DALTON J.—Lateef v. Saravanamuztu.
Section 78 of the Order in Council, 1931, draws a sharp distinctionbetween “ conclusion of trial ” and “ determination “ Conclusion ” isanterior to “ determination ”.
[Dalton J.—The whole idea is that no one should be reported withoutshowing cause. No party to a petition need show cause.]
The difficulty is that I have been heard as to corrupt practice but Ihave not been heard as to why I should not be reported. In view of thedifficulty in construing this section, see Ex parte Walker
B. F. de Silva (with him J. R. Jayawardene), for petitioner.—Theengagement lasts as long as the purpose for which it was secured—tillelection day. The word “ report ” in section 74 (d) means the report ofthe Judge to the world after a person has been found guilty of corruptpractice. It does not mean the report to the Governor.
Section 79 contemplates the case of persons who are not parties to anelection petition. No election Judge would, on a person showing cause,annul the decision avoiding an election. See section 70 which bears outthe argument that the finding of the Judge under section 78 is a report.
Taking it at its lowest Dr. Saravanamuttu was disqualified on March 22,but right up to the polling day the leaflets were in circulation and werenever repudiated.
Counsel cited 20 Empire Digest, 61 s. 397; 1 O’M. & H. 200;.4 O’M. & H. 11.
J.W. R. lllangakoon, Acting S.G. (with him H. Basnayake, C.C.),for the Attorney-General.—Both Articles 78 and 79 commence with theexpression “At the conclusion of the trial”. Under Article 78 the Judgeis required at the conclusion to certify whether the election is valid ornot and under Article 79 he has to report whether any corrupt or illegalpractices have been committed and send in a description of the personswho have been proved at the trial to have been guilty of such offences.This report must be forwarded at the same time as the certificate, namely,at the conclusion of the trial. Article 79 (2) has been taken from 46 &47 Viet. c. 51, s. 38 (1). Under the English law a candidate who is aparty to the election proceedings is not granted an opportunity of showingcause, presumably because he has already had the opportunity duringthe trial. See 3 O’M. & H. 88, 17, 75. Article 79 (2) is wider than theEnglish law. “ Canvasser ” is defined in 35 & 36 Viet. c. 60, s. 2.
September 7, 1932. Dalton J.—
This petition that the election of the respondent, Mrs. Nay sumSaravanamuttu, should be declared null and void is based upon allegationsof the corrupt practices of treating and personation, and further thatrespondent had as a canvasser or agent Dr. Saravanamuttu, although sheknew he had within seven years been found guilty of a corrupt practiceby the report of an election Judge. The petitioners led no evidence inrespect of the corrupt practices alleged, but confined themselves entirelyto the last charge. Article 74, sub-section (d), of the Ceylon (State CouncilElections) Order in Council, 1931, enacts, among other things, that theelection of a candidate as a member shall be declared void on an electionpetition, if it be proved to the satisfaction of the election Judge that thecandidate personally engaged a person as a canvasser or agent, knowing
• 22 Q. B. D. S84 . 388.
DALTON J.—Lateef v. Saravanamuttu.371
that such person had within seven years previous to such engagement,been found guilty of a corrupt practice by the report of an election Judge.
At the general election Dr. Saravanamuttu was elected member for theconstituency of Colombo North on June 13, 1931. He was, however,unseated on petition on March 8, 1932, on the ground that he was guiltyof the corrupt practices of bribery and undue influence. Thereupon hiswife, the present respondent, came forward as a candidate for election,and was elected at the by-election held on May 29, 1932.
The evidence led in support of the charges under Article 74 (d) may bedivided into two portions—first, that contained in leaflets admittedlyissued by Dr. Saravanamuttu asking voters to support his wife, and second,that of witnesses who speak of having been canvassed by Dr. Saravana-muttu personally, or who say they have seen him canvassing.
It is stated by respondent, by her election agent and brother-in-lawN. Saravanamuttu, and by Dr. Saravanamuttu that immediately thelatter was unseated they were approached by voters in the constituencyto put the respondent forward as a candidate, and it is admitted they hada family meeting to consider the proposal which was then agreed to. Dr.Saravanamuttu had been unseated on March 8, and after his wife, therespondent, published, as she says, a notice in the newspapers to theeffect that she was coming forward as a candidate, on March 12, he (Dr.Saravanamuttu) drew up and sent to the printers a leaflet (exhibit P 2)in English, signed by himself and addressed to the voters of the ColomboNorth electorate, calling attention to the fact that he had been unseatedand stating that another election would therefore be held within twomonths. It goes on to state “ my wife, Mrs. Naysum R. Saravanamuttu,is seeking election as your representative at this by-election,” and heappeals to them to vindicate the confidence they placed in him byextending to his wife the same measure of support that they had givenhim. He concludes: “ You will find her as competent as myself torepresent you.” 5,000 copies of this leaflet were printed and delivered tothe respondent at No. 1, Hill street, Colombo, by the printers on March 14.She paid for them on March 24.
On March 19, the printer received another order for 3,000 copies of thesame leaflet in Tamil (exhibit P 3). The wording is slightly different,this leaflet closing with the words (as translated) “ I humbly request youto elect her with as much trust and devotion you have had in electing me.She has the courage of serving the country as myself.” It is also signedby him and issued from No. 1, Hill street, Colombo, on March 19,According to the evidence this is his professional address, their privateresidence being at the time in New Chetty street. The leaflets were dulyprinted and delivered to the respondent at No. 1, Hill street, and werepaid for by her on May 2.
On March 22, the printer received a further order for 10,000 copies ofthe same leaflet in Sinhalese (P3). This order was duly carried out, anddelivery made to respondent on March 23, payment therefor being madeon May 2.
In her evidence the respondent states that she only came to know ofthese leaflets just before they were sent to the printers, and that herhusband was responsible for them. She states they were composed
DALTON J.—Lateef v. Saravanamuttu.
without reference to her, but she admits they were shown to her beforethey were sent to the printers. She clearly approved of what was beingdone in respect of them, and the evidence of the Manager of the presswhere they were printed is definite to the effect that the orders wereplaced by her, the leaflets were delivered to her, and were paid for by her.The manuscript of P 2 sent to the printer is admitted by her election agentto be in the handwriting of Dr. Saravanamuttu, and neither respondent,her election agent, nor Dr. Saravanamuttu denies responsibility for theissue of this leaflet as it was printed in English, Sinhalese, and Tamil.
The evidence of respondent and her election agent goes on to show thatthe leaflets were divided up into batches and sent out to the workers inthe different sections into which the electoral area had been divided up,for distribution to the voters. The distribution of this appeal by Dr.Saravanamuttu was made on a systematic basis by means of the machineryset up by the election agent of the respondent to further the campaign ofthe respondent, and in such a way so as to reach all communities in theconstituency. They both state that, with the exception-of a few kept fortheir own files, all the leaflets would be distributed within forty-eighthours of receipt. I am not satisfied, however, as I point out later, thatthis is correct, as both otherwise state that no canvassing was done beforenomination day. No evidence was further called to show when thevarious workers would have completed distributing the batches of leafletsissued to them and I have do doubt, as the evidence shows, that votersreceived copies of this appeal by Dr. Saravanamuttu to support therespondent even after the nomination of the candidates on April 14.Even if that had not been so, the leaflets were never withdrawn, nor didthe respondent ever repudiate or disown this plea to the electors byDr. Saravanamuttu on her behalf, but she took full advantage of it, as theevidence of her electoral agent shows, throughout her electoralcampaign up to date of polling, May 28. The importance of thesupport of Dr. Saravanamuttu for any candidate for Colombo North isstressed by her election agent. He states Dr. Saravanamuttu desired hiswife’s return. He calls him a big asset, a very influential person in theconstituency, and one who would be of great use in respect of therespondent’s candidature. With this both Dr. Saravanamuttu and hiswife agreed, the former admitting but only “ to some extent ” that hisleaflets would obtain voters for her.
It has been urged by counsel for the respondent that the issue of theseleaflets by Dr. Saravanamuttu could not be said to be a canvassing onbehalf of the respondent, as the word “ canvass ” is used in Article 74 (d)of the Order in Council. He sought to show that the word “ canvass ”as used there imported some personal contact between the person makingthe request and the person to whom it is made, and further would onlyapply to one individual dealing with another. I am unable to agree withhis argument. To adopt such an interpretation of the term wouldnecessitate giving it a very narrow and restricted meaning entirelydifferent from its ordinary and general meaning, for which I can see nojustification in the Order in Council. Even the respondent’s electionagent was forced to admit that in terms (although he says it was notintended) the appeal contained in the leaflets (P 1-3) was a canvassing of
DALTON J.—Lateef v. Saravanamuttu.
votes for the respondent. I see no reason to conclude that the word isused in any other sense but its ordinary meaning when applied to elections,—a solicitation for votes or for support, which solicitation may be made invarious ways, such as by personal request to individuals, by speeches, orby the distribution of leaflets such as these. Both Dr. Saravanamuttuand his brother stated that the leaflets were issued only for the purpose ofconveying to electors the fact that Dr. Saravanamuttu was a consentingparty to his wife standing for election. It was suggested this wasnecessary, because they said they were dealing with an ignorant electoratein case a report was spread by other candidates that she was standingwithout his approval. I regret I am unable to accept their evidence onthis point. The leaflets speak for themselves. 6oth the witnesses areprofessional men, with a knowledge of the meaning of words, and theyhad to admit that the leaflets went far beyond any such alleged intention.The reason they put forward, I have no doubt whatsoever, was not true.
Counsel then urged, if I am unable to accept his argument that thepreparation and distribution of these leaflets was not a canvassing byDr. Saravanamuttu, nevertheless there was no evidence to justify afinding that he had been personally engaged by the respondent as acanvasser or agent within the meaning of Article 74 (d). That article hasbeen adapted from 31 & 32 Viet. c. 125, s. 441. That section providesfor the • voidance of an election where a corrupt agent is employed,and requires a personal engagement by the candidate to be proved. Inthe North Norfolk case 2 Blackburn J. sets out what this means. In thatcase a person Mr. P. who was on the schedule of persons guilty of corruptpractices acted as Chairman at one or two public meetings, proposed therespondent as a candidate, attended meetings of the respondent’scommittee, on several occasions acted as its chairman and as such signedhandbills and circulars. It was not proved, however, that there hadbeen any direct personal engagement of Mr. P. by the respondent, nor infact had he ever known that he had acted as .chairman of his committee,although his agents knew it and also knew that Mr. P. was on the schedule.Blackburn J. states, after citing section 44,
– “ It is to be observed in the first place that the legislature hascarefully confined the operation of the enactment to the candidatehaving ‘ personally engaged ’ the person; therefore in order to bringthe candidate, who is alleged to have committed the offence withinthe enactment, it is necessary that he shall have been personally guiltyof that offence. I do not construe personal guilt in the sense of doingit with his own hand in order to bring him within the section. I do notthink it is necessary to show that the candidate went and spoke to thescheduled man himself and said * act as my agent ’, but I think thestatute means that it must be brought home to his personal knowledge.If I send a man out to hire someone in order to shoot someone else, I ampersonally guilty of the murder if it is done, though I hire the murdererin a round-about way and though I may not know who ultimately didit. I think this section means that where what is done is done withthe candidate’s ‘ knowledge and consent ’ which is the phrase used inthe section" immediately preceding then it amounts to a personalengagement.”
The Parliamentary Elections Act, 1868.2 1 O’M. & H. 236.
DALTON J.—Lateef v. Saravanamuttu.
The section immediately preceding plays the same part in the Statuteas Article 79 does in the Order in Council.
The learned Judge goes on to point out that the employment used neednot be paid employment, nor for the whole of the election. This interpre-tation of the section was approved and followed in the Norwich case It is applicable to the equivalent provisions of the Order in Councilwhich I am called upon to construe, and' following this authorityI hold that Dr. Saravanamuttu was personally engaged by therespondent as a canvasser and agent, by means of these leaflets andcanvassing to use his influence with the electors on her behalf, to solicitvotes for her, and to help in her return as member for the constituency inhis place. The first act by Dr. Saravanamuttu as her agent and canvasser,the preparation of the leaflets and their despatch to the printer, was donebefore he had in fact been reported under Article 79, but the distributionof his appeal continued after the report, and after the respondent wasaware that he had been reported.
At this point it is necessary to consider some further proceedings whichtook place in the hearing of the petition against Dr. Saravanamuttu afterhe had been declared to be unseated on March 8, as they affect thispetition. The learned election Judge issued his certificate on that date(exhibit P- 9) as required by Article 78. Therein he sets out thatin pursuance of Article 78 of the Order in Council he held and determinedthat Dr. Saravanamuttu was guilty of the corrupt practices of bribery andundue influence in connection with the said election, and that his electionwas void. He further names in the certificate other persons described asDr. Saravanamuttu’s agents who were also found guilty of the corruptpractice of undue influence. This certificate is final and conclusive as tothe validity of the election. Inasmuch, however, as it goes on to statethat Dr. Saravanamuttu and others had been found guilty of certaincorrupt practices, and was forwarded to His Excellency the Governor,counsel for petitioners before me urged that it was not only a certificateunder Article 78, but also a report to the Governor under Article 79. Thatview of the exhibit (P 9) I am unable to accept for reasons which willappear, although in fact the document does report him as being guilty ofcorrupt, practices. The subsequent proceedings show it was not intendedto be the report required of the election Judge under the provisions ofArticle 79.
On the construction of these Articles, and the procedure in respect ofcertificate and report for which they provide, I have had the benefit ofhearing counsel on both sides, and also the Acting Solicitor-General, towhom I am indebted for the help given me.
Article 79 (2) has been adapted from the provisions of.46 & 47 Viet.c. 51, s. 38. The purport of the provisions seems to be that no one shouldbe reported for any corrupt or illegal practice, ,who has not had anopportunity of being heard in his own defence. There would appear tobe no uncertainty as to the practice followed in England, as set out in thecases to which the Acting Solicitor-General has referred. There is nosuggestion there that any further proceedings subsequent to judgmentare denoted. The indications are all to the contrary. In the East
i 2 O'M. <t ft. 38.
DALTON J.—Lateef v. Saravanamuttu.
Kerry case1 Kenny J. set out at the end of his judgment, after statingthat the respondent would be declared not to have been duly elected andthat the election was void, the names of persons, including the respondent,who would be returned as guilty of corrupt practices. In theBarrow-in-Furness case1 Field J. at the conclusion of his judg-ment declaring the seat void stated that the respondent and hiselection agent would be reported for an illegal practice. One must inferthat any person entitled to notice under section 38 duly received suchnotice before judgment. It must be noted, however, that the require-ments of our Order in Council in respect of procedure do not go sofar as section 38. In the East Dorset easel applications for reliefwere heard before the termination of the proceedings, and at onepoint Pickford J. formally asked Lady Wimbome, who was a witness andhad given evidence, whether she had any cause to show against beingreported. The samepractice is denoted inthe Monmouth
Boroughs case On this matter I am in entire agreement withthe argument of Mr. Illangakoon and have no doubt that under theprovisions of the Order in Council the certificate and report are requiredto issue at the same time, namely, at the conclusion of the trial. Inpractice in England in reported cases one finds the certificate and reportcontained in one document (The Gloucester caseB; Grant v. Overseers ofthe Parish of PaghamB).
I conclude, however, from what counsel for respondent has stated, andhe was also counsel for Dr. Saravanamuttu in the petition against him,that there was some uncertainty on that occasion as to what practiceshould be followed in view of the provisions of Article 79 (2) which setsout that before a person is reported by an election Judge under Article 79,he should be given an opportunity of being heard. There can, of coursebe no doubt that Dr. Saravanamuttu, as a party.to the election petitionagainst himself, had had full opportunity of being heard in thoseproceedings, and had been heard before judgment was delivered on March8. He stated in evidence before me it had been a very exhaustive inquiry.In the uncertainty which prevailed, however, as to the practice to befollowed under a new Order in Council it seems to have been thought,so I gather, that Article 79 (2) provides for further proceedings to be heldafter judgment and certification, before any report could be sent to theGovernor under Article 79, giving all parties a further opportunity ofshowing cause why they should not be reported.
On that construction of the article Dr. Saravanamuttu was on March 8called upon by the election Judge to show cause (exhibit R 16) why heshould not be reported to His Excellency the Governor in respect of theoffences, which it had been found by the judgment of the election Judgehe had committed. He was allowed time, and the learned election Judgesat again to hear evidence on March 15, 16, and 17, and on the latter dateintimated to the persons called upon to show cause that he would makehis report to the Governor in the ordinary course. His proctor in theelection petition and in the subsequent proceedings was his brother,
6 O’M. tt H. 58.* 5 O'M. £ H.170.
4 O'M. .{• H. 82.5 3 O'M. £ H.7b.
6 O'M. ,f H. 55.6 37 L.' T. 404.
376DALTON J.—Lateef v. Saravanamuttu.
Mr. N. Saravanamuttu, who is also the present respondent’s electionagent. From the evidence before me I have no doubt that both Dr.Saravanamuttu and his proctor were aware on March 17 that he hadfailed to show cause against being reported and that he was to be reportedfor the offences, which it had been found, as set out in the judgment andcertificate of March 8, he had committed. The latter did not convinceme that he was to be believed when he stated that Dr. Saravanamuttuhad not put the whole of the case, which he wished to present to theelection Judge in respect of the charges against him, before the learnedJudge prior to the proceedings to show cause. On this point he is not inagreement with Dr. Saravanamuttu, and I cannot conceive any proctorwho appreciates his duty and who knows the finality of the certificate ofthe election Judge under Article 78 not putting all proper and relevantmaterial before the election Judge before he comes to a conclusion as to thevalidity of the election. The respondent also, I am satisfied, was fullyaware on March 17 that Dr. Saravanamuttu was to be reported to theGovernor in respect of the offences of which he had been found guilty onMarch 8. She admits she read the judgment the next day, on which dateit was also decided she was to come forward to contest the seat.
The report of the election Judge was in fact made on March 22 (exhibitR 17). It was of course not intimated to the parties, being a communi-cation to His Excellency the Governor, although the parties were awareon March 17 that Dr. Saravanamuttu was to be reported in due course,which under the circumstances must have meant within a few days at themost. He was not a reported person until March 22, but any employmentas agent or canvasser of a person who was to be reported under thesecircumstances, after the person knew he was to be reported and that thereport might go in at any time, would obviously be a very risky thing todo. The report, was published in the Gazette of April 8 under theprovisions of Article 79 (4) of the Order in Council, in order that theregistering officers might have notice and take the necessary action inrespect of the register of voters. This publication is not for the benefit ofthe parties reported. There is no need for any such provision either inthe case of the issue of the certificate respecting the validity of theelection, or in the case of the report, since both follow as a matter ofcourse on the judgment, if any person is found to have committed anycorrupt or illegal practice and if any report is to be made at all on theconclusion of the trial, under the provisions of the Order in Council. Theparties who have been heard and others, who the circumstances mayrequire should be given an opportunity of being heard during theproceedings before its conclusion, have full notice at the time judgment isgiven of any electoral offences they are found to have committed and ofthe result which will necessarily, under the Order in Council, follow onthose findings.
It has been urged for respondent, relying upon the publication of thereport in the Gazette of April 8, that she did not know that Dr. Saravana-muttu had been found guilty of a corrupt practice by the report of anelection Judge until that date, and the pamphlets (P 1-3) which weredrawn up.by him having been distributed some time before that date,there was no employment by her of him as a canvasser after she became
DALTON J.—Lateef v. Saravanamuttu.
aware he was a reported person. I have no doubt, as I have statedbefore, that some of those leaflets reached the voters by distributionsubsequent to April 8, but even if it had not been so, I do not think it isopen to respondent to plead ignorance of the report after the day onwhich it was made, namely, March 22. She was aware that it was toissue any time after March 17. She was aware on March 8 that theelection Judge had found that corrupt practices had been committed byDr. Saravanamuttu, and she was aware on March 17 that he would bereported to His Excellency the Governor in due course. Her evidenceas to whether or not she knew it was right for Dr. Saravanamuttu to takepart in her campaign, and ds to the point of time at which she knew itwas wrong for her husband to assist her is contradictory; she does admithowever more than once that after March 22 she was aware he could notlawfully help her, but that up to that date there was no reason why heshould not have accompanied her anywhere in the electorate on hercampaign, although she says he did not do so. On that latter point ofcanvassing with her I regret I am unable to accept her evidence for thereasons given below.
I come now to the second portion of the evidence led in support of thecharge under Article 74 (d).
[His Lordship, after discussing the evidence, proceeds.]
On the second portion of the evidence in this case, therefore, I havecome to the conclusion that the evidence of the witnesses whom I havenamed goes to show that Dr. Saravanamuttu actively in person joined inthe campaign in support of his wife, even after nomination day. Thereis ample evidence, in my opinion, however, in the first portion of the casedealing with the leaflets P 1 to P 3, in the evidence and admissions of therespondent, her election agent, and Dr. Saravanamuttu himself, tojustify the conclusion that the ground for declaring the election of thecandidate void, as set out in Article 74 (d), had been fully established.My view of the evidence of the witnesses Simon Perera and" AhamaduLebbe shows that the action taken by Dr. Saravanamuttu in respect ofthe issue of these leaflets to the voters was followed up by further stepson his part to obtain her return. In my conclusions I have borne inmind Mr. Soertsz’s contention, based on the remarks of Baron Martin inthe Warrington case1 that a Judge ought not to upset an electionunless satisfied beyond all doubt that the election is void. As pointedout there, the return of a member is a serious matter and not to beLightly set aside, but in this case I have not the least doubt on theevidence here that the respondent was returned as member for theconstituency by the active and continuous help of a person who wasfound guilty of a corrupt practice by an election Judge within the termsof Article 74 (d), which help was readily and willingly accepted by her.In that event I am required to declare the election void and I ghall socertify to His Excellency the Governor.
I am further required, under the provisions of Article 79, to certify atthe conclusion of the trial whether any corrupt or illegal practice has,or has not been proved in terms of that Article. The petitioners alleged
i 1 O'M. d- H. U.
DALTON J.—Lateef v. Saravanamuttu.
certain corrupt practices in their petition but led no evidence in supportof them. As to whether any illegal practice has been proved is a matterof greater difficulty. Under Article 65 of the Order in Council it isenacted that certain employments for payment or promise of paymentare illegal. I can find nothing in the Order in Council to the effect thatthe employment of a reported person is an illegal practice, unless it canbe brought within the provisions of Article 65, which is not the case here.Whilst such employment is unlawful in this respect, that it will have theeffect, if satisfactorily proved, of rendering the election void, unless it isalso employment which is prohibited by Article 65, it does not compriseone of the practices which is termed an “ illegal practice ” within themeaning of the Order in Council. No argument or suggestion to thecontrary has been made to me by any of the learned counsel who haveappeared in the case, nor have I been able to find anything in the law inEngland on this point which shows that the law there is different. Theoffence of illegal employment is an illegal practice, but only whencommitted by the candidate, his election agent, or sub-agent (Rogers onElections, Vol. II., p. 369).. This is provided by 46 & 47 Viet. c. 51, s. 21(2). The illegal employment referred to, however, would appear to bethat defined in section 17 of the Statute, and its schedules, from whichArticle 65 of the Order in Council has been framed. It is possible thatthe payments for the leaflets might be illegal payments under section 13of the Statute, and so illegal practices, but it has not been suggested theycan come within the terms of Article 64 of the Order in Council, whichsets out what expenditure is illegal. There is no doubt, of course, underother sub-sections of Article 74, that an election can be declared to bevoid for other reasons than the proof of corrupt or illegal practices. Ishall therefore report that no corrupt or illegal practices have been provedto have been committed.
I would finally add in fairness to the candidate that although in lawshe is responsible for the employment of Dr. Saravanamuttu as an agentand canvasser, willingly agreeing to his doing what he did to assist inher election, I have no doubt on the evidence she was not given anyopportunity by either Dr. Saravanamuttu or her election agent for takingup any other position. There is nothing to suggest she wished to do so,but had she done so, she would probably not have been put forward bythem as candidate. To make use of the words of her election agent, shewas put forward by the family and she did what she was told to do inrespect of her campaign, relying, I have not the least doubt from theevidence led before me, on the experience and assistance of her husband.The latter had been his own election agent in his electoral campaign.She cannot of course say she was not a free agent, but the responsibilityfor her being unseated under the provisions of Article 74 (d) rests primarilyand chiefly upon. Dr. Saravanamuttu and her election agent, herbrother-in-law.
The result is that the election is declared void. The petitioners areentitled to their costs, save in regard to the witnesses Bonnie Wijegune-ratne and Canagasabapathy, and save in so far as any expenses have beenincurred by them in respect of the charges that were not pursued.
Election declared void.