DIAS J.-—lif. re Amarasena
1948Present: Dias J.In re AMARASENA
In the mattes, of the Trial of Election Petition No. 13 of 1947(Election for Colombo South Electoral District)
Election petition—Person found guilty of corrupt practice—Has Court a dis-cretion whether to report him ?—Right to canvass finding—Certificate ofindemnity—Ceylon (Parliamentary Elections) Order in Council, 1946,Sections 58 and 82.
Where at the hearing of an election petition any person has beenfound guilty of a corrupt or illegal practice it is dbligatory on the Courtto report him to the Governor-General in terms of section 82 (1) (6) of theOrder in Council.
Such person, if not a party to the petition, is entitled to canvassthe finding of the Election Judge.
There is no provision in the Order in Council for a certificate of .indemnity to a witness.
JL HIS was an order made in regard to a witness in the trial of ElectionPetition No. 13 of 1947.
T.W. Majaratnam, for the witness R. M. G. Amarasena.
A. I. Rajasingham, for the petitioner.
ilf. Tiruchelvam, Croum Counsel, for the Attorney-General on noticeas amicus curiae.
Cur. adv. vult.
September 7, 1948. Dias J.—
On the last occasion when this matter was before the Court, the witness
R.M. G. Amarasena appeared in person and obtained time to show cause.I have now had the advantage of a full argument on the questionsinvolved.
Amarasena gave evidence for the petitioner in the recent electionpetition inquiry of Saravanamuttu v. de Mel1. On his own admission heabetted various persons to impersonate at the polls. He is a self-confessed accomplice. The Court held that Amarasena was a truthfulwitness, and that his testimony was corroborated in various materialparticulars. His story, which the Court accepted, is that he had beenengaged by the respondent, de Mel, to help in the election campaign.Amarasena had no idea that he would be called upon to do anythingillegal. He helped the respondent from September 1, 1947, up to theday of the election which toot place on Septeniber 20, 1947. On thenight of September 19, Amarasena says he was awakened from his sleepin the respondent’s house late at night and was taken before de Mel, whopersuaded him to assist in the large scale impersonations which tootplace on the following day. The witness admits that he realized thathe was asted to do something wrong and illegal, but owing to his loyalty1 (1948) 49 N. L. R. 529.
DIAS J.—In re A.marasena
to his master he did what he was asked to do. Amarasena says thatthereafter he decided to expose the truth. The fact of the matter,however, is that de Mel who had promised Amarasena liberal rewardsdid not keep his word. This incensed Amarasena who went to thepetitioner and exposed de Mel. The evidence proves that de Mel madedetermined attempts to induce the witness not to implicate him. Amara-sena, however, declined to be corrupted further. The Election Judgeheld that Amarasena is guilty of the “ corrupt practice ” of abetting thecommission of personation within the meaning of section 58 (1) (a) ofThe Ceylon (Parliamentary Elections) Order in Council, 1946.
The question for decision is whether a person in such a situation mustbe reported to the Governor-General in terms of section 82 (1) (6) ?
Under section 82 (2) Amarasena has been called upon to show cause whyhe should not be so reported. The only submission made on bis behalfis that, although Amarasena has been proved at the trial of the electionpetition to have been guilty of a “ corrupt practice ”, having regard to thefact that he spoke the truth, and helped the cause of justice by helping toexpose a colossal conspiracy and fraud, the Court has a discretion as towhether such a person should or should not be reported.
I desire to state that if I have such a discretion, I would draw a dis-tinction between a repentant and unrepentant sinner, even thoughAmarasena’s repentance was originally actuated by revenge. The variousattempts subsequently made by the respondent to make him give falseevidence made him decide that honesty, even though belated, was the bestpolicy.
I am satisfied, however, that I have no such discretion in the matter.The words of section 82 are :
82 (1) At the conclusion of the trial of an election petition, the
Election Judge shall also report in writing to the Governor—
the names and descriptions of all persons, if any, who have been
proved at the trial to have been guilty of any corrupt or illegalpractice.
If the contention of counsel for the witness is sound, the word “ shall ”must be construed to mean “ may ”. I do not think this is a permissibleconstruction. Whenever a statute declares that a thing “ shall ” bedone, the natural and proper meaning is that a peremptory mandate isenjoined. Section 82 must be read together with the earlier section 81.These two sections together impose a duty on the Election Judge. Undersection 81 “ He shall certify ” his determination to the Governor. Undersection 82 “ He shall also report ” certain things to the Governor. It isclear that under section 81 the Election Judge has no discretion whatever.Therefore, when section 82 proceeds to say that the Election Judge “ shallalso ” do something else, those words can only mean that it is hisimperative duty to perform the duty enjoined by section 82.
All the necessary conditions have been satisfied. Amarasena has beenproved at the trial of the election petition to be guilty of the corruptpractice of abetting persons to commit the offence of impersonation. In
DIAS J.—In re Amarasena
fact, he admits this. He has been given an opportunity of giving andcalling evidence to show why he should not be reported. He has shownno cause which justifies me in refraining from reporting him. The Courtcannot distribute favours. If the law operates harshly in regard to aperson like Amarasena, or if the effect of the law is to dissuade personsfrom coming forward and giving evidence, the remedy is in the hands ofParliament to amend the law. The Judge cannot do this. I, therefore,hold that the witness Amarasena must be reported, although I do so withregret.
Various other matters have been argued. As they are of practicalimportance, I shall say something about them.
In a proceeding under section 82 (2) where a person, not being thecandidate or a party to an election petition, shows cause, is the counselfor the petitioner (or the respondent as the case may be) entitled to beheard ? This question was answered in the affirmative in the case of TheBorough of Worcester1. I think we should follow the same rule inCeylon.
The question was raised whether the person showing cause undersection 82 (2) could canvass the finding of the Election Judge ? I am ofopinion that he may do so. Take a proceeding under section 439 of theCriminal Procedure Code. The jury adds a rider to the verdict statingthat a witness has given false evidence. The trial Judge thereuponcauses an indictment to be drafted, and the witness is charged before thesame jury on that indictment. The finding is prima facie proof of guilt,but this presumption can be rebutted. In my opinion it is open to thewitness to lead evidence to prove that the verdict of the jury or thefinding of the Election Judge is unjustified on the facts. Gf. In re JamesAppuhamy a, Pedris v. The Manufacturers Life Insurance Go., Ltd. 3.
Another matter which was referred to is whether in this Island it isopen to the Election Judge to give a “ certificate of indemnity ” to awitness as may be done in Britain. Under The Corrupt and IllegalPractices Prevention Act, 1833 4 it is provided by section 59 that a witnessat an election petition inquiry shall not be excused from answering anyquestion relating to any offence at or connected with such election on theground that the answer thereto may criminate or tend to criminate him-self or on the ground of privilege. It is, however, provided that a witnesswho answers truly all questions which he is required by the Election Courtto answer “ shall be entitled to receive a certificate of indemnity underthe hand of a member of the Court staling that such witness has soanswered ”, But section 59 (3) goes on to provide that “ Nothing in this■section shall be taken to relieve a person receiving a certificate of indemnityfrom any incapacity under this Act or from any proceeding to enforce suchincapacity (other than a criminal prosecution) ”. There are no similarprovisions in the Ceylon Order in Council. Amarasena when givingevidence might under section 132 of the Evidence Ordinance have refusedto answer certain questions on the ground that his answers might .criminate him or tend directly or indirectly to criminate him, or expose
(1906) 5 O’M «fe H. at p. 216.* (1917) 19 N. Z. R. at pp. 323-327.
(1948) 49 AT. Z. R. 261.» 46 dt 47 Viet. c. 51.
DIAS J.—Vellaiyan v. V cCUA/ywm
or tend directly or indirectly to expose him to a penalty or forfeiture.
et us assume he took this plea and was thereupon compelled by theCourt to answer. The only protection he thereby obtains under section132 (2) is that the evidence he gave under pressure from the Courtcannot “subject him to any arrest or prosecution, or be proved againsthim in any criminal proceeding, except a prosecution for giving falseevidence by such answer ”. It would not, in my opinion, save him frombeing reported under section 82 of the Order in Council.
Reference was also made to section 73 of the Order in Council whichentitles the Court to refrain from making a report under certain circum-stances. That section has reference only to candidates and does notapply to a witness like Amarasena.
I am indebted to Crown Counsel, Mr. M. Tiruchelvam, for the assistancehe rendered to the Court as amicus curiae.
In re AMARASENA