Sarath Muttetuwegama V Lionel Gunasekera and Others

028-SLLR-SLLR-1982-1-Sarath-Muttetuwegama-V-Lionel-Gunasekera-and-Others.pdf


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Sri Lanka Law Reports
/1982J 1 S.L.R
SUPREME COURTSarath MuttetuwegamaVLionel Gunasekera and Others
•S'. C. Election Petition Appeal No. 4181 — CA Election-Petition No. l/81‘
Section S8(l)(d), 77,(a)(c) Ceylon (Parliamentary Elections) Order in Council —Adequacy of Security — Rule 12(2) Election Petition.Rules – Section SOBof Amending Act No. 9 of 1970-Corrupt Practice— General intimidation.
Sarath Muttetuwegama the Appellant was' elected Member of Parliamenton 12.1.81: Lionel Gunasekera the Respondent was one of the unsucessfulcandidates at, 'the election…..
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The Respondent challenged the election of the Appellant on grounds ofcorrupt practice' and general' intimidation. At the trial the Appellant raiseda preliminaffObjection that thearho'unt deposited as security was inadequate.
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It was argued that each separate false statement or allegation was aseparate charge and as such each such additional false statement necessitateda deposit of Rs. 2,5(X)/-.
Held that after the Amending Act No.51 of|,lty7<>. an election petition hadto contain a concise statement of material, facts and had to set forth'‘full particulars of any corrupt'or illegal'practice that the petitioneralleged and-thus if the Jiiver'al' statements1 arc in respect of thepersonal character or the personal conduct of a candidate there isonly one charge oT corrupt, practice as all such statements constitutethe particulars of the corrupt practice alleged.
(2) It is not possible to separate intimidation of voters fronvintimidation■ of persons other than voters for the .purpose of determining theamount to be deposited as security. The term general intimidationcovered both categories:
A.PPEAL from judgment of the Election Judge on preliminaryobjection.
Before:Samarakoon,Q.C.,C.J.
Wanasundera, J.
Wimalaratne. J.
Ratwattc, J.
Victor Perera, J.
sc
Sarath Muttetuwegama v. Lionel Gunasekera (Wimalaratne. J) 28.7
Counsel:
Argued on:Decided on:
L. de Silva Sr.A-AL with K.Shanmugalingam,Sidat Sri Nandalochana and S.H.M . Reezafor Respondent-Appellant.
George Candappa with S.C. Crossette Tambiah.Varuna Basnayake and Henry Jayamaha for.thePetitioner-Respondent.
K.Shanmugalingam with D.S. Wijcsinghe andS.H.M. Reeza forthe 2nd & 3rd Respondents.
22nd March, 1982.6.4.82 –
Cur. adv. vult.
WIMALARATNE,J:
The 1st'respondent-appellant Sarathchandra Muttetuwegama waselected the Member of Parliament for Kalawanit at'a-'bye- electionheld on 12:1.81. The petitioner Lionel dc SilVa Gunasekefa'. who isthe 1st respondent to this appeal, and who was one of the-unsuccessfulcandidates, challenged the election of the 1st respondent- on twogrounds, naittely,
that the corrupt practice of making false statements of fact in
relation to his personal character, within the meaning, of section58(1 )(d) read with section 77(c) of the Ceylon (ParliamentaryElections) Order-in-Council, 1946, as amended, was committedby the 2nd and. 3rd respondents, as agents of the 1strespondent-appellant, or with his knowledge and/or. consent(which false statements are set out in paragraphs 4, .5 & 6 ofthe Petition);
that by reason of general intimidation committed by supporters
of the 1st respondent-appellant the majority of electors wereor may have been prevented from electing the candidate.whomthey preferred, within the mcaning.of section 77(a) (the .materialfact of such intimidation being set: out in paragraph 7)v ….
In para 4 the petitioner alleged that the 2nd( res.ppn^nt,..^t^hjndaRajapakse, at a public .meeting in support* of the j st rc$popd^.ntj(h£ldon 31.12.80 made .the,following – falx, statement'^tf(-
translation of the Sinhala statement is produced as there" is nocontroversy about its accuracy).
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“When I was a student in 1960, I lived in Sravasthi with myfather. Lionel Gunasekera was also there in the upstairs. Onemorning I saw him bringing a woman to his room. 1 thoughtit was his wife. In the evening another woman was broughtin. In the morning it was yet another woman who went outof the room. Then I knew what type of person he was. If hecomes to your home you will have to protect your youngwoman. I wonder what will happen to your young girls andyoung mothers if this man goes to Parliament”
In para 5 the petitioner alleged that the 2nd respondent, at anotherpublic meeting held on 2.1.81 also in support of the 1st respondentmade the following false statement of fact:-
“As though it were today I could remember the Sixties, whenI was residing with my father at Sravasthi and attending School,Lionel Gunasekera lived upstairs. One morning I saw Lioneltaking a woman into his room. I thought she was his wife. Inthe evening I saw him bring another woman into his room.In the morning it was a different womaff that came out of theroom. Then I knew who the man was and this happened tobe his daily routine.
Is this the type of man you intend sending to the Parliament?The one advice I could give the Voters of Kalawana is, ifever this cad happens to come canvassing for votes to yourhome protect your innocent wife and daughters. It is evendifficult for an elderly woman to escape him. If this cad issent to the Parliament and your wife or daughter happens togo to him for a favour what will be the outcome? I am warningyou in advance”.
In para 6 the petitioner allege'd that the 3rd respondent PiyadasaHarischandra, at a public meeting held in support of the 1st respondenton 8.1.81 made a false statement imputing that the petitioner hadon several occasions in the 1960’s been convicted of offences, thathe was a lunatic or madman, that he was a person of low moralcharacter who used the toilets of Parliament for immoral purposes.(The entirety of the statement as alleged by the petitioner is not setout as there appeared to be no controversy about the number ofcharges contained in the statement in this paragraph).
SC Sarath Muitcmwegama r. Lionel Gunasekera (Wimalaratnc, J) 289
In Para 7 the petitioner alleged general intimidation, and set out insix subparagraphs the material facts on which he relied. In subpara(a) there is an allegation of intimidation of his supporters and ofvoters and even polling agents, exercised by supporters of the 1strespondent.
The 1st respondent-appellant raised a preliminary objection thatthe security of Rs.25,000/- deposited by the petitioner was inadequate.The Election Judge held that all that was required was a sum ofRs.15,000/- as security and overruled the preliminary objection. Hencethis Appeal.
■ The provisions relating to security which a petitioner is requiredto furnish is contained in Rule 12(2) of the Parliamentary ElectionPetition Rules of 1946, as amended by Act No.9 of 1970. It readsas follows:-
“The security shall be an amount of not less than fivethousand rupees in respect of the first charge constitutinga distinct ground on which the petitioner relies, .and afurther amount of not less than two thousand five hundredrupees in respect of each additional charge constituting anysuch ground. The security required by this rule shall begiven by deposit of money."
Learned Counsel for the 1st respondent-appellant contended beforeus that,
Para 4 contains a first charge constituting the distinct ground of thecorrupt practice of uttering a false statement, attracting assecurity a sum of Rs. 50(H)/-; and that it also contains twoadditional charges on the same ground attracting Rs. 5000/-.
Para 5 also contains three additional charges on the same groundattracting Rs.7500/-.
Para 6 too contains four additional charges also on,the same groundattracting Rs. 10,000/-.
Para 7contains one charge on the distinct ground of general intimidationattracting Rs.5000/-. According to his computation the,,to.talamount of security should be Rs.32.500/-.
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r Learned Counsel for the 2nd and 3rd respondents, whilst supporting-the argument on behalf of the appellant in respect of the chargesin paras 4, 5 & 6 went one step further in respect of the groundalleged in para 7 and contended that that paragraph contained notone, but two charges, one being intimidation of voters and the otherbeing intimidation of polling agents, which second category ofintimidation he categorised as “other misconduct” within the meaningof section 77(a). According to his computation the security shouldbe in-a sum of Rs. 35,000/-.
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There is no controversy that the four paragraphs contain two“distinct grounds” of avoidance of an election, namely (i) thecommission of corrupt practices within the meaning of section 77(c),and (ii) “the prevention of free voting”, which is a convenient phraseadopted to mean that “the majority of the electors were or mayhave been prevented from electing the candidate whom they preferred”,within the meaning of section 77(a). The controversy is as regardsthe number of “charges” contained within these two grounds.
Both Mr. H.L. de Silva for the appellant and Mr. Shanmugalingamfor the 2nd and 3rd respondents argued' that there were at leastthree statements of fact in relation to the personal character of thepetitioner in each of paras 4 .& 5; and they are:-
that the petitioner took a woman one morning to his room at* Sravasti, whom the 2nd respondent thought was his wife;
that in the evening another woman was brought in; and
that in the morning it was yet another woman who went out
of the room.
These, they say, constitute three allegations, and therefore threecharges, which the appellant has to meet. Once the petitioner provesthat the 2nd respondent, as agent of the appellant made these threestatements, then the burden shifts to the appellant to prove the truthof ali three statements. The proof of the truth of one or two of thesestatements would not suffice. The only way out is for the appellantto pjjoy.e the truth of all three. If he fails to discharge that burden,then fie would be guilty of a corrupt practice of making a falsestatement relating to the character of the petitioner.
SC Sarath Muttetuwegama v. Lionet Gunasekera (Wimalaratne. J) 29.1
Mr. Candappa for" the petitioner-respondent contended tbat:;.inparagraph 4,1 as well as in paragraph 5. there is..t>nly^statement:.offact relating-to/ithe character of the petitioner;.-ancL.that'-iR-;that thepetitioner is a man of immoral character as far as women aroconcerned. The three statements of fact referred to only formed thebasis for his conclusion regarding the petitioner's .-lack of morality.
In interpreting Rule 12(2) one has to have regard to certain otheramendments to our Election Laws introduced by the amending ActNo.9 of 1970. I refer in particular to the new section.MOB. which isin these terms:-
“80B. An election petition-
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shall contain a concise statement of. thg ■ material-facts onwhich the petitioner relies;
shall set forth full particulars of i.any. corrupt or- illegalpractice that the petitioner alleges.- including ms. Jull astatement as possible of the > names j of the parties–allegedto have committed suchcor.ru poor illegal- practice.and thedate and the place of the cnminissi(*n.of such- practice, andshall also be accompanied by an affidavit-in the prescribedform in support of the allegation of such corrupt or illegalpractice and the date and . place of) the commission of suchpractice;
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There .-could be little doubt that as a result of) these amendmentsof 1970 material changes in the scope of our law relating to electionsand election petitions have been effected. The history of the changesin the election laws have been recorded in the judgments-of. the fiveJudges of the former Supreme Court .in,. Election Petition AppealsNos. 1 and 2 of 1977 and No.3 of 1978 (S.C. minutes of 7,8.78).It is unnecessary to repeat them, except to emphasise that no longeris it possible to allege general,grounds of avp.idance, or charges.ofa general nature.. A concise statement of t,b,e material.,factsbastobe given, with full particulars of, apy xor/ugy pf. illegal.prac^e plleged.
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under verification by affidavit. What has been achieved by theseamendments is that immediately on a petition being filed, a respondentwould know the particulars of the. charges or allegations he is requiredto meet.
Let us examine section 58(1 )(d) in the light of the new amendments.The subsection reads thus:-
“Evcry person who makes or publishes, before or duringany election, for the purpose of affecting the return of anycandidate, any false statement of fact in relation to thepersonal character or conduct of such candidate;“ shall be guilty of a corrupt practice
In the Divisional Bench Judgment referred to earlier, Samarawickrema
J.was of the opinion that the words “in relation to the personalcharacter or conduct of such candidate” are inserted merely to definethe nature of the false statement-of fact which is struck at by theprovision. Accordingly, whether an allegation is made that a falsestatement of fact is in relation to the personal character or in relationto the conduct of the candidate, or in relation to both, there is onlyone corrupt practice alleged. Likewise, to make several false statementsof fact on one occasion, the combined effect of which is to cast areflection on one facet of a person’s character would, in my view,amount to the commission of but one corrupt practice of making afalse statement relating to the personal character of that person. Forexample, to say of a man that he is a drunkard because he wasseen consuming liquor in the morning, then again at lunch time andlater in the evening, would be to make one statement of fact inrelation to his personal character, namely that he is a drunkard. Thestatements that he was seen consuming liquor at three different timesof the day only constitutes the reasons for drawing the conclusionthat he is a drunkard. Supposing an election petition contains anaverment that a speaker at an election meeting made a statementthat a candidate was a drunkard because he was seen taking liquorat different times of the day and on all seven days of the week, itwould be quite absurd to say that the number of false statementsof fact, if they be false, contained in that speech, would be equivalentto the number of times per day the candidate was seen consumingliquor multiplied by seven. It is difficult to believe that the legislature
SC Sarath Muttetuwegama v. Lionel Cimasekera (Wimalaratne, J) 293
ever intended Rule 12(2) to be interpreted in manner so as to readinto statements of this kind more than one charge. Likewise, thereis only one charge in each of paragraphs 4 and 5 of the presentpetition. The allegation that women were seen either going into orcoming out of the candidate's room on three different occasionsconstitute only the reasons for making the statement that the candidateis a man of immoral character. They constitute the particulars of thecorrupt practice alleged, which petitioner is obliged to give by reasonsof section 80B(d). Paragraph 6, however, contains three statementsrelating to three facets of the candidate’s personal character, nariiely.that he is a convict, that he is a lunatic and that he is a man oflow morals. Although the appellant sought to show a fourth statementof fact, we arc unable to sec more than three such statements.
The ground of avoidence contained in para 7 is the “preventionof free voting” within the meaning of section 77(a). The charge asalleged in the petition is “general intimidation". In giving the materialfacts on which he relied to establish this charge the petitioner allegedthat even polling agents were threatened and intimidated. LearnedCounsel for the 2nd and 3rd respondents invited us to treat "intimidationof polling agents” as distinct from “general intimidation of electors:"and as constituting a separate charge under the heading “othermisconduct” in section 77(a). I am unable to agree. It is not possibleto construe section 77(a) so as to separate intimidation of electorsfrom intimidation of persons other than electors. The term “generalintimidation” is wide enough to include both categories. I am thereforeof the view that paragraph 7 contains only one charge constitutinga distinct ground of avoidance.
On the above basis the security required is as follows: –
Para 4 contains one first charge on a distinct ground of avoidanceattracting Rs. 5.000/-
Para 5 contains one additional charge on the same ground attracting Rs. 2,500/-
Para 6 contains three additional charges on the same ground attracting Rs. 7,500/-
Para 7 contains one charge on another distinct ground of avoidanceattracting Rs. 5.000/-
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The total amount.,pf,.security that the Petitioner was obliged todeposit as, .seqyijity ^n.der.jRule 12(2) was therefore Rs.20,000/-. Hehas deposited jRs;25,Q00/*. The Court of Appeal has rightly overruledthe objection , to security.. This appeal is accordingly dismissed with ,costs^. payajble by the 1st Respondent-Appellant to thePetitioner: Respondent.
SAMARAKOON C.J. — I agree.
WANASUNDERA J. — I agree.
RATWATTE J. — I agree.
VICTOR PERERA J. — 1 agree.
Appeal dismissed
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