BANDARANAIKE v. PREMADASA

020-SLLR-SLLR-1989-V-1-BANDARANAIKE-v.-PREMADASA.pdf


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BANDARANAIKE
v.
PREMADASA
SUPREME COURT.
RANASINGHE. C. J.
TAMBIAH..J.'
G. P. S. DE SILVA. J.
JAMEEL J.
AMERASINGHE. J.
PRESIDENTIAL ELECTIONPETITION NO. 1 OF 1 989
MARCH 13. 14. 15. 16. 1 7. 20. 22. 23. 27. 28. 29 andMAY 2. 3. 4. 5. 8. and 9. 1989
Election Petition — Presidential Election — Preliminary objections — Dismissalin limine — Poll of over 50% of the registered voters as a legal bar to avoidanceof election — Section 91(a) of the Presidential Electiors Act No. 15 of 1981:
^General intimidation: Other circumstances in consequence of which the majority .of electors were or may have been prevented from electing the candidate whomthey preferred — Non-compliance with provisions of Presidential Elections Actas a ground for avoidance of election — Does such non-compliance fall alsounder 'other circumstances'? — Concise-statement of material facts — Failure toidentify 'or name candidate whom the majority preferred but were or may havebeen prevented from electing whom they preferred — Sufficiency of pleadings.
The petitioner one of the unsuccessful candidates at the Presidential Election of1988 sought to have the election of the returned candidate the 1st respondentdeclared .null and void on the grounds of. general intimidation S. 91 (a) of the' Presidential Elections Act No. 1 5 of 1981 (as amended), non-compliance withthe provisions of the Presidential Elections Act No. 1 5 of 1981 (as amended)and the principles thereof (S. 91(b)) and other circumstances, to wit. failure ofthe Commissioner of Elections (2nd respondent) and/or his staff to conduct afree and fair election in accordance with the provisions of the PresidentialElections Act afQresaid.
To the charge of general intimidation ■ the 1st respondent raised threepreliminary objections:
There was a poll of 55.32% of the registered voters and therefore inlaw the election cannot be avoided under S. 91 (a) of the PresidentialElections Act:
The petitioner has failed to identify or name the candidate whom the'majority preferred but were or may have been prevented fromelecting:
■ 3. The petition does not contain a concise statement of material facts. (S. 96(c)),
The 2nd respondent raised preliminary objections on the same linesas 1 and 3 above.
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0n the question of non-compliance with the provisions of the Presidential .Elections Actboth respondents raised the objection that'the petitioner had failed’to aver a material fact relating to an ingredient of the charge under section91(b). namely how the acts of non-compliance'with the provisions of the-Actaffected the result of the election. –■■
On- behalf of the petitioner it was submitted that the Supreme Court cannot'dismiss an election petition in limine,
Held
The Court’ has power to dismiss an election petition in limine if there is afundamental defect in the petition arising out of non-compliance with amandatory provision, Although not sd stated the power to dismiss the petition,for such nori-compliance is inbuilt in th'e mandatory, provisions. .
Public interest in the'litigation doe.sjipt' postulate- an order on.’a preliminaryobjection being made only at the conclusion of the trial of the petition. Jusi asmuch as the public have interests in the election petition there is also theprinciple that the election of a candidate s'hould'snot be Ifghtlyinterfere'd with.
Mere proof of the several instances'or acts of general intimidation would not
suffice to avoid.an election. In addition the petitioner must prove that theseseveral acts'or instances had the result- or consequence that the majority ofelectors were or may have been prevented from electing the .'candidate whomthey preferred-.•. ''
The caSe.of the petitioner based oh the ground of avoidance under section91 (a)—general intimidation and other circumstances—falls to be determinedsolely by a consideration of the provisions contained in section 91(a). l'
’■' T'■■■?.i( "
The. petitioner's case i's'one- of preventive-'iotimidation and not coerciveintimidation.
In a case of general intimidation the question that arises is—from the provedacts of intimidation of electors, is it reasonable to.suppose that tfie result of the
. election may have been affected? This, it seems to us. to be the true meaning of" the-words, "the majority may have been prevented from electing the candidatethey prefer ". But. it will be open to the returned eandidate*to'Show that th'e grossintimidation could not possibly have affected the result. 6
6.In a charge of general intimidation particular's need not be given. Only aconcise statement of material facts is necessary, Only the,nature and extent ofthe-intimidation is. The nature of the alleged intfmidation has been furnished,namely actual violence or threats of violence—bomb explosions, shootings andkillings, posters threatening’voters; and announcihgvcurfews etc., The extent of
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the alleged intimidation has also been given, namely, that it was generallyspread over 20 electoral districts. Therefore there has been sufficientcompliance with section 95(c) of the Act.
The charge under section 91 (b) postulates three ingredients:
• 1. Non-compliance with provisions of.the Act:
Failure to conduct the election in accordance with the principles laiddown in such provisions:
Such non-compliance affected the result of the election.
The petitioner has set specifically numerous acts of non-compliance with-reference to the specific provisions of the law pertaining to thesecontraventions. The principles in accordance with which the election has tobe, conducted are those laid down in the provisions of the.Act. What theseprinciples are. is a matter for the Court.
A consideration of the totality of .the averments in' the petition makes it. inour opinion, quite clear that the petitioner's complaint is that the said acts of
. non-compliance did operate to adversely affect her. It does not seem to us to beopen to thev1 st respondent to urge that the petition does not. on the face of it.make it clear what the.case .is that he. the 1st respondent, has to meet. Thepetitioner/has set out facts which are material and are necessary for the proof ofher case.'The'facts and circumstances pleaded are sufficient to enable the 1strespondent to make the necessary inquiries and obtain information to defendhimself.
9/ The-words "other circumstances" are wide enough to include instances ofnon-compliance with the law relating to. the'conduct of elections. The petitionerwas entitled to .plead instances of non-compliance to. sustain a charge undersection 91 (a) of the Act. Section 91 (a) and sect.on 91 (b) do not cover the samearea nor are they in conflict or repugnant to each other.
Cases referred to:
1'.. Rambukwelle v. Silva 26 NLR 231.251. 252.
2., Saravanamuttu v.;De Mel 49 NLP 529, 532. .
Wijewardena v. SenanayakeQQ CLW 1 ,^4. 5 affd-in appeal: 74.NLR 97. 101
Aron v. Senanayake ,40 NLR 257.
Coorayv. Fernando 54’NLR 400 ’ '
Nanayakkaray. KiriellaA 985 2 Sri.LR 391
Kobbekaduwa v. Jayewardene 1983!1 SriLR 4l6
5cBandaranaike v. Pretnadasa (Ranasinghe. C: J.)243
Samar Singh v. Kedar Nath 1987 SCC 663
Arthur Hussain v. Rajiv Gandhi 1 986 SCC 3 13
Guildford (1869) 1 0'M & H 13. 15
Bradford (1.869) 1 O'M & H 35. 40
Dudley (1874) 2 O'M & H .1 15. 119. 120. 121 .
13 Nottingham (1869) 1 O-'M & H 245, 246
1 4.- North Durham Case (1 874) 2 O'M & H 1 52. 1 56. 1 57.
Gloucester (1 886) 4 O'M & H 65. -68
South Meath Case{ 1 886) 4 O'M & H 130! 139, 141 -1 7. Illangaratne v. G. E. de Silva 49 NLR 169'
Abeywardene v. Ariya Bulegoda 1985 T-.Sri LR 86
Jayasinghe vidayakody (1 985) 2 SriiLR 77, .8920- Drogheda Case (1869) 1 O'M & H 252. 255, 256
Riitnam v.M. Dingiri Banda 45 NLR: 145
Pelpo/a v. R. S. S. Gunawardene 49 MLR 207
Tarnolis Appuhamy v. Wilmot Perera .49 NLR 361.
24 -North Louth Cased 911)6 O'M & H 124'
-25,. Shiv Charan Singh v, Chandra Bhan Singh andothers 1 988 2 SCC 1 2
Hackney Case (1872) 2 O'M & H 77
Lichfield Case (1869) 1 O'M &H'22?24
Morgan and others-v. Simpson and another.1974 3 AH ER 722
Munasinghe v. Corea 55NLR.265
30: Eastern Division of the County'of Clare {1 886) 4 O'M & H 1 6231. Woodward v. Sarsons (1875) LR 1 0 CP. 733
Presidential Election Petition — Preliminary Objections.
H. L: de Silva PC. with R. K. W. Goonesekera. A. A. de Silva. Sidath SriNandalochana-, Percy Wickremasekera. M. W. Amerasinghe.
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S. L.. Gunasekera. Nihal Jayamanne. J. Yusuf, Chapipani Padmasekera & Colin-Senerat Nandadeva instructed by Nimal Siripala de Silva for petitioner.
K. N. Choksy PC with P. Nagendra PC, Sunil K. Rodrigo. S.C. Crossette-Tambiah,Kosala Wijayatileke, Naufel Abdul Rahman. Daya. Pelpola, S. J. Mohideen. RajaDep. D. H. N. Jayamaha. S. Mahentiran. Lakshman Perera. A. L. B. BritoMutunayagam & M. Iliyas instructed by S. Sunderahngam for 1 st respondent.
Sunil de Silva PC Attorney-General with THak Marapona PC Additional Solicitor-General. Shibley Aziz PC Additional Solicitor-General. K.C. Kamalasabayson.Deputy Solicitor-General.
29 May 1989.
Ranasinghe C. J. read the following unanimous
ORDER OF THE COURT ON THE PRELIMINARYOBJECTIONS RAISED BY THE RESPONDENTS:
The election for the office of'President of Sri Lanka was held onthe 19th of December,' 1988. There were three candidates.
. Sirimavo R. D. Bandaranaike of the Sri Lanka Freedom Party.Ranasinghe .Premadasa of the United National Party and OswinAbeygunasekera of the Sri Lanka. Mahajana,' Party.. TheCommissioner of Elections declared the results as follows:—
Oswin Abeygunasekera..Sirimavo BandaranaikeR. Premadasa
23571904.6%
2289860-'44.95%
2569199.50.43%
Valid Votes5094778
Rejected Votes91445
Total Polled5186223,
Majority .2,79339
Total Registered Votes9375742
Total Polled/Re'gistered Votes
55,32%
On 9.1.1989, Sirimavo R. D. Bandaranaike filed this petition– and has. sought to have the election of Ranasinghe Premadasa■ declared null and void on'-the following grounds':—
Paragraph 6 (A) That by reason of the occurrence, of the. incidents hereinafter mentioned and, the
SC vBandaranaike v. Premadasa (Ranasinghe. C. J.)245 –
commission of the acts hereinafter specified in•paragraph 7 hereof, there was general,intimidation Of'the electors at the aforesaidelection in consequ.ehce of which, the majorityof the said electors .were or may have'been ■prevented from , electing the candidate whomthey preferred.
Paragraph 6 (B) That by,reason of non-compliance with the.
provisions of the Presidential Elections Act No.15 of 1981 (as- amended) the aforesaidelection was hot conducted in accordance withthe principles laid down in the sajd provisionsand . as hereinafter specified ^ and asparticularised .in paragraph 8 ^hereof; whichacts of non-compliance affected the result, of..the1 election ' and the said election is inconsequence null and void.
Paragraph’6'-(C) That by reason of other circumstances to wit,the failure’of the Commissioner of Elections-'■(the 2nd Respondent) and/6r'certain membersof his staff to conduct ,a fair and free election,in accordance with, the- provisions of thePresidential Elections Act No. 15 of ' 1 981 imore particularly set out in paragraph-9 readwith paragraph 8 hereof, the majority of, thesaid electors were or may have beien prevented,from electing ‘the candidate whom " theypreferred. –
To this petition, -the said Ranasi.nghe. Premadasa,. the .successful candidate, has been made the 1st Respondent,, andthe Commissioner of Elections, has been , made, the ’2ndRespondent.
.. As regards the charge of general intimidatipn.,the petitioner in',her petition has enumerated, 1.37 instances oTacts of violenceand intimidation spread over 22'Elec.tora.l!vDistricts.;ln paragraph7 of her petition, the petitioner states that these instances,"vyhich
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occurred in various parts of the country either shortly before oron the day of the poll and which were of a widespread natureaffected the freedom of election and prevented the free exerciseof the franchise rendering the election of the First Respondentnull and void, under paragraph (a) of section 91 of the said Act."
Preliminary objections have been filed by both the 1st and 2ndrespondents and they have asked for a dismissal of the petitionin limine. The objections of the 1st Respondent pertaining to thecharge of general intimidation are as follows:—
As 55.32% of the total registered voters have polled, thepetitioner cannot in law. on the basis of the avermentspleaded in the petition, seek to have the election declaredvoid oh the ground of avoidance set out in S. 91 (a) of thePresidential Elections Act No. 1 5 of 1981.
'(b).The petitioner has failed, as required in terms of S. 91 (a) andS. 96(c) of the said Act to identify or name in the petition, thecandidate who the petitioner alleges the majority of the
electors preferred but were or may have been prevented from
■ electing. A mandatory provision of law has not been
complied with and, therefore, the petitioner cannot rely onthe ground of avoidance set'out in S. 91(a).of the said Act.'
The'petition does not contain a concise statement of material
facts'upon which'-the petitioner relies’and. therefore, hasfailed to conform io the mandatory-provis.ions of S. 96(c) of
■. … the Act.'
The objections of tine 2nd Respondent pertaining to the chargeof general intimidation ar.easlollows:—
Since over 50% of the electors have exercised their right toelect a’ candidate yyhom they preferred, the allegationcontained in paragraph 6'(a) cannot be maintained in law-.
' The. petition.dp.es not contain a cohcise'statement of material
facts as required by S. 96(c) ofthe'Act. in that, the petition.does- not contain an averment that the acts of generalintimidation affected any particular candidate. As a matter ofTaw, itcannot be maintained that by reason of these acts, themajority of electors.were or may have'been prevented from'.electingihe-candidate whom they preferred.!
■S. 9 T"of the Acts' states, inter alia:–
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‘The election of a.candidate to the office of President shall bedeclared to be void on an election petition on any of thefollowing grounds which may be proved to the satisfaction ofthe Supreme Court, namely:—
that by reason of general bribe'ry.'genetal treating, or generalintimidation, or other misconduct, or'other circumstances. .. whether similar ‘to those before enumerated; or not. the.
majority of electors were or may have’been prevented from. electing the candidate whom they preferred;
– (b) non-compliance with the provisions of this Act relating toelections, if it appears that the election was not conducted inaccordance with the principles laid down in such, provisionsand .that such non-compliance affected the .result of the•election."
S*. 91 (a) and (b) are in term's identical with Si 77(a). and.(b) of
the Ceylon (Parliamentary Elections) Order ih'Gouncil; T94'6.^
S. 96'o'f the Act states:
"An election petition—
(cj s'halhcontain a ooneise statement of the-material facts onwhich .the petitioner relies:’ •
'‘Shall set forth full particulars of any corrupt-Or illegal practicethat the petitioner alleges,' including as full a statement aspossible of the names of the parties' alleged to havecommitted such corrupt..or' illegal practice, 'and shall beaccompanied by an affidavit in-support of the allegation of■ such corrupt or illegal practice and the date and place of the!'commissi6n;of such practice;
Provided, However-, that-nothing in' the preceding provisions of.this section shaU .be deemed or.construed to require’'evidence-to be stated ifi the petition." .
fThis again is a:reproduction of S..80 B(c), (d) and the proviso
of the 1946 Elections Order in Council'.
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At the argument before us. Mr. K. N. Choksy. P.C.. for the 1st
Respondent submitted:—
The petitioner must prove that by reason of general
intimidation, a certain result or consequence followed,namely, that "the majority of electors were or may have beenprevented from electing the candidate whom they preferred."This is an important ingredient of the ground of avoidance inS. 91 (a) of the Act. If so: the petitioner must identify thecandidate whom the- majority of electors preferred, but wereOr may have been prevented from electing by reason ofgeneral intimidation. •-
This is a material fact which the petitioner must prove and if itis a'material fact to be proved, then it must be pleaded. In atotal of 137 instances of acts of violence and intimidationalleged in the petition, only in 30 instances has the petitioneraverred that the violence was . directed against SLFPsupporters, thereby implying that the petitioner was thecandidate whom the majority of electors preferred.
In three instances only has the petitioner alleged that theviolence was directed against the SLMP- supporters. The.balance 104 incidents are "neutral" incidents and it is notstated • whether the violence was directed against thesupporters of any political party.
The petitioner must prove against, whom the generalintimidation was directed. If so. it must be pleaded.
In addition, the petitioner must plead .and prove how themajority of electors were or may have been prevented from
. electing the candidate whom they preferred. That is. thepetitioner must plead and prove that the majority of electorswho voted for the 1st respondent were or may have beencompelled to vote for him by reason of general intimidation,or that the balance 45% of the electors abstained from votingbecause of general intimidation. and; if they, had voted, thereasonable probabilities are. that they would have voted forher. This is a material fact which the petitioner must prove,-and if so it must be pleaded.
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Bandarana ike v. Premadasa (Ranasinghe. C. J.)
249
{
In three instances, it is alleged that the violence was directedagainst the SLMP candidate. The election was a three-cornered contest. The . petitioner must further plead eitherthat the SLMP candidate-was the candidate whom themajority, of electors, preferred or that his supporters were,induced to vote for the 1 st .respondent by reason of generalintimidation. The 1st respondent must know whether it is thepetitioner or the SLMP candidate whom the majority ofelectors preferred, otherwise the. .petitioner was free to'change her position as the trial proceeds.- .
In some of the instances of general intimidation set out in thepetition, material facts such as the dates, time's and places ofthe incidents-.' the names of persons intimidated- and thenature of the intimidation have not been furnished. The.petitioner has failed to conform to the mandatory provisionsof S. 96(c) of the said Act, •
Rules 4- (which prescribed the form of petition)'and 5 (whichenabled the- respondent to obtain particulars) in- the 3rdSchedule to.-the Ceylon' (Parliamentary Elections) Order inCouncil. 1946. were deleted and a,-new S. 80B wasIntroduced. It is in terms identical with S.-.96 of the Act. It is a
• mandatory provision. The petitioner cannot, amend thepetition- after ■ the period for the filing of a petition, haselapsed. Failure to comply with S. 96 (c) has the result.of
■ dismissal of the petition. ■
The. learned Attorney-General .in- support of the. 2ndrespondent's objections also submitted that the petition does notcontain a concise statement-of material facts, in that, thepetitioner has not avefredthat the acts of general intimidationaffected any particular candidate.'That is, the petitioner has notaverred the manner in which the majority were or may have beenprevented-from electing the candidate whom they preferred.
Mr. H. L. de-Silva, P.G., for the petitioner, oh the other hand..-submitted as follows— ■.
(1) The English Common Law of a "free and fair election" is whatis-ennbodi'ed in S. 91(a). The expression "majority of electors
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were or may have been prevented from electing thecandidate whom they: preferred "means" a majority ofpersons entitled to vote free of intimidation' and otherpressures, were prevented or may have been prevented from •electing a candidate according to their preferences: Theexpression- does not impose an additional burden on thepetitioner. If general 'intimidation is established, thenecessary consequence flows — that the majority wereprevented from electing the candidate of their choice. All that■ the petitioner need establish is general intimidation: oncegeneral intimidation is established, free choice goes.
In this view of the matter, it is not necessary to identify thecandidate-whom the majority of electors would or may.havepreferred. Moreover, how the voters would have voted underdifferent circumstances-is impossible of proof. Unlike in thecase of the statutory offence, of undue influence, where theremust be an indentification of the individual affected by theintimidation, in. the case of general intimidation, theidentification of victims is difficult and is not necessary.Furthermore.-it would violate the principle of secrecy of theballot which, is enshrined in Article 93 of the Constitutionwhich enacts that "the voting for the election of the Presidentof the Republic sh'alf.be free, equal and by secret ballot." Avoter cannot be asked for whom he would have voted, if
. there was no genefal intimidation.
Election must not only be. "free” but also "equal", whichmeans not only the majority of electors but also the minorityof electors too must have the freedom of election. The,minority .in-the constituency, has as good-a'right without fearor intimidation to come to the polling booth as the-majorityof the constituency. –
Articles 11.8(b) and :130(a) of the Constitution confer on theSupreme Court jurisdiction in respect of election petitions..Article-136(1) empowers, the- Supreme Court to make rules
-:. as to proceedings in the Supreme'Court in the exercise of itsv several jurisdictions conferred by the Constitution including..inter alia, the disimissal of such matters-for non-compliance
SC-Bandaranaike v. Premadasa (Ranasinqhe. C. J.),25 T
— –
with such rules. The Supreme Court Has up to now made.. no such rules. Rule 1 1(4) in the 4th Schedule to Act No.15 of . 1981 expressly provides for. the dismissal of anelection petition for non-payment of security. Apart fromthis, the -Supreme Court,, cannot dismiss a petition inlimine. Apart from this, once- an election petition' is.-presented, the matter cea.stes to be one exclusively betweenthe petitioner and the respondent, it becomes a matter, inwhich the whole electorate, not to say the whole country,has an interest.,.~
We shall deal first with President's Counsel Mr. H. L. deSilva's submission that the Supreme Court canpp.t dismiss anElection'Petition in.limine.
' Article 1 36 of the Constitution states:.
Subject to the provisions of the Constitution' and of any' law, the Chief Justice with1' any three-Juclges' of theSupreme Court nominated by him; may, from time to time,make rules regulating generally the practice and procedUre• of the Court including —
rules as to the proceedings in the Supreme Court andCourt of Appeal in the exercise of'the severaljurisdictions conferred on 'such Courts by theConstitution or by any. law. including the time-within■which such matters may be instituted or brought: before such Courts and the dismissal of'such blattersfor non-compliance with such rules.
It-is not disputed that the'Sup.reme Court-has not rhade.-rulesas to proceedings, in the-Supreme Court in.the exercise of its.jurisdiction in election petitions relating to the election, of the.President, conferred on it by Article T30(a) of the Constitution,including, inter alia; the dismissal of petitions for non-compliance with the' rules. The only express provision for thedismissal of an election petition in limine is Rule 1 1(4) in the4th.Schedule to the Presidential Elections Act,..No.-1 5.of 1 98;1for non-payment of security or inadequacy of security as
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provided for in Rule 11(1). Therefore. Mr. H. L. de Silva. P.C..argued that, except for non-payment of security, the SupremeCourt cannot dismiss an election petition at the preliminarystage.
Mr. H. L. de Silva, P.C.. also submitted that our Courts haverepeatedly said that an election petition inquiry is not merely acontest between two' litigants. It is not an investigation inwhich the petitioner and the returned candidate alone areconcerned, but the voters also have rights as well as thecandidates. The electorate is entitled to have the results of theelection declared according to law. (See Rambukwelle v. Silva.
1); Sarvanamuttu v. de Met ^).
' Mr.' H. L. de Silva. P.C. further submitted that S. 98 casts aduty on the Supreme Court, at the conclusion of the trial of an'election. petition, to make a determination whether thereturned candidate has been duly elected or whether theelection was void, and also to make a. report as to corrupt orillegal practices: that Rule 20 in the 4th Schedule permits awithdrawal of an election petition only with the leave of Courtand . Rule 23 permits for' substitution of any person as.petitioner on withdrawal of .the petition; and.that even if beforethe trial .of a petition, the President dies, resigns or does hotoppose the petition, the petition does not abate but continuesto. be heard. These provisions, Mr. H. L. de Silva. P. C.contended-, indicate that Parliament did not contemplate thatthe Supreme Court should assume, a power to terminateelection petition proceedings at-the threshold of the inquiry,and that if'an objection is-taken that a concise statement of' material: facts as-required (by- S:’96(c) of the-Act-has not beenburnished by the petitioner,-a decision On the objection should:be made-Jonly after the conclusion of the trial. He also stated• that, assuming that the petition does contain-, insufficientmaterial, the Court has inherent power to permit amplificationand correction, and that if particulars' of'any corrupt or illegal^practice’ specified in the petition by S„ 97 (1) of the Act can- be- amended. or amplified; an insufficient statement, of facts,rehould-pot be.-treatedcdifferently, . ,
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Mr. Choksy. PC.. on the other hand, submitted that S. 96 (c) ofthe Act is a mandatory provision and our Courts have giveneffect to the mandatory rule, that failure to comply with amandatory provision renders the proceedings a nullity. Hequoted Maxwell (11the Edn. p. 364) — "An absolute enactmentmust be obeyed or fulfilled exactly but-it is sufficient if a directoryenactment be obeyed or fulfilled substantially."
Mr. Choksy. P C., further argued that if a S. 96 (c) of the Act isimperative, there is inbuilt in that very provision, the power of theCourt to dismiss the petition: that therefore it is unnecessary forthe Supreme Court to make a rule under Article 136 (1) (b). forthe dismissal of the petition, that Article 136(1) states that"subject to any law, the Supreme Court make rules" and as therule of interpretation is already there inbuilt in the provision, thenecessity to make a rule does not arise; that this Court has noinherent power to permit an amendment .of the petition and allowthe petitioner a further opportunity of supplying the deficiency ofmaterial facts. The petition, he said, is one single petition and if.material facts have not been given in respect of one charge inthe petition, the whole petition is rendered a nullity.
We agree with Mr.. Choksy that S. 96 (c) is an imperativeprovision and not merely directory (per Samerawjckrame. J. inWijewardene v, Senanayake. (3) Though the Ceylon(Parliamentary Elections) Order in Council. 1946 contained Rule12(3), which is in terms identical with 11(4) of Act No. 15 of1981, and it was the only express provision for the dismissal ofthe petitions, our Courts have dismissed election petitions fornon-compliance with the mandatory provision in Rule 1 5. of theRules which requires service of notice of the petition and a copyof the petition -, on the respondent within fen days-of thepresentation of .the petition,,though the consequences of non-compliance has not been stated. (See Aron v. Senanayake WCooray v. Fernando (5). Nanayakkara v. Kiriella (6) So also,election petitions have been dismissed for- non-joinder ofnecessary parties, though in both the 1946 Order in Council andin Act No. 1 5 of 1 981. the consequence of the failure to complywith the mandatory provision regarding joinder has not beenstated. (See Wijewardene v. Senanayake, Kobbekaduwa v.Jayewardene,
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We agree with Mr. Choksy that non-compliance with themandatory provisions of non-joinder of necessary parties., andnon-service of the notice of presentation of the petition and acopy of the petition, are fundamental and fatal defects whichrender the whole petition bad and a nullity, and the power todismiss the'-petition is inbuilt in those mandatory provisionsthemselves. The question whether in.a petition consisting, say ofthree charges, as in this case, the failure to furnish material factsin respect of one charge only, renders that charge only bad andwould preclude further evidence being led by the petitioner inrespect of that charge only, or, whether it renders the whole. petition a nullity and precludes.further proceedings on it will onlyarise for' decision if this Court decides that the petitioner hasfailed to furnish material facts in respect of any one of thecharges.
•As regards the submission of Mr. H. L. de Silva, P.C., based onpubjic.interest in’the litigation and that an order on a preliminaryobjection could be made only at the conclusion of the trial of thepetition, it is. a contention we cannot accept. As Mr. Choksypointed out, there ar.e other mandatory provisions in Act No. 15of 1981, Only a candidate at an election or a person who signedthe nomination paper • can present an election petitionchallenging the election of the President (S. 93). The petition hasto be presented within 21. days of the date of publication of theresult, of the election (S. 102 (1)]. The petitioner shall join thereturned candidate as respondent to the election petition (S. 95).The consequence of non-compliance with these provisions has.. not been set out. If a petition is presented, say by a voter, or thereturned candidate has not been made a respondent or thepetition is presented two months after the date of publication ofthe result, does that mean that this Court has to proceed with thetrial on the charges in the petition, and at the conclusion of thetrial dismiss' the petition because the wrong person haspresented the petition or because no adverse order can be madeagainst the returned' candidate without him being heard, orbecause the petition is out of time? For this is the consequenceof Mr. H. L. de Silva's argument. ;'
Just as much the public have interests in the election petition,there is also the principle that the election of a candidate should
sc
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not be lightly interfered with. In Samar Singh v. Kedar Nathi%), itwas contended that the C'ourt has-no-power to reject an electionpetition in limine on a preliminary objection but must'proceedwith the trial, record the evidence,, arid oply aftef the trial of thepetition is concluded, reject a defective petition. The SupremeCourt in rejecting this argument observed that "it'would be in theinterests ofthe parties to the petition and to the constituency andin the public interest to dispose of preliminary: objections and toreject an election petition if it does riot disck>se’'ahy cause ofaction."
In Arthur Hussain v. Rajiv Gandhi (9). when a similarsubmission was made, the Supreme Court-rejected the:argumentas untenable and observed that the powers'(to reject an electionpetition- in-limine) in this behalf are meant-to be exercised toserve the purpose for which the same haye'been conferred onthe competent Court so thafthe litigation-comes to ari erid at theearliest and the concerned litigants- are ‘relieved 'of thepsyc.holdgiGarburdeh.of the litigation-so'-as to, be free' to followtheir ordinary pursuits and’discharge their'duties.-And so thatthey can adjust their affairs on the foofingdhat the litigation willnot make demands on their time or resources, will not impedetheir future vvork, and they are free to undertake and fulfil othercpmmitments. So long as the sword of Damocles of the electionpetition-remains-hanging, an elected representative.-of thelegislature Would* not feel sufficiently free to dev.ote his whole-hearted attention to matters of public importance which clamourfor-his attention in his capacity as an elected representative ofthe concerned' constituency.".
– VVp take the view that the Court has the power to reject ari election
petition in limine,’if; there is;a.:fundamental defect in'an election
petition -arising''- out of non-compliance with a mandatory
provision.'
. ' <
What is the' English Common Law regarding'the avoidance ofelection's? In Guildford ^ ^ Willes. J.^said
"But do rio't be mistaken'-'. ! . . . that general-corruption quite
apar-t-from acts of the members or their agerits'woufd not
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have the effect of vitiating an election. It clearly would,because it would show that there was no p.ure or freechoice in the matter, that what occurred was a sham, andnot a reality."
In Bradford^ ^ Baron Martin said :
"But it has been- long held, before these Acts of Parliament. passed at all. that by the common law of the land, that is. lawnot created by the enactments of Acts of Parliament,bribery, undue influence, and undue pressure vitiate anelection. So that if it. had been-proved that there existed in'this'.town generally, bribery to a large extent, and that it-came from unknown quarters, that no one could tell .where■ it hasd come from, but that people were bribed generally andindiscriminately; or if it could be proved that there wastreating.in all directions on purpose to influence voters, thathouses were thrown open where people could drink withoutpaying, for it, — by the common law such' an election, wouldbe void, because it would be. carried on contrary to the, principle of the law."
In Ducf/ey (2)tGrpVe, j. observed :
v . -• r *
"The sole allegation in the petition although it is conveyed in, a. vast number of words is substantially that there was somuch riot.and intimidation by mobs-that there was not afree election. I. have a duty not only to these two parties, butthe voters, to the public generally, to see that the franchisecan be fairly exercised …. What I have to look at iswhether there was such a substantial riot and tumult as. prevented any large number of the electors from voting ….-.. Assuming the facts to be so. and assuming also.that therewas such a state of things as really placed the whole townin a state in which reasonable men. who were not veryzealous, partisans, or men of extraordinary courage, had nota fair opportunity of voting, it is clearly laid down in thecases, that quite irrespective of any agency on the part ofthe. candidates, intimidation that prevents free voting avoidsan election ….. I am of opinion that the tumultous
SCBandaranaike.v. Premadasa (Ranasinghe. C:J.)257
assemblages gathered' together,*.'and the acts of extremeviolence •committed at .the polling, places were such as werecalculated .to intimidate1 and deter, and did‘intimidate anddeter a large number of voters from exercising 'thefranchise, and that, very many voters' were actually,prevented from exercising it. that the election was not a free-one. and that the constituency had not a fair opportunity offreely exercising .the- •fran'chise, therefore this election isvoid."
In Nottingham•(.■'•3) Baron Martimobserved :
"No doubt: if – rioting takes place to1 such : an extent thatordinary, men. haying-.the .ordinary nerve -and1 courage ofmen. and thereby prevented;from:recording:their votes' theelection is void by the common law. for the common law•provides that-an election should be-free in thesensethat all' persons shalli have an opportunity of co'mingto the poll andvoting^.without feanvor .molestation.1. But for fthe purpose it -must .be a ;rioting to a.n-exten.t‘ certainl.yt-.to' deter, a man ofreasonable nerve from going to the poll."
In North Durham (1^)' Bar.o;n Bramwell said :
"First of all. there is the statutory intimidation that is,contemplated.1 by'rthe statute,-if''one''.may use -such anexpression, that is. an intimidation contemplated' by thestatute which avoids the seat, where a candidate or his-agenti is guilty of. it-i But besides that-there is anotherintimidation.-,- that has .'been " called a', common lawintimidation apd it applies,to a'Case’where the intimidationis of such – a character, so general and extensive in itsoperation’that it cannot be said thaFthogolling was a fairrepresentation Of the opinion of the constituency in whichthe 'intimidation"topk place."
In Gloucester-^ 5) Field, J. said :.
•"It seems to me that the-guestion which-1 have.to decide iswhether':a.lhthe electors Of-the other divisions of the
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constituency are to be disenfranchised for what was done inthe three divisions, and a fresh election held with all itsturmoil and excitement. That will have to be done if I amsatisfied that there has not been that free exercise .of thefranchise which everybody is entitled to have, and that theabsence of that has been caused by intimidation and riot."
In the South Meath Case (1 6) Andrews, d. said :
"Freedom of election is at common law absolutely essentialto the validity of an . election, and if this freedom beprevented generally the election is void at common law.' andin my opinion it matters not by what means the freedom of.election. ;may have been destroyed. This is. wholly'independent of statute lavv."
From the observations made-in the said cases, it-seems to usto be clear that at English Common Law;-where it-was. provedthat; bribery, treating or- intimidation were so general and soextensive in its operation that it prevented, men of ordinary nerveand courage from going to the poll; whether or-mot thesuccessful candidate or his agents were responsible • for thecorruption or violence; the election was set aside on the groundthat it was not free.
*''•. !v
■Rogers On Elections.{Vol. 2, 2Qth-Edn-.. p. 341);-. succinctlystates the common law as follows:.
;"Freedom of- Election is at common law essential to thevalidity, of an election. If-this freedom- be by any meansprevented generally, the election, is void at common law.Therefore-general intimidation, although not brought homert'o the candidate or- his agents will avoid, an election."..
In England, the common law has now been .superseded byS. 142 of the Representation of the People Act, 1949, whichenacts:.’ •.
; Sf -14.2 (v1) "Where on an election petition it is shown thaticonnupt ,ar illegal practices or i 11 e.g.a.l payments.
SCBandaranaike v. Prewadasa (Ranasinghe. C O259
employments or hirings committed tin reference to: theelection for the. purpose of promoting or procuring theelection of any person thereat haye so extensively prevailedthat they may be reasonably supposed to have affected the. result.-.his election, if he.has been elected, shall be void andhe shall, be incapable of 'being elected to^fiM the vacancy orany of the vacancies, for which the election was held. –
An election shall not be liable to be avoided otherwisethan under this section by reason .of general corruption,bribery, treating or intimidation." ; >• . . ,
The English Law.,, therefore.'.now, requires in,p,rder..to avoid anelection.that in addition to corrupt or illegal praptices etc. anadditional requirement to be proved,, namely, that the. corrupt orillegal practices, etc.' were cqrnmjtted for. the ^purpose, ofpromoting o.r procuring the electidp-.oit a.candidate that they maybe so reasonably supposed to have^iaffected t.be;result.
the question arises whether S..91, (a) of the/^ct.. embodieswhat, Mr H. L. de Silva. PC., described as the "pure andunadulterated English.Common'Law" prior to ,1 949;,.pr. as Mr.Choksy submitted, that in addition to general intimidation etc.something, mpre has to_.be proved by a- petitioner ..to have anelection avoided. unde.r^ S. 91 (a).
* _*■' ‘• ; *.* h •,, .- i ' .* 1,
K.ln Illangaratne V- G. E-. de Silva -H7). the petitioner .alleged,under S. 77 (a), of. the Ceylon (Parliamentary Elections) Order inCouncil, 1946,.tlpat owing tqtoireumstancestarising;fr,6m floods'and the-housing of, the refugees in camps, "the majority ofelectors.iwere, or may-have.-been prevented frorp electing thecandidate,,whom they preferred." It . was. contended. f.or thepetiti.onerthaf (1.) by reason of-the.circumstances attending thefloods the refugees, yyere not in. a mppd for vpting;,.(2) that, the .respondentias Minister of Health,and his sop as Mayor of Kandy,•in seeing-to the housing- and- comfort.pf the refugees, had anunfair electoral advantage over, the petitioners., so.: that theelectors, voted or mayhaye voted for the respondent who would.otherwise ; have, voted for another, candidate. All thesecircumstances,.it .was,argued, had the result,that the "majority of
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electors were or may have been prevented from electing thecandidate whom they preferred." After considering the evidenceon the first point Windham. J. held (p. 184)—
"I cannot hold on the evidence that the majority ofelectorate were or may have been prevented from electingthe candidate they preferred by reason of the circumstanceshaving prevented them from voting for any candidate at all."
On the second point, after considering the evidence.Windham. J. held (p. 186) :
"I do not think that the petitioner has proved his case uponthis charge."..
'J i.
In Abeywardene v. Ariya Bulegoda. 8) it was held that"General intimidation is concerned not with the intention withwhich the acts are compnitted" as in the case of undue influence,but with the result. Did the acts taken cumulatively have theeffect of preventing the electoral process?"
In Jayasinghe v. Jayakody. 9) Sharvananda. J. observed :
"The petitioner has also stated that the election of the 1strespondent is void on the ground that by reason of generalintimidation the majority of electors may have beenprevented from electing the candidate whom they preferred…. In order to succeed in his petition, the petitioner hasgot' to prove a■ further ingredient, viz., that the majority ofelectors may have been prevented from electing thecandidate whom'they preferred in order to succeed in hiselection petition. ■ The corrupt 'practice referred to inS. 77 (c) has a consequence different from that of thecorrupt practice that may be exhibited by generalintimidation under S. 77 (a). If it is proved- that a corruptpractice has been committed by the returned candidate oran' election agent or by any other person' with theknowledge or consent of the returned candidate, then theelection judge has to declare the. election void. But if the'.'corrupt practice .has been committed by a person other than
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' the persons mentioned in S. 77 (c). then it must be furtherestablished that the. majority of electors thereby were or. ; may have been prevented from electing the candidatewhom they preferred..'ot the Election Judge to declare theelection void:" (The emphasis is ours). –;
We. agree with'Mr. Choksy that' mere proof of the' severalinstances or- acts of general., intimidation 'would .not suffice to -avoid an election. In additions‘-the 'petitioner-'has to prove that,these several acts'o'r instances'had'the result or cbn'sequence .that "the majority of electors were: or may Have been preventedfrom electing the candidate Whom they preferred."1"' k' '
’Mr. H. L. de Silva relied on’Articl.p 93 .of the Constitution whichdeclares, "the voting for the election of the President "of theRepublic shall be free, equal and by!! secret . ballot." andcontended that the Constitution guarantees not only.that election,
, be frep but also equal; that.freedom of, election is guaranteed not; only toJ the majority bdr to the,minority of ejectors' as, we.ll:>.Herelied on tfpe observations made by^Keogh. J., |rt,.th'e brpghedaCase'(20) 'and .submitted that, what was sa,id by Keogh. J. iis- acorrect,statement of the.lavy. frithis case .it,wa.s argued.that if therespondent 'has' an .actual' -ripajority of ..registered, electors^however.s'rpal.l.-.thp.ejection could not.be declared void. Keogh,; J:dealing withdhis argument- .said :
■ r, ■' .o;•' •!' ■■
"Counsel for the .Respondent contended .. … provided the,•respondent-had!am aptual majority^ of registered electors
be.it ever, so small, then no matter- what happens-outside,no matter hpw, many electors are‘assaulted:.or:driven,from.the polling booth-, no matter hovy many,voters are hunted• through the fields,and, obliged tq,go by devipus ways inorder to get back to their homes, no matter how'much•blood is shed, no matter how much spiritual intimidationhas bee.ri. brought, to bear, upon the electors i.sti.ll, if'thepandidate,- is returned upon ;the polling -. day, can. say,"There-are 1000 electors in the borough,; and I .havejpoljed.f no,.matter how, 5.0.-T of them",, h.is ejection-.capnot.-be declared jyqid, on- the .gr-oupd of general intimidation.
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although the unsuccessful candidate may. upon a scrutiny,by striking off individual votes on this ground, show that butfor the general intimidation he would have had a majority. Ideny that altogether. The humblest individual in the wholeof the constituency has as good a right without fear orintimidation, to come into the Court-house upon the day ofthe election as the richest man upon the register, and asgood a right as the great majority of the constituency. Takeit that a. candidate, has by the most legitimate meansobtained the votes of nine-tenths of the constituency in hisfavour, yet it is of vital importance to the public weal that the■ remaining tenth should be able to record their votes and toexpress their opinions. If the majority are not only to sendtheir, own representative to Parliament, as of course themajority must do. but if they are to drive by terror theminority from the poll what becomes of freedom to thisCountry?"
It is unnecessary for us to decide whether what was stated byKeogh, J. is a correct statement of law or not except to quoteBaron Bramwell in the North Durham Case (14) —'"If one weretold that partial intimidation would avoid an election, thec.onsequence would' be that a few mischievous persons mightupset every’ election." The same Constitution which enactedArticle- 93 also'enacted Article 31(6) (d) which states that asregards the election of the President, Parliament shall by lawmake provision for,- inter alia, the grounds and manner ofavoiding such electidn and of determining any disputed election.Parliament has enacted the Presidential Election Act, No. 35 of198T, and in S. 91 sets out the grounds of avoidance of anelection of the President. The case of the petitioner based on theground of avoidance under S. 91 (a) falls to be determined solelyby a consideration and application of the provisions contained inS. 91(a).
We now proceed' to deal with the submission -that thepetitioner has failed to plead in her petition two material facts,viz.. (T) that the candidate, other than the 1 sf respondent, whowould 'or may-have been returned, -has not been identified. (2)that the majority of electors were or may have been induced to
sc
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263
vote for the 1st respondent by general intimidation or that thebalance 45% of electors who did not vote abstained from votingbecause.of general intimidation and if they voted, they may havevoted for-the petitioner.
S. 96 (c) of the Act requires that the petition "shall contain aconcise,statement of the material facts on which,,the petitionerrelies " In 'Wijewardena v. Senanayake (3) H. N. G. Fernando. C.J.observed that this requirement was "intended to secure that arespondent will know from the petition itself what facts' thepetitioner proposes to prove in order to avoid the election andwill thus have a proper opportunity to prepare for the trial … . . .The term 'material facts' has a plain meaning in the context ofrequirements relating to 'pleadings.. namely, facts material, to.establish a part'y's case.’’The object of the requirement is clearlyto enable the opposite party to prepare his case for the trial sothat he may not. be taken by 'surprise. When’ the petitionerpleaded in paragraph & (A) of her’petition"That "there was generalintimidation in consequence of which the majority-of the saidelectors were or may have been prevented from electing Thecandidate whom" they preferred." is there sufficient information.given-in the petition to enable the first respondent to-identify thecandidate,whom the electors were or may have been prevented.from electing.-?-ln paragraph (1),’the petitioner has,stated thatshe was a .candidate at the-Presidential, Election,-and ."claims tohave had a right to be returned o,r elected at the said election'"The petitioner has set out in paragraph 5 the votes cast for eachcandidate and: that she obtained the second largest n.umber. of .votes, Could there- be- any doubt in .the mind .of the r1strespondent as to the identity of the candidate, who. the petitionerclaims, would or may have been returned, but for the generalintimidation ?
It is clear from the petition that the case of the petitioner is notwhat may be termed, '.'coercive intimidation", that is to say.'intimidation having for its object the use ot force or threats tocompel'voters to vote fora particular candidate. A perusal of the'concise statement of material’ facts relating to the charge ofgenerai intimidation shows that-the incidents set’ out thereinrelate to bomb explosions,-roadblocks.’Shootings and:killings. 'posters warning people not to vote or- announcing a curfew on
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election day, attacks on polling stations, houses of partysupporters and SllFP Branch offices and so on. It is. therefore,clear from the petition that the case of the petitioner is what maybe termed "preventive intimidation", that is violence or threats ofviolence directed towards preventing voters from voting. This. being'the case for the petitioner, the argument of Mr. Choksy.P;C.. that there is no averment'in the petition that the majority ofelectors were or may have induced to vote for the 1 st respondentby reason of general intimidation will have no relevance to thecase we are called upon to decide.
Mr. H: L. do Silva,. .P.C.. referred us to Article 93 of theConstitution which embodies the principle of the secrecy of theballot, namely, that voting.should be secret. Rogers On Elections'(l^th-.Edn, at 347) points out that the difficulties of proving acase, of "coercive intimidation" are much greater than those ofone'of "preventive, intimidation". because "a. voter-may not beasked for whom he voted, whereas he may be. asked :if he wasprevented from voting by fear." –
That brings us on,(to: the submission of Mr. Choksy that thepetitioner must plead and prove that the 45% of electors who didnot vote, abstained-from voting by reason of general intimidation,■and-if they had voted, the reasonable probabilities are that theywould have voted for the petitioner.
What isthe meaning of the expression "the majority of electorswere or may have been prevented from electing the candidatewhom they preferred"? ■'-:
. In Rutnam v. M. Dingiri Banda (21) the respondent won theelection by. a. majority of 1 559 votes. The petitioner, a candidatewho po'ired the second highest number dfVqtes. challenged theelection of the respondent and'in his petition laid the charges of'general intimidation arid undue’ influence.'The petitioner ledevidence^th'af‘large, sections of-electors vy.ere prevented by the/• sup'pbrte'rs, of 'the-respondent, .from recording/heir votes bythreats, of actual .violence.and force. The. election was avoided onboth groUnds-;':Hearne.lJ-,s.aid-(p: 1.55):
scBandaranaikev. Premadasa (Ranasinghe. C.J.)265
"1 have been asked to consider certain statistics1; and tohold that, notwithstanding the intimidation that tookplace, the result of the election eould.not have been' affected, by it. In the.North Durham Case ('1.874, 2 O'M &H at' 157), Mr. Baron BramwelL said "where it(intimidation) is of such a 'general character that Me resultmay have-been affected, in my judgment it. is no!part ofthe duty of<a Judge to enter irito a kind .of scrutiny to seewhether possibly, or-probably even, .or as a' matter ofconclusion upon the evidence, if that intimidation had notexisted, the result would have been different. What theJudge has to do in that case is to say that the burden of'proof is. cast upon the constituency whose, conduct is.incriminated, and unless it can be shown that.,the .grossamount of intimidation could not .possibly have affected■ the result it ought to be declared void.. I hold, that there.. was' gross intimidation, that. it j was widespread, …in the. areas where Mr. Rutnam had good reason to count upon. heavy voting in his favour, and that it may. well haveprevented the1 majority of the electors from returning thecandidate whom they preferred;" (The emphasis is ours)..
IrrPelpola 'v: R. S. S: Gunawardene the respondent vyonthe dleetion by a margin of 387 votes .and the'petitioner, theother' candidate, sought to 'avoid the election oh two chargesof general intimidation and undue influence.The particulars ofthe general charge statdd-"that on polling day. at a number ofplace's in the.electorate, but'mainly' at a place called Uduwella,certain group's of-persons'lntimidated other groups from goingto "the polling'station,'by use and. threats of force, with theresult that the ^majority- of. electors were or may have beenprevented from electing the candidate whom .they-preferred."
T.he petitioner, led evidence that of the 1 /427.registered votersfor the Uduyyella-polling station, only 51 1 voted. He.also ledthe:evidence of. the President of the Ceylon Indian CongressLabour Union'Committee, of Mossville Estate, that on pollingday;: he went with.a number of Indian Labourers to vote at theUduwella polling station and on the'way.they were threatened'
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with assault by a group of 30 villagers: they were obliged toreturn to the estate: at about 4.30 p.m. with police protection,about 300 labourers from Mossville Estate and some labourersof the neighbouring Craighead Estate went to vote and eventuallyOnly 1,50 labourers cast their votes. He further testified that theIndian Congress. Committee of Mossville Estate had decided tosupport the petitioner in the election and all the labourers haddecided to vote ,for him. The evidence of intimidation was not .challenged by the respondent's counsel. Windham. J. said (p.209)::;
"Before, however, finding in favour of the petitioner on the' chargeof general intimidation,it ' is necessary,
notwithstanding the course taken by the respondent, toexamine whether the charge has been made out on theevidence and'in law.' since no election can be declared voidby mere consent of parties to the petition, the wholeelectorate being the persons concerned. In the presentcase-, there can be no doubt to my mind that the petitioner,upon >,the uncontradicted evidence led by him. has'.established ■ his case under S. 77 (a) of the Ceylon('Parliamentary Elections) Order in Council, 1946, namely,that by-'reason of general intimidation the majority of'electors.were or may have been prevented from electing the.candidate whom they preferred. Tlpe- respondent, it will berecalled wa.s -elected, by a .majority of only 387 votes.Counsel for the petitioner,(has stated in his opening address,…and his statement is not.challenged by the respondent, that, .of the 32,734 voters, in the whole electorate, some.8.375,(oyer one'quarter), were Indian labourers, against whom, asa body., th.e acts of intimidation in'the electorate were clearlydirected, by certain misguided'Sinhalese persons …. Only541‘ out of 1.427 voters recorded their' votes- of theUduwella polling station – an unusuaily low proportion, and'•'clearly attributable to the acts of'intimidation, as is shown' By the fact that more person's voted between the hours of 4; -arid;5 p.m. (when the police arrived and escorted labourersto the poll) than dur-irig the 'six-hours from'1 0 a.m. to 4 p.m..
• when''the intimidation had a free hand. Had 400 more' person 's voted?and cast-their votes for the petitioner, the
SCBandaranaike v. Premadasa (Ranasinghe. C.J.)267
latter would have won thie election? Thesefacts are amplysufficient to support a -finding of-general intimidation underS. 77 (a) of.the Order in Council, To establish such acharge, where the general intimidation consists, as here, of.'local acts or threats of: violence, it is only neces.sary'for the.petitioner, to shovy. that.' having regard to the "majorityobtained, and the "strength of'the polling,' theresult mayreasonably be supposed to 'have-.been affected. On thefigures and inothe circumstances disclosed in the) presentcase/'it is at the very least reasonable, to suppose that theresult bftheelectioh may have been affected, by the acts ofintimidation- against the Indian . estate ’labourers:') (Theemphasis is ours). '"' r . • j >: …
In Tarnoiis Appuhamy v:. Wilmot Perera (?3) the petitioners,furnished 45 instances of general intimidation. Evidence wasgiven -o.f 13 instances. 7 of-which occurred^before polling dayand 6 on the day of polling. N.agalingam, J. said (at p. 362. 36.8): •
"Not only, have' the acts relied' upon :by‘- the.'petitioner asconstituting the basis’for the charge ;0f geheral 'intimjdationnot been proved. but’even if full weight be attached to thetestimony’given in Court by the petitioners'withesses/to theextent_of holding-the charges established, it would be clearthat the'..entirety of probf. thus'assumed to have been give'nin favour of the petitioners cannot in law,amount to proof of:the,.c.harge of intimidation'.7.;. . What evidence vya‘s Jed/waslecfto show that the electorate whs subjected to preventiveintimidation, that is .to say. intimidation which had for itsi object the prevention ,of tfje electors,from going tp the. PQllslest the rival candidate gets their vpt^s; IHa,viri.g regard to thenumber polled;(and .tp the circumstance, that this .electoralarea annexed tpltse.lf the.credit of-havipg polled the highestpercentage, of voters.: in a_e.y, electoral area, in the. Isiajjid.M it-certainly would beldiffjcult to convince anyone•Jh.at.vote/s in.general were deterred by anything savouring-of intimidationfrom'going to'theipolls orrreeording their votes.-
Nagalingam. if eife'cHhe bbservafiohs4'.of‘-Gibs'6'n. J.lri’the tyorthSouth Case(24)_ , –.
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"To upset an election for general intimidation it is necessaryto show that there was such general intimidation as mighthave affected the result of the election", and went on to say:
"Local cases are not wanting which illustrate the principlesupon which on the ground of general intimidation. Courtshave interfered in elections. In both the Nuwara Eliya Case(21) and the recent Gampoja Case (22) there was clear■evidence that lacge sections of electors were preventedfrom recording their votes by threats of actual violence and..force used on them. . . the present ease is one far.removedfrom either of these .. . in.these circumstances, there is onlyone conclusion possible with regard to this charge, and thatis that it has not been made out." (The emphasis is ours).
In the. South Meath Case ^ 6) O'Brien. J. said :
"It is a mistake to suppose that where general undue..influence exists, it.must be further shown that the result ofthe election, was. in fact, affected, thereby. It is enough to, show such genera/ undue influence as may reasonablybelievgd to have affected the result." (The emphasis is ours).
S. 91(a) of the Act states th.at an election will be-avoided if it is"proved to the'satisfaction of the Supreme.Court that by reasonof genera.l intimidation, the majority of electors were or may havebeen' prevented from electing the' candidate whom theypreferred." It s'eems to us;that it is for the petitioner to prove thatthere was widespread1 violence' directed' 'towards preventing'electors from voting.'But relief which the petitioner has asked for'under S.f'9T (a) bf'the:Act will' be granted subject to a finding bytrh¥ Supreme bdurt that the-general intimidation' had the effect,namely, that'the "m’aj'ority were'dr may have been prevented fromelecting1 the candid'ate'whom they preferred." It is a.conclusionwhich is placed in the hands of1 the-Supreme Court upon areview! ofr all the evidence. :The petitioner has; in her .petitionpleaded that1 .the general . intimidation -had., this effect. In ouropinion, how the majority were or may have been prevented fromelec^in.gTthe candidate: of. their, choice- need,: not be speciallypleaded.
SCBandaranaike v. Premadasa tRanasinghe. C.J)
269
The expression in S. 91 (a) is "were or may have beenprevented". It seems to us that the term 'may' was designedlyused because mathematical proof that the majority .of-electorswere in fact prevented, in many a . case, .is impossible ofattainment. The .burden to .prove that the majpjrty of 'electorswere in fact prevented is difficult and it is. almost impossible toproduce the requisite proof. In Shiv Char'an Singh v. Chandra .Bhan Singh and others ^5); me appellant was declared elected.The difference between the votes polled by hirmand candidate 'R";who polled the-third highest number of Votes1 Was' 4:497' votes.The' respondents challenged the election under S’. 100.(i1) (4) (1)of the-Representation of the People Act. 195T.-which states thatthe ’election . is avoided-.if the1'High Court is of opinion-that the .result of the election in so far as. it concerns.:a returnedcandidate, has been materially affected by the improperacceptance of-any nomination.- Candidate 'K' whose nominationpaper had been improperly accepted,..polled the 2^,d. highest• .number of votes. The appellant pleaded!, inter "alia….",that.;, his-election was npt materially affected by.the acceptance of,'K' s' .nomination paper. The respondents did ..not produce any .evidence to show that ' the^ iimproper acceptance of 'thenomination paper of 'K’’materially1 affected the result of theelection, of .Ihe mturriedi candidate: ' The appellant-? hoWe^er-.produced 21 witnessesiwho stated that, in the absence of 'Kf inthe election contest, the majority of voters who had voted for K-' •would have voted for the appellant. The High.:Cou.ft> rejected thus •evidence but held that js-ihce. the. difference .between the-votespolled by the appellant and.'fT was, only ,4497 votes; .it.icoul.dreasonably be concluded that the result of the. election wasmaterially affected. In, .upholding the appellant's election, ^theS.upreme Court observed.': V. .i .
-. .j ,-1,i?1i – :v-v ••.• –
"The burden to prove this material effect (on the resulfofthe election) is difficult, and many, times., it is almostimpossible Td' prqduce0 the requisite proof. Electors exercise■.their right-"of1 vote on'various unpredictable considerations,
nd the Courts , are ill-equipped to speculate^, guess or•“'.forecast' by – proceeding ' on probabilities o'r drawing'- inferences regafding'the fconddct of thousands of voters . ,.The.statement of witnesses could not be taken at their wordand it was surmise and anybody's guess as to how those'■ people- who did -not.vote? would have aetd’aliy'voted,'':
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As Grove J. observed in the Hackney Case ^6) at 79—
“I cannot see how the Tribunal can by any possibility say.what wbuld or might have taken place under differentcircumstances. It seems to me to be a problem which thehuman mind has not yet been able to solve, namely, ifthings had been different at a certain period, what wouldhave'beep the result of the concatenation of'events uponthe supposed change of circumstances. I am unable at all■ events to express an opinion upon what would have beenthe result, that is to^ say, who would have been electedprovided certain matters have been complied with whichwere not complied with." ■•
S.o’, it seems to us that'bn-the basis of instances or acts ofgeneral intimidation established by evidence, the Court may draw .a reasonable inference therefrom that the majority of electorsmay have been prevented from, electing the candidate of theirchoice. In a case of general intimidation. the question that arises.is —- from the proved acts of intimidation of electors, is itreasonable! to suppose that, the result of the election may havebeen affected? This, it seems to us. to. be the true, meaning of thewords "the majority of electors may .have been prevented fromelecting the candidate they preferred." But. it will be open to thereturned candidate to show that the gross intimidation could notpossibly have affected the result of the election.
• ^'V1'.
We ! now come to Mr.. Choksys complaint’that in certaininstances of general intimidation, material facts have not -be'enpleaded;, ..,,,
(i) Names'of persons killed . or. intimidated, that is. the. / names of victims o.f intimidation have riot been stated.
. (ii) The time of the-incident. the£exact location or.place ofthe incidents, anci ;the dates of, the incidents have notbeen furnished.
(iii)"iTTie. nature of the intimidation hasnot been given…
SCBandaranaike v. Premadasa (Ranasingh'e. C.J.)271
S. 96 (d) requires the petitioner to give full particulars of thecorrupt practice or illegal practice, including, as full a. statementas possible of the names of persons alleged to have committedsuch corrupt or illegal practice and the date and place of thecommission of such practice. On the other hand, in regard to ageneral charge., S. 96 (c) imposes, a less stringent requirementnamely, "a concise statement of material facts" is-to be1 given. AsRogers (p. 192) poi'n'ted out, in a general charge the aboveparticulars cannot, from the nature of the charge, be given!- Priorto the Amendment in 1970. when the Rule as .to obtainingparticulars was in operation, with regard to specific charges ofundue influence, the usual practice was for the Election Judge toorder the name of the person alleged to have been undulyinfluenced, and by'Whom, with the address and number on theregister; the time -when and place vyhere the act of’ undue-influence is alleged to have been committed and the nature ofthe undue influence. A? Willes. J.-pointed out ip.the LichfieldCase &7) —'
* . > • .. • • ;
"The proper definition of undue influence is using anyviolence or threatening any. damage or., resorting to .anyfraudulent contrivance to restrain the liberty,of a voter so as'either to compel or frighten him into voting or abstaining… from voting:otherwise^Than he freely wills.:".- .■
And. so. as Mr. Baron Bramwell pointed out in-the North DurhamCase J.l.’f) (supra, at p..-156) — individuals must, be identified asthe. objects upon which, it was practised,, or to, whom it wasaddressed by the candidate or by his- agent,-to constituteintimidation as defined ,by Statute. In Tarnolis Appuhamy v.Wilmot Perera ■(??) (supra) at p. 369 Nagaiingam, J., too madethe same observation.:. ;. /
."While in order to sustain a charge of general intimidation.
– it- is – neither necessary,: to • prove the . agency–.of the.intimidators in relation to the candidate On whose behalf.theintimidation was – exercised nor–to .-establish that anyparticular voter or voters were in fact intimidated, it is; essential, however, that before an election can be declared. void on the ground of the exe'rcise ofundue-influence, proof
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must be adduced both of the agency of the person orpersons guilty of undue influence and of the person orpersons intimidated."
Halsbury in his Laws of England (4th Edn. at p. 478) states :
"Where a charge of general corruption is made, theparticulars which.are ordered are necessarily wider, and thenames of particular persons alleged to- have bribed or.treated will not be ordered. A petitioner will, however, be
. ordered. to specifiy the character and extent of thecorruption alleged."•
This observation goes for general intimidation as well. Aconcise, statement of facts cannot be expected to contain anymore information than what is stated above by Halsbury.
' Furthermore, it appears to us that when a complaint is madethat dates, times and the exact locations of the acts ofintimidation. have not been furnished, what in effect is beingasked for, are "particulars" of the charge. The word "particulars"has not;been defined in the Act. It appears to us to mean detailsof the case set up by a party.-'
As we observed earlier, the character and the nature of thegeneral intimidation have been given in the concise statement ofmaterial facts. The case for the petitioner is one of "preventiveintimidation". The nature of‘ the alleged intimidation has -alsobeen furnished, namely'aotual violence, of threats of violence —bomb explosions, -shootings and killings, posters' threateningvoters-and. announcing curfews etc. The extent of the allegedintimidation has also been given, namely, that it was generallyspread over 20 electoral districts. It seems to us. therefore, thatthere has been sufficient compliance with S. 96 (c) of the Act.
The;secondAground of’avoidance'relied on by the petitioner isbased on section 91(b) of the Presidential Elections Act. No. 15of 1 981 the’operative part.of which reads thus :
"non-compliance.,with the-provisions: of this Act r.elating toelections., if .it appears that the election was not. conducted in
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accordance with the principles laid down in such provision'sand that, such non-conripliance affected the result of the.election":
The principal submission of Mr. Choksy for the 1 st respondentand'the. learned Attorney-General for thg 2nd'respondent wasthat the petitioner had failed to aver a material, fact relating to aningredient .of the charge under section 91(b), namely, how theacts of non-compliance with the provisions of, the Act set out inparagraph B of the petition affected the result of the electiqn. Mr:Choksy contended that paragraph. 8 of the petitibn containedonly the factual aspects of the non-compliance vyith theprovisions of the.Act. and that there was,no-averment that.suchnon-compliance affected the petitioner .adversely or enured tothe. benefit of .the" 1st respondent It. was also. counselssubmission that, as the Commissioner of Elections, could, undersections 56 and 61 of the Act declare the. results of the electionsin one of the two ways set out. therein, it was incumbent on thepetitioner, in order to give the respondents adequate notice ofthe way in which she maint'ains'That'The result was affected, tostate clearly in her petition in which-one of these'two ways theresult-could have been'declared'."".'' ; •
• Mr.. H. L.-de Silva Tor ■ the petitioner, on the -other h’and.maintained "that proof -that the result of the election was affectedis not an essential .ingredient of 'the ground of avoidance, set outin sec. 91 (b). Counsel argued that the'key to the interpretation:of section 91 (b) is in section 1 1 5. While section 9 T(b) sets Outthe ground, of avoidance of the election, section 11 5'guaranteesprotection to..the returned candidate, and both provisions mustbe read together and interpreted in a-manner consistent, witheach: other. – The protection which section- 11 5 affords ,to thereturned candidate will hold.only if two conditions are satisfied— (-1). that the election ..was.-conducted according to the'principles laid down in the, provisions of .the Act; (ii) that- the 'failure to comply with the provisions of the.Act did.not affect theresult of the election. ,
. If any-one of these two conditions is not satisfied, then theprotection given -by section 1 1 5 will not hold. Counsel argued
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that section 1 1 5 is complementary to section 91(b)- and thatboth provisions must necessarily cover the same ground.Accordingly; Mr. de Silva submitted, that the word 'and'appearing in section 91(b) was a mistake of the draftsman andthat it should be read as 'or' in order to make the two sectionsharmonize with each other.
Mr. de Silva further contended that when section 91 (b) speaksof the 'result of the election' it can only refer to a valid election.Where the non-compliance with the provisions of the Act is of■ such extent and magnitude as to render the election a sham anda nullity, than the result cannot remain unaffected. In short, wherethe election is void for non-compliance with the provisions of theAct, the result goes with it. In support of his submissions, Mr. deSilva relied strongly on the judgment of Lord Denning in Morgan& others v. Simpson & another (28)
On a consideration of the submissions of counsel outlinedabove, it seems to us .that the governing provision is section.91 (b) yvhich isthe basis upon which the petitioner has come intocourt seeking the avoidance of the election. On a plain reading ofsection 91 (b) it is clear that.the charge set out therein postulatesthree ingredients: (i) non-compliance with the provisions of theAct: (ii) the failure to conduct the election in accordance with theprinciples > laid down in such provisions; (iii) -> such non-compliance affected the: result.of the election. .
The wording in section 91(b) of the Presidential Election ActKio. 1 5 of 1981 is identical with the wording in section 77 (b) ofthe Ceylon (Parliamentary Elections) Order ■ in Council 1946.Similarly section 11 5 of the Act is identical with section 51(1) ofthe said"''Order in Council • 1946.- Nagalingam. A.C.J. inMunasinghe v. Corea (2-9) considered both provisions appearingin the Ceylon (Parliamentary Elections) Order in Council 1946.That was a case where, one of the grounds of avoidance reliedon by the petitioner-appeallant was non-compliance with theprovisions relating to elections in the Order in Council 1946[Section 77(b)]–The petitioner-appellant’s case’was based ontwo categories of ballot papers. Firstly, thirty two ballot papers.
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admittedly genuine but issued without the official, mark orperforation, and secondly, eight missing ballot papers; Asregards the missing ballot papers, there was no evidence as tohow they were lost and therefore -therel!was no .proof of non-compliance in terms-of section 77 (b): However, the'position asregards the thirty -two ballot papers3issUed'without'the officialmark was quite different; It was1 hot-disputed that these ballotpapers were genuine ballot papers''"‘but the Returning Officercbrrectl.y rejected them in terms' of section 49,as they;did notbear the'Official mark. Irt these circumstances it Was contendedon behalf of the petitjoner-appellaht that all'that he had'toprovein terms, of .section' 77 (b) was,, non-compliance, -.with theprovisions of. the Order in Council, jIp .rejecting this .argumentNagaljnga.m, A.C.J.. ..said: "Every non-compliance with the'provisions ,of the.Qrder itn Council does not. afford a ,gr0un,d,fordeclaring an.election vo.id, but;,it mtust further., be established(apart from-any other requireme.ntHhat,-the non-compliance withthe .provisions was of such.a, kind or character, that it could besaid that the. election had' not-been conducted j in accordancewith the principles–..underlyingthose ! provisions. ■, Are -.the'principles laid down in the provisions’ of the Order in Councildiffereht.from -the provisoes themselvesi?-Unlessathey were; noadequate .reason. can be assigned hornhe draftsman .(using1 the.language'he has usedf The. difference; hthin.k. consists not-.somuch in the nature'of the-n'ori-Cbmpliance as"in the degree ofthat non-compliance; it consists not in'a bare-non-compliancebubin.the magnitude' ef' extent of- the non-compliance -. . , .' Iwould not put down the omission %'• perforate' these ballotpapers to carelessness, and -much less to negligence, but rathert'o human.fallibility.' to the: imperfection of the-human machine, towhat is1 sometimes termed the hliman'-'element. The fact that out'of 26.054 ballot papers-’thirty two had no perforations,- irvotherwords that over :t26;00’0: ha'd been’fdUiy -perforated, is. the mostsatisfying proof that -the election had been conducted-'-at thevarious polling booths in accordance with the principles- laid'down ih that- behalf in the-provisions of the Order- in-Council. To •hold otherwise (would be not merely td-set'at naught elections ingeneral but to render 'entirely Unworkable the democraticmachinery". (At pages .272 &.273).. Furthermore, it was
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suggested’ on behalf of the appellant-petitioner that the true testto determine whether the election was conducted in accordancewith the principles laid down in the Order in Council 1946 was"to ascertain the number of ballot papers not bearing the officialmark in relation to the margin of majority which the successfulcandidate has secured against the runner-up” which was only• eight. This suggestion was rejected by Nagalingam. A.C.J. withthe observation that it "bears more properly on the second limbof the provision of section 77 (b). which requires that it shouldalso be established that such non-compliance affected the resultof the election". (The emphasis is- ours). Mr. .H. L. de Silvasubmitted that this observation in the judgment was obiter, sincethe court held that the non-perforation of the thirty two ballotpapers did not establish that the election had not beenconducted in accordance with the principles of election laiddown in the Order in Council. While this submission is correct,so far as "if goes'.’'yet the judgment clearly proceeds on the basisthat under the provisions of section 77 (b). it is an essentialrequirement that the:result of the election should be affected. Asstated earlier, this view is in accord with the plain and ordinary■meaning of the words used by the draftsman.
Mr, de Silva's, submission that the use of the word and' insection 91 (b): :is a mistake for. the word or' made by thedraftsman is: not acceptable, rhaving regard to the historicaldevelopment of.our election laws. The section corresponding tosection 11 5-of the Presidential Election Act No. 15 of 1981 isfound in section XL of the Ceylon (Legislative Council) Order, inCouncil 1923 which reads thus:—
"No election shall be invalid by reason of a non-compliance-■ with the^rules contained in Schedule II to this Order if itappears that the election was conducted in accordance with: the principles laid down in such rules, or that such non-compliance did not affect the result of the election. "
It is. to be noted that the word used in the above section is or'as opposed to the word 'and'. There is no provision in the Orderin Council of 1923 similar to section 91 (b) of Act No. 15 of1981.
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The next enactment relating to our- election laws;is the Ceylon(State Council) Order in Council 1931 .Here we find section 74which for the first time set out specific grounds for the avoidanceof an election,. A section similar to section 74 was: not found inthe Order in Council 1923. Section 74 (b) reads thus : '
"Non-compliance with the provisions of this Order, relatingto elections if it appears , that, the election was notconducted in accordance with the principles laid down insuch provisions and’ that such non-compliance affected theresult of the election". .'■-
What is noteworthy here is the use of the word and'. Thesection which corresponds to section XL of the- Ceylon(Legislative Council) Order in Council 1923 is section 48 of theCeylon (State Council) Order in Council .1931 .which reads asfollows '..‘ •• .• •
. :"No election shall be invalidoby reason of'any. failure tocomply with the provisions contained in this Order relating ■to elections if if appears thatthe election was conducted inaccordance with-the principles laid down in such provisionsand’ that such failure did not affect the result' of theelection". ■• –
What is significant for present purposes.is the use of the word‘and’ in ~the above section.'The'term 'or' which occurred insection XL-of the Ceylon (Legislative. Council) Order in Council1923 was changed'to.'and' in. .the. Ceylon (Legislative Council)
. Order in Council 1931. It was.the submission of Mr. Chdksy.thatthe change of language was deliberate and that it was done witha view to avoiding any inconsistency between section 48 andsection 74 (b) of the.Ceylon (State Council) Order in Council1931. With this submission we agree.■
The wording contained in .sections-48 and 74 of the Ceylon• ' (State Council) Order in Council 1931 was repeated in the. corresponding. provisions, of the- Ceylon (Parliamentary… Elections) Order c in Council .1946. The' judgment io■(Mu-na.si'ngh-e- vo-Go'cea-(supra');'delivered in
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December 1953, construed the provisions of the Order inCouncil of 1946. Despite the view expressed byNagalingam. A.C..J.. in his judgment, the legislature did notdeem it necessary to include an amendment to the.provisions of .section 77 (b) when it enacted the Ceylon(Parliamentary Elections) (Amendment) Act, No. 9 of 1970.
It is also to be noted that the legislature did not consider itnecessary to effect any changes when it subsequentlyenacted the Parliamentary Elections Act. No. 1 of 1981.Thus the submission of Mr. de Silva that the change in thewording was a mistake on the part of the draftsman isunacceptable.
The' foregoing shows, clearly What the intention of thelegislature has been..,-,'
Bindra. Interpretation of Statutes. 7th Edn. p. 537 states :
– "The word 'and' in.a statute may be read 'or' and vice versa.
. .!■ whenever the change, is necessary to effectuate the obvious
■ intention of ■ the legislature. The Courts should, however,have recourse: to-, this exceptional rule'of construction onlywhen the conversion of the-words-'and' and 'or' one into theother, is necessary to carry into effect the meaning and the. intention of the Legislature . . . .”
The,case of Morgamand others v. Simpson and another (28)cited' by Mr. de Silva is• of little assistance on this questionbecause it-deals:wi.th the, English law relating to elections whichis different from our-law.
. ■. "We.acco.rd.ingly hold that Mr. Choksy's submission, that one ofthe, essential,,…ingredientsLof section 91(b) of the PresidentialElection Act, No. 1 5 of 1981 is that the result of the electionshould be affected, is well-founded.
vMr-.> Choksy icontended'that, in'"regard to the' third ingredientpostulated-by the provisions of Section 91:(b), the petitioner haswholly, failed’to-aver the materiaLfacts required to establish howthe acts-of non-compliance relied upon by the1, petitioner did in
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27,9
fact affect the result of the election. He .submitted that it wasincumbent upon the petitioner to expressly aver that the.acts of.non-compliance relied upon operated either to:.confer a benefiton the 1 st respondent or to adversely affect the petitioner. Healso contended that the petitioner should have in additionexpressly ; pleaded how . such non-coroplianee- would haveaffected the declaration of the result, whether the declaration of.the result would have had to be made under the provisions of S.56 or whether a declaration under section 61 wouj'd havebecome necessary.
The "result" contemplated in section 91(b), which, as setabove, forms part of the third, ingredient therein, is: "The return of•the candidate ■ and hot the amount of the majority" — videEastern Division of the Country of Clare, (30) "The success ofthe one candidate over the other." (Vide Woodward.y. Sarsons(31) and Rogers' On Elections, 1.3. App. Vo I', II, 1 8th Edo.. 1 906,
p. 61. • -.:’…'.
The' petitioner has, : in the petition, set' out specificallynbmerpus acts of non-compliance, such as — failure to appoint.such officers and servants as were necessary to the taking of thepoll: failure to appoint adequate staff in certain polling stations;failure to maintain certain polling stations at the places'specifiedin the notices .published in the Gazette; failure to permit thepolling agents at certain polling stations to be present at thesealing of the ballot .boxes; failure to keep certain polling stationsopen at the-hours specified in the Act; failure to specify asrequired by- the Act 49 polling stations in the IVIoneragaiaDistrict, in which'the 2nd.respondent declared the polling to bevoid; failure-to comply with section 23 of the Act with regard topostal votes; failure to ensure that official poll cards were* sent toall. registered voters, asrequired by section 24 of the Act. Thespecific provision's of the law pertaining to these contraventionshave been expressly stated in the petition. The principles inaccordance with'which the election has to be conducted arethose laid down in the said provisions of the-Act. What theseprinciples are, is a matter for the Court. .' – .
There remains for consideration only the.question whether.thepetitioner has pleaded What, according to the petitioner was the;
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etfect of such acts of non-compliance. A consideration of thetotality Of the averments in the petition makes it. in our opinion,quite clear that the petitioner's complaint is that the said acts ofnon-compliance did operate to adversely affect her. It does notseem to us to be open to the 1 st respondent to urge that thepetition does not. on the face of it. make it clear what the casehe. the 1 st respondent, has to meet.
In this.connection, it is important to note that, while setting outthe factual matrix of the alleged non-compliance, the petitionerhas proceeded expressly to set out the consequences of suchnon-compliance as being : "that a large number of persons wereunable to vote"; "that some of the voters who supported thepetitioner were unable to vote."
A consideration of the averments in the petition, in ouropinion, makes it quite clear that the petitioner's complaint, inregard to the effect of such non-compliance in relation to thechoice of the particular method, of declaring the ultimate result,is confined to the declaration made in terms of section 56 of theAct. If the petitioner was seeking to make out that theconsequences would , even have entailed a declaration undersection 61. then the petitioner would have had to plead morefacts. In our opinion it is not open to the petitioner, upon theaverments set out in the petition, to take up the position that theconsequences entailed were such that the 2nd. respondentwould have been faced with the possibility of going beyond thestage of a declaration under section 56 (2) having to consider' the making of a declaration under section 61.
We are of opinion: that the petitioner has set out in the petitionfacts which are material and are, necessary for the proof of thepetitioner's case; that the facts and circurristances pleaded in thepetition’ are such that the 1 st respondent will know, from thepetition itself, not only what the’ petitioner proposes to prove asacts of non-compliance, but also the consequences which haveflowed from such failure: that facts and circumstances have been. pleaded which are sufficient to give the 1 st respondent notice ofthe particular allegations which.are being made by the petitionerand which will.also enable the 1st respondent "to make the
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necessary inquiries and obtain information to defend himself."(Vide Wijewardene v. Senanayake. Having regard* to theaverments set out in the petition, the'objection based upon theprovisions of section' 26 (2) of the Act, is, in' our opinion':untenable.
In paragraphs 9 and 10 of.the petition the petitioner seeks torely, on the instances enumerated under the ihead of. non^compliance.’wi.th the provisions of Election Law- as "othercircumstances" and pleads that by reason of their occurrence, the"majority of electors'were- or may have * been prevented, fromelecting the candidate whom they preferred.” In other words, thepetitioner is also seeking to'a'void the election onjthe ground ofavoidance set out in. section 91 (a) of the Act; r6ryifig;o'n'non-compliance-with the provisions of. Election Law."
Both the learned'' Attorney-General- and Mr.- Choksy, P.C..contended that the 'legislature contemplated non-compliance as'a ground of avoidance .under section 91(b) and-that facts andinstances pleaded by 'the petitioner are in regard to• ri'on-compliaribe: hence the petitioner cannot res'ort^p section 91(a)of the Act.-
Mr. Choksy supported his argument' by also relying on the ruleof construction Generalia specialibus' non ''derogant — specialprovisions will control; general provisions. He contended thatsection 91 (b) is the special provision and s'ection 91(a) is 'thegeneral provision' and "the special provision' prevails arid -isOperative.
We are inclined to agree with Mr. H. L. de Silva, P.C…whostated that the rule of construction dobs 'not apply. Bindra on TheInterpretation of Statutes, 6th Edn… p.–140 states as follows
"The following principles must be. applied and exhaustedbefore the rule is applied. First, the two provisions must’cover the same area before Orie cari be treated as anexception to another. Secondly, the two provisions must beso incompatible with each other that they cannot bereconciled." …
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In our view the two provisions do not cover the same area: norcan section 91(a) be said to be repugnant to or be in conflictwith section 91 (b). Though the relief granted on proof of thegrounds set out in. both sections is the same, namely, theavoidence of the election, the grounds of avoidance are not thesame. Furthermore, the objectives sought to be achieved by thetwo provisions: are different. In section 91(a). the objective is toensure that the electors must be allowed to vote for thecandidate of their, choice, unhampered by.intimidation.- bribery,treating etc., while section 91 (b) ensures that the. election-will beconducted in accordance with the subsisting Election Law.
It alsp seems to us that the answer to the submission of thelearned Attorney-General and Mr. Choksy is contained in thewords' of section 91(a) — "that by reason of general bribery,general treating-or.general intimidation or other misconduct or
other.circums.tances, whether-similar to those, before enumerated
or not, the majority of electors were or may have been preventedfrp.m electing the-.candidate- whom, they preferred." The ."other'circ.umstances"-:.may be any circumstances vyhether s.imilar tothose enumerated o.r not. In .other words, the legislature having
preferred to the occurrences which are common at elections, viz.,intimidation, bribery, treating and misconduct, proceeded torefer to any •circumstances-whatsoever by reason of which themajority were^prevented from voting for the.candidate of their' choice.^ The words; "other circumstances" are wide enough toinclude .instances of no.n-compliarjcewith the law relating to theconduct.of elections.-The petitioner was, therefore; entitled toplead instances of non-compliance to sustain, a charge under.. section 91 (a) of the Act.
?.-F.or the, reasons set pu,t'above, we make. order overruling- all thepreliminary objections raised-on-:behalf'ofrthe respondents anddirect that this petition be set down for trial.
-: The costs of this,, inquiry ;^iN be costs in the cause, but theresppndents,will not in any event be entitled to the costs of thisinquiry. ,
Objections overruled.