting a bribe.
Subject to this, I have refrained from reviewing the evidence whichwas adduced to show (a) how Mr. Gunawardena himself interpreted andreacted to the pamphlets PI and P2 when he read them during theelection campaign, and (b) what the respondent intended to say orconvey in these pamphlets; for these matters are irrelevant to thequestion what the pamphlets in fact do state, and the meaning that thesestatements would convey to an average elector, and to the questionwhether such of their statements as have been particularized compriseany false statements of fact in relation to the character or conduct ofMr. Gunawardena. That is the charge under section 58 (1) (d) of theCeylon (Parliamentary E ections) Order in Council, 1946. With regardto the remaining requirements of section 58 (1) (d), namely that thestatements shall have been made for the purpose of affecting the returnof any candidate, although it now becomes unnecessary to decide thatpoint, I do find on the evidence that the statements in both PI and P2were made for that purpose. The last sentence in the particularizedportion of P2 makes this patently clear, and with regard to PI, I amsatisfied that the respondent, when he published it, must have beenaware that Mr. Gunawardena was about to contest the seat, althoughthe latter’s nomination had not yet been sent in, and that accordingly the
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JAYETIXEKE S.P.J.—-Eemando v. Jayasuriya
statements in PI -were designed to enhance the popularity of therespondent in the electorate and thereby to affect adversely Mr. Guna-wardena’s chances of beating him in the by-election. The point*however, becomes as I say of no relevance.
For the reasons I have given I hold that the petitioner has failed toprove his charge under section 68 (1) (d) beyond a reasonable doubt,with the result that I declare that the respondent, Mr. R. S. Pelpola,was duly elected as member for the Gampola Electoral District. Thepetition is dismissed with costs, which I fix at the sum of Rs. 4,000.
Petition dismissed.