DON PHILIP et al , Petitioner, and T. B. ILLANGARATNE, Respondent

136-NLR-NLR-V-51-DON-PHILIP-et-al-Petitioner-and-T.-B.-ILLANGARATNE-Respondent.pdf


Uoh Philip f. /lUin<mriit>u
56V
1949Present: Wagattngam h
DON PHILIP et al.. Petitioners, and T. B ILLANOARATNK,Koapondcnt
Election Petition No. 1 o> 1048
Ekotirin petition—Corrupt pwliat —Publication nf fnln* atutemtnUi regardingKi>Klidzt(!–Bu-rdi}n tf proof—A nklancr. of potitiail party—Agency—Responsibility nf {uxrVdnl'.—P'xrllnnvint'rry h-hc.tiona Order in Council,1946—Section 5$ (7) (fl) nnd {(l),
Where tho allegation Is that the ronpondont or his agents aro guilty ofmaking false scatomants of foot in relation to tho personal characterand conduct of a rival candidate, tho falsity of the statement is primafacie established when thoro is a denial on, oath. It is for the partywho assorts that a latnbomsnl: alleged to bo false is true in fact to establishboyoud reasonable doubt, tho truth of that statement.
Where a political party of which trio candidate jg not: a memberplaces the services of its office ami its workers otitis di-.pos.vl and addressesmooting*; on hiB behalf such party and its aor.Kv member* ace constitutedugouta of the camliduto and he is responsibly for any corrupt procticocommitted by thorn.
A document docs not fall within tho clats of publications referred toin section 58 (l) (c) of tho Ordor in Council unlefH it uitrior expr©33lyor by implication rofers to tho election, If it dou» not. howevor mis-chievous it may bo in its effect on the election itsslf. it is outside theacopo of tho section.
This was an election petition presented against- the return of therespondent., at a bye-eloction, us member for the Electoral District- ofKandy.
O.E. Chitty, with T. K. Curtia, G. T. Sfimnrawickrema, M. 7. Mohamedand J. F. Soza, for tho petitioners.
S. Nadesan, v/ith N. Nadarasa, 8. Skarvamnda and M. L, 8. Jayasek*ra>for the respondent.
j* •• J S' l< J-AM f'l'SiM
NAGALIXGAM J.—Don Philip v. Illanyaratne
562
February 10,1949. Nagalikuam J.—
The petitioners, who arc duly registered voters of the Electoral Distri*of Kandy, seek in these proceedings to have the election of the respondedat the by-election declared void. In their petition all the major groundupon which an olection can be avoided wore set out but at the trievidonco was led only in regard to two of them and the other groun<were abandoned. The two grounds which the petitioners sought •substantiate are those falling under section 58 (1) (c) and of the Ceylt(Parliamentary Elections) Order in Council, 1946.
I shall deal first of all with the charges under section 58 (1) (d). Tallegation of the petitioners is that during the election t he vef.pondeby himself or by his agents or by other persons with his knowledge.consent mado or published cither orally or in writing for the purposeaffecting the return of the rival candidate, Mr. Fred de Silva, fastatements of fact in relation to the personal character and conductthe latter. Evidence in respect of several statements was tender*but I do not proposo to discuss all the evidence thus led and shall con6the discussion to such of the statements as appear to have been establish'(a) Firstly, the respondent is said to have stated at a mooting heldBogodawatte in Mulgampola, Kandy, on May '. 1948, in support o;candidature, words to the following effect:—
“I was requested to support- Vernon Gunasekera, Proctor, idefeated candidate, Kadugannawa Seat, but I refused beeavse he i
disgraceful principleshe has become an instrument
Mr, Fred Silva and tonrke for him for hire,"
The testimony of Police Sergeant R. L. V. Fernando shows that t-hwords or words to the like effect were uttered by the respondent on 1occasion (P 35). The Sergeant was ono of the men attached tospecial branch of the Criminal Investigation Department stationedKandy whose duties primarily consisted in “ covering ” political ineetiand taking notes of speeches According to the Sergeant and otpolice officers whose duties wore similar, they made short notes ofpoints in the speeches which wore considered salient by them, and afterconclusion of the meeting, with the aid of the notes they reprodufrom memory as far as possible the gist of the speeches. It was svgge.(on behalf of the respondent that the speeches as constructed bypolice officers may not be accurate and that in some instances the contiof what was said may have been placed on record by them. T1men have all had about three to four years’ experience in doing vof this character, and having seen thorn in the witness box and the clof cross-examination on them whonever it was attempted to discrthem, I am satisfied that the suggestion is without any merit. Tobservations of mino apply to the evidence of police officers whoin the same category as Police Sergeant Fernando. I would hold thatreports of the speeches made by them to their superior officers cmlan accurate account of the speeches msde by the various spealEvidence was also given that the respondent made use of a sirsentiment at a meeting held on May9,1948, at the Town Hall, with a'to show that the alleged statement was not an isolated utterance but
N'AGALiNGAM J.—Don Philip v. Illongaratne563
it was part of a scheme to repeat the statement wherever possible in orderto gain currency for it. Sergeant Fernando says that he also " covered ”the meeting of May 9, 1948, at which the respondent stated that Fred•Silva gr.ts people to write leaflet# arid pays them money, in other words,that he was in the liabit of hiring people to support his candidature.The respondent, when questioned about his speech on May 9, 1948,was not prepared to go further than that it was very unlikely that hecould have made that statement, but in regard to the allegation that hehad referred to the services of Mr. Vernon Gunasekcra having been hiredby Fred de Silva, he sought in a way to justify that statement. Heproved that he had made payment of a sum of Rs. 40 to VernonGunasckera in order to induce the latter to speak at a meeting of theGeneral Clerical Service Union and that ho had therefore in fact hiredVernon Guuasekcra's services to make a speech. But I do not thinkthat from the fact that the respondent did pay a fee to Vernon Gunasckerafor a speech which was non-political in character—and it makes verylittle difference even if the mooting had been political in its outlook—itfollowed that Fred de Silva had also hired the services of VernonGunasekcra to support his candidature. Fred de Silva, on the other hand,categorically denied that he made any payment whatsoever to VernonGunasekora or to anybody else for making a speech or for writing outany propaganda literature on his behalf. [ have not lost sight of thefact that Fred dc Silva had his Tamil manifesto prepared by one Ganeshamto whom he made a payment of Rs. 40. But this Tamil manifesto isa reproduction of the Kngiish version and can only be regarded as atranslation. Besides, neither tbo respondent nor any of bis witnessessay that they were aware of this payment or that they alluded to thispayment in the course of their speeches. Had it been said that Fredde Silva had hired a person to do the Tamil translation of his manifesto,there would have been no sting in it and such a statement would onlyhave had the effect of adversely recoiling on the speaker himself. Thispayment thus has no bearing on the question. 1 find it therefore provedthat the respondent did make the statement attributed to him and thatit is a false statement of fact-.
(6) Secondly, Mr. H. A. C. Wickremcratna is also alleged to have madeuse of similar language. It is alleged that at a meeting held on May 16,1948, at the Esplanade, Kandy, in support of the respondent's candidatureWickremeratna, who presided at the meeting, before introducingMrs. Florence Senannvake, one of the speakers, said words to the followingeffect:—
“ Like that Vernon Gunasekera Thakkadiya there are no persons
brought on hire to address vou.M
This is vouched for by the same Police Sergeant Fernando (P 22). Tbsinnuendo is stated to bo that, while Fred de Silva had hired the servicesof Vernon Gunasckera to make speeches on his behalf, the speakers atthe respondent's meeting were not hirelings but were persons who feltgenuinely for tbc cause they were espousing. Wickremeratna does notexpressly deny having made this statement and, what is more, thereis documentary evidence which shows that Wickremeratna was not
At>4-AC.AL1NGAMr. titaucni.ruii<*
averse, to put it at the lowest, to have such statements made o<" Fredde Silva, for in document P l occurs this passage :
"Mr. Fred IS. do Silva …. has hired the doubtful talentsof a disgruntled pamphleteer to produce hi* cleedon manifesto.'*It is not denied that the reference to " the disgruntled pamphleteer ’*is to no other than Vernon Gunasekcra. Wickremuratna admits thathe corrected the proofs in regard t-o PI and that- he himself added certainpassages to it in the course of his correcting the proofs. Wickremeratna,however, gtatos, that it was one Mr. RoJutid -Icyasekera, who was amember of the Lanka Sama 8amnj Party. who was the author of thedocument, but that ho had been asked to hand it to the printers and thatafter handing it over to the printers he corrected the proofs and mad**additions to it. He does not say that be had the authority of BolandJayasekora or of anybody else to make that addition set out in themanuscript P8. Notwithstanding the evidence of Mr. Lionel Coorav, whosupports Wickremeratna, and of Wickremeratna, I am far fromsatisfied that if Wickremeratna is himself ;:ot the sole author of thedocument he is at least, not a joint author of it. X therefore find thatWickremeratna did make the statement alleged to have been made byhim orally and is also responsible for the document Pi which containsa similar statement, and I hold that those statements are also false inview of what 1 have said iu regard to tho first statement considered by roe.
Thirdly, at a meeting held at tbo Military' Barracks on April 26.1948, it is alleged that the respondent told the audience that Fred doSilva had even triod to put him oat of his houso by approaching hislandlord. Sergeant Fernando's report of the proceeding of the meetingheld on this occasion (P36) amply proves the allegation. The respondentsought to justify his statement by reference to the fact that his landlordhad verbally asked him to leave tho house, though his landlord himselfwas not called, and that on one occasion when Fred de Silvs wont tohis house with a request that the election petition presented by therespondent against Mr. George E. de Silva should be withdrawn, he(the respondent) adverted to this subject and told Fred de Silva that he(Fred de Silva) had even attempted to have him turned out of his housebut that Fred do Silva, far from denying the imputation, only askedhim to forgive and forgot. Kred do Silva, howover, on the contrary,donies that there was any such conversation os deposed to by the res-pondent and in fact ho assorts that he made not the slightest attemptto induce the respondent’s landlord to terminate the respondent’stenancy. I cannot believe that Fred de Silva, who is a Proctor of exper-ience, would, if he desired to have the tenancy of the respondent putan ond to, haveadoptodthecoursoof golting the landlord merely to requestorally that tho respondent .should vacate the premises. An oral notice,us every legal practitioner knows, is totally ineffective for such a purpose.The respondent has not called his landlord, Amit, but it has been saidthat the landlord is on the side of Fred do Silva and that it would have beendisastrous to have called him. On behalf of the petitioners, on the otherhand, it has been urged that the respondent-, who is a layman and whomay have been ignorant of the sufficiency of an oral notice to terminates tenancy, thought it best to weave into his speech a false episode of an
•NACiALLNGAM J.—iA<n Philip c. Itlaugoralneotto
attempt made by Fred de Silva to have him turned out of his house, asby so doing he would reach the hearts of his audience, which consistedin the main of refugees who bad been rendered homeless by the floods,most effectively, in order to secure their votes in his favour. Under tboEnglish Law, reasonable ground for belief and actual belief in thetruth of a false statement is an adequate excuse. (Sec Commit andIllegal Practices Prevention Act, 1885.)1- But under our law such abelief provides no such extenuating circumstance. My finding, therefore,is that thu respondent did make this statement too and ths t the statementis false.
Fourthly, Wiokremeratna is alleged to havo given utterance to thefollowing words or words of a similar character at a meeting held onMay 17, 1948, at the Market (/rounds, Kandy, in support of therespondent’s candidature:—
“ In 1944 when 1 addressed a meeting of Hospital workers for goodcause, Mr. George Silva, and his Pandaokarayo contacted H. E.Governor Caldecotte and sent me to jail. Three police officers andMr. Fred Silva gave false evidence in this.'*
Police Constable Baja’s report of the proceedings (l-‘3S) supports thepetitioner's case. Wickremoratnti, of. the other hand, denies the correct-ness of tr '.••wstable’s report and staus tint he referred to the fact thatFred de Silva bad given false evidence in the course of an election petitioninquiry. The whole of the context, however, shows that any referenceto Fred tic Silva having given false evidence at an election petitioninquiry would have been entirely pointless and meaningless. Theconstable's report shows that Wickreineratna said earlier in tho courseof tho same meeting that his blood began to run fast when he began tospoali at bye-clcction meetings and that he does not know what he saysat that time ; it i? therefore not unlikely that he has no accurate recollec-tion of what he did say. I accept the evidence of the police constablein preference to that of Wickrcmerotna and hold that Wiokremeratnadid make the statement he is alleged to have made. Fred de Silva deniesthat he ever gave evidence either true or false against Wickremeratnain connection with any proceedings taken against, tho I a*torthe
Defence Regulations or otherwise. This statement, there can be littledoubt, was also false in fact.
Fifthly, one Mr. Wilson R&tnayc he is said to have told the audienceat a meeting held on April 4, i94S. at Mawilmada, Kandy, in supportof the respondent’s candidature, the following words or words to thelike effect
" Mr. Fred Silva says that be stands for old ago pensions and hepreaches Socialism. I like to toil you one word about him. Duringthe last strike of the Town Bus emploj-ces Mr. George E. de Silva andMr. Fred Silva approached the Bus MndalaUcs through the back doorand asked them not to grant any of their demands''
Wilson Batnayakc has not given evidence, but that the statementwas made by him is established by Police Sergeant Fernando, whosereport (P32) embodies these words. Fred de Silva says that, whenthere was a 3t-rl!cv o' the workers of the City Bus Company in Kandy,
158 and SO Viet. c. 40.
566XAGALINGAM J.—Don Philip u- Jllangaratne
he, as the then Mayor, spoke to the owners of the Bus Company andasked them to try and settle mutters, but that he did not ask them notto yield to the doraands of the workers.
In this connection, I would wish to notice an argument of a generalcharacter of Counsel for the respondent that it is not sufficient for Fredde Silva to make a denial of the actions attributed to him but that heshould call other evidence, in this instance of the bus owners as weD,before it can be said that he has discharged the onus that lay on him.In other word*. the contention is that the simple denial of a partyaffected is not in law sufficient, and cases which lay down the propositionthat in a Petition Inquiry charges should be proved beyond reasonabledoubt as in a criminal case were cited. These cases are clearly distin-guishable for, whore the Court- has to bo satisfied, for instance, whetherbriber. or treating has taken place, there must bo sufficient evidenceof a satisfactoryupon V/hich the Courts should bo able to hold
beyond reasonable doubt that those Aitcgftimtnq have been made out,but when.-, .-is in this instance, tho allegation is that the toopondent orids agents arc guilty of making false statements of fact, the fafoity ofthe statement is prima facie established when there is a denial on oath.In the North L-'-'in CiWe* a bare denial was regarded as sufficient in similarcircumstances. ! r.decd, the contrary of what Counsel contended for wouldto embody the true legal principle upon which a Court should proceed;it is for the pari." who asserts that a statement alleged to be false is tree:n fact to establish beyond reasonable doubt the truth of that statement.Iu this instance, too, I see no difficulty in holding that it is proved thatWilson Ratnayako did make tho statement as deposed to by SergeantFernando and that the statemert is false.
(/) Lastly, in the document PC'S, the authorship of which has not beenestablished, it is alleged that a Member of Parliament, Mr, Ramanujam,received from Prod do Silva at the contest for the 1947 Kandy Mayoraltyu, sum of Us. 1,500 and that ho received another sum of Rs. 1,000 fromFred de Silva in connection with the present Kandy Parliamentarybye-election. Although, no doubt, the attack is primarily levelledagainst Ramanujam, it has boon contended that tho effect on thosewho read tho pamphlet P63 would bo to make them believe that Freddo Silva had bribed Ramanujam and was guilty of tho offence of bribery.Thero is not a tittle of evidence suggesting that any su«h bribery didtake place- Fred de Silva has denied it on oath and T hold that thesestatements iu P63 are false.
That each of those statements purports to be a statement of factand that every one of them affects Fred de Silva in regard to his personalcharacter or conduct there can be little doubt; nor can there be anydoubt but that if these statements be true they would have exposedFred do Silva, ids candidature and his cause to the contempt and ridiculeof all right thinking men and would have tended to wean away votersfrom him. In this view of the matter, it is beyond question that thesestatement* were made or published for tho purpose of affecting thereturn of Fred do Silva.
The next qucv.jun is whether tt'iekrcmeraina and Wilson Ratnayakecun be regarded agents of the respondent in making and publishing‘ 6 O’M. <ind H. 103 « J69.
MAGALXNUAM J.—Dm Philip v. IUangaratne
567
the statements proved to have boon made and published by them.First of all, in regard to Wickremeratna it is in evidence that lie actedas an agent of the respondent in the fullest sense of the term at theGeneral Election. That by itself is not a circumstance of any greatimportance, for one can well conceive of an agent at one election throwingin his lot with the rival candidate at a subsequent eleotion. One hastherefore principally to look at the conduct and acts of the candidateand o* the alleged agent in regard to the particular election at whichit is asserted that the agent did act as agent of tho candidate, to ascertainwhether the assertion has been established. According to the respondent,after tho unseating of the candidate who was returned at the generalelection, on an election petition presented by him and another, thequestion seems to have arisen between him and Wickremeratna as towhether he should stand for election. Tho respondent says he suggestedthat Wickremeratna himself should como forward but Wickremeratnawould not hear of it and told him that he should take the responsibilityof deciding whether he should come forward to contest tho scat and thatif he decided to do so he (Wickremeratna) would support him. Hesays that he then told Wiokremeratna there was no alternative but togo to the polls himself. If tho respondent’s evidence stood by itself,then there is proof that Wickremeratna pledged bis support unqualifiedlyto him at the bye-election; but Wickremeratna seeks to modify thisevidence and suggosts that what he told the respondent was that bewould support him to a point, which he defined as consisting in hisvoting for him and helping kirn wherever possible. Wickremeratnafurther says that he told Warakaula, the clerk in charge of the respondent’soffioe, that he should not be worried by him as he (Wickremeratna)would only work up to a very limited point. Now, if what Wickremeratnasays be correct, it certainly passes strange that on a vital point such asthis the respondent himself should have had no recollection of anylimitation placed by Wickremeratna on the assistance lie proffered.Of course, the respondent himself says that Wickremeratna did notwork for him to the same extent as at the General Election. Wickreme-ratna and the respondent both assign a reason for this change in theformer’s conduct. It is said that Wickremeratna did not feel himselfsufficiently compensated for all the time, trouble and energy he hadtaken on behalf of the respondent at the General Election nrsd in connec-tion with the election petition inquiry. This may be true but it wasno more than a flimsy, though be it a dark, cloud that had floated betweenthem as they discussed the question of costs; but there seems littlereason to believo that the cloud did not get completely blown away whenthe respondent took the decision to enter the lists. The range and natureof the acts shown to have been admittedly performed and done by Wick-remeratna leaves me with noother impression but that whatever may havebeen his intention at first, the old war horse in him took the bit betweenits teeth directly it scented tho smell of the election battle field and heardtho distant sound of the election drum. It is shown that from the com-mencement of preliminaries in regard to the Candida ture of the respondentto the close of the polls, Wickremeratna, to change the metaphor, hashad his finger in the IUangaratne eleotion pie; bis first act was to attestthe nomination papers of the respondent in his capacity ss Proctor
368XAUAL1N<MM J—Don PhUi?n lUanyatatm
without being paid a fee for his services—services certainly not of anarduous nature and may properly lx- deemed to be of a trifling character—but the act itself has sum© bearing on the question of strained relationshipover costa. Next we find that Wickremeratna accompaniee the respon-dent to the office of the Government Agent, when the respondent goesto hand over his nomination papers; it is in evidence that a candidateis allowed to take with him to the office only one person apart from hisproposers and seconders, and it id strange that that one person happensto be the estranged Wickrcmeratiia, and tM'» when the respondent hadthe whole ilchI of the Kaudy electorate to make his selection from. Itis proved that Wickreuwatna presided at the very first meeting launchingout the election campaign of the respondent and that he also presidedat what was planned to be the last meeting before the polling day atwhich a number of Members of Parliament wore present. . Wickremeratnaalso spoke at other meetings organised in support of ihe c andidatureof the respondent, and he was present at these meetings at the invitationof the respondent, as the latter himself says. Wickrcmeralnn was alsobilled to speak at meetings and this was all done with the knowledgeand consent, of the respondent. Wickromeralna not only looked afterthe printing of the respondent’* manifesto in English but also attendedto the procuring of translation of it both in Sinhalese and Tamil and hadthem also entrusted to printers for printing. In fact, neither the res-pondent- nor hta clerk, VVarakaula, knew what arrangements were made inregard to the printing of these manifestos by Wickremeratna. Thequestion of printing rates, the number of copies to-be printed, the correc-tion of proof, were all left to and must be deemed to have been under-taken by Wickremeratna for no other conclusion can be come to on theevidence in regard to these matters. Tho Malini Printers, who printedthe English and Sinhalese manifestos, appear to have sent their bill toWickrememtna for payment. There is evidonco which shows thatWickremeratoa also went out canvassing on behalf of the respondent.I accept the evidence of the witness Rajapakso that Wickremeratnawent about distributing the respondent's manifestos and that Wickrcme-ratna did hand to the witness a copy, notwithstanding the denial ofWickremeratna on the point. [ ant, however, not prepared to acceptthe evidoncc of either Martin Silva or Ranasinghu in regard to theirstatement as to canvassing done by Wickremeratna, as I was not im-pressed by their evidence. I also accept the evidence of Rajapakse thatMrs. Wickremeratna was also one of those in charge of the respondent’stablo at the entrance to the Ampitiya polling booth watching the interestsof the respondent and that Wickremeratna himself was at that boothreceiving voters on behalf of the respondent between eleven ar.d twelveon the polling day. J also accept the evidence that when polling wasclosed Wickremeratna was present in tho precincts of the Ampitiyapolling booth and called out cheers for the Umbrella, the symbol of therespondent. Fred de Silva swears that after the declaration of thepolls at the Kue.hcheri. the respondent publicly thanked Wickremeratnaand two others in particular for all the support they had given him andalso went on to thank the Leftist parties w'hich bad supported him.The respondent, however, says that he thanked Wickremeratna and the
NAGALINGAjM J.—Don Philip v. I Hangarrane
569
•other two for the support they had given him in regard to the previouselection petition but admits that he thereafter proceeded to thank thevarious Leftist parties. I have little doubt that Fred do Silva’s evidenceis true on the point- and that it is entitled to credence m preference tothat of the respondent. It is difficult to believe that the respondentwould have thanked Wickremeratna and the other two for the supportthey had given him at the election petition and gone on to thank theLoftist parties who had nothing to do with the election petition but whohad everything to do with the winniug of the byc-eJcction. Lastly,here is the significant fact that after the results were announced, the firstperson’s house to which the respondent did go was that of Wickremeratna.Explanation has been given by the respondent as to bow he came to go toWickremeratna’s house, but the fact remains that it was to his housethat he did go.'
Apart from these various acts to which I have alluded, the answer givenby the respondent to the questions put to him as to why he did not askfor the support of Wickremeratna is self-sufficient on the question ofagency. The respondent says that there was no need to ask for Wick-remeratna’s support because, he says, he presumed he was a supporterof his. Tn fact it would have been more correct had i>e said that he hadthe clearest evidence of his support right- throughout Ihe campaign.Wickremeratna. though lie denied that he over went by bitr.svif to thorespondent’s office and stated that It was only on a few' occasions that heaccompanied one or moro of the Leftist members who had gone fromColombo to the respondent’s office, his statements were contradicted byWarakaula, the clerk in charge of tho respondent's office, who saidthat Wickremeratna used to go there on his own, smile and chat withthe other supporters who came to the office.
The question as to who made payment for printing the pamphletsPI and P13 also throws a great deal of light on the relationship in whichWickremeratna stood to the respondent. Wickremeratna was a memberof tho Lanka Sama Samaj Party, and probably the most prominentmember in Kandy. I have already indicated my view that Pi wascomposed by Wickremeratna. P13 has been issued by the LankaSama Samaj Party under its name. The order sheetP6 in respect of thepamphlet PI is entered in the name of the respondent as the person onwhoseaocountit was being printed. When payment was made in respectof PI and P13, a receipt was originally written out in favour of the res-pondent for a sum of Ks. 281-75 {P7«) which represented the cost ofprinting the two pamphlets PI and P13 as well as certain other printingdone for the respondent. The circumstances under which this receiptcame to be written out are deposed to both by Arumugam, the assistantmanager of the Press, and by Warakaula, the respondent’s clerk ; bothof them state that Warakaula and one Richard Perera, an employeeof the Lanka Sama Samaj Party, each taking a separate bill went to theprinting office and each handed his bill along with the amount shownon his bill but that for some inexplicable reason one receipt was broughtfor the aggregate amount of the two bills in the name of the respondentand that on Warakaula noticing the discrepancy he refused to take it;that thereafter, typed receipts, not receipts from tbo ordinary receiptbook P7 but on loose memorandum forms were made out and handed to
570
NAGALIXGAM J.—Don Philip c. Illanyaratne
each of them in respect of the payment each had separately made.No explanation was forthcoming even at the inquiry as to how the cashiercould have made such a mistake in aggregating two sums paid in respectof two bills presumably in the name of two different periles and issuingone receipt in favour of one of them. Nor has any satisfactory accountbeen given as to why, if the error was detected then and there, the incor-rect receipt was not cancelled and two fresh receipts written out from theordinary receipt book of the firm. The assistant manager attempteda doubtful explanation which was proved to he false. He said thatas the receipt had already been written out no other receipt from thereceipt book could have been issued according to official routine, but aperusal of the receipt book showed, and the witness then had to admit,that there were occasions when incorrect receipts were canc elled and theoriginal of those receipts loft either in the receipt book-itself or put ona file for audit purposes. In fact by the issue of receipts on loose sheetsof paper without even retaining copies of them the door would be leftwide open to perpetrate fraud. I do not believe either the assistantmanager Arumugam or the clerk Warakaula in regard to their stories.The conclusion I reach is that the receipt P7a was originally correctlywritten out for the sum of Rs. 281’Tfi in favour of the respondent.—thisis in keeping at least with the order sheet PC in respect of the pamphletPI—but was at a subsequent date, that is to say, at a date when receiptsbearing the next consecutive numbers had been utilised and could nothave been substituted for it, altered by the addition of the name ofLionel Cooray and by filling the blank space above the signature of thecashier with the particulars of two separate sums in respect of the res-pondent and Lionel Cooray; the alteration itself is clumsy—vide thevertical line drawn after the name of Jllangaratne—and apparentlydid not meet with the approval of those concerned, and home a receiptwas typed ou a loose memorandum form, which is the document. Rla.I hold on the evidence before me, in spite of the donial of the respondent,that it was he who made payment for printing documents PI and PI 3.Now this payment proves that the respondent was quite prepared toadopt any of the aets both of Wickremeratna in his personal capacityand of the Lanka Sama Samaj Party, for I am satisfied that the respon-dent himself personally had no hand in drafting or causing to be printedeither of the pamphlets PI and P13. I am at the moment consideringthe question of the relationship of Wickremeratna io the respondent,and having regard to all these circumstances, I find it difficult to escapethe conclusion that tho respondent loft the business of his election inthe hands of Wickromeratna to tho fullest extent that Wickremeratnawas prepared to undertake, adopting and ratifying his act> withoutquestion, and that Wickremeratna wont as far as he could to promotethe candidature of tho respondent. In these circumstances Wickreme-ratna can only be properly described as a general agent of the respondentfor the purpose of the election, and I hold him to be such. In thisconnection vide the judgment of Grove J. in tho Wakefield ease1.
In regard to Wilson llatnayake there is no proof of a direct connectionbetween him and the respondent but there is ample proof that WilsonRatnayake himself was a member of tho Lanka Sama Samaj Party and1 2 O' M. and H. 100 at 102
NAGALINGAM J.—Don Philip v. Illanyarutnt
that the Lanka Sama Samaj Party was in dose contact with the respon-dent's agent Warak&ula and with Wickremeratna, who, as I said was hisgeneral agent and also a member of the Lanka Sama Samaj Party andthat tho Lanka Sama Samaj Party placed, as the witness Lionel Cooraysaid, although he attempted after tho luncheon interval to retract theevidence, the services of its office and its workers at the respondent’sdisposal, and that in fact right through the campaign its workers workedfor tho respondent. Not only did the members of the Lanka SamaSamaj Party address meetings of the respondent on his behalf and athis invitation but they had lists, as Lionel Cooray says, of a certainflection of the voters with which its workers went about from house tohouse making a check up and also assisted the respondent on the pollingday at the polling booths.
The legal position of a political association and of its active memberstowards the candidate is set out lucidly in the judgment of Mr. JusticeLopes in the Sewdley case1 Said the learned Judge :—
“ There may …. be a political association in a boroughadvocating the views of a candidate of which that candidate is not amember, to the funds of which he does not subscribe, and with whichho personally is not ostensibly connected, but at the same time inintimate relationsb ip with his agents, utilised by them for the purposeof carrying out his election, interchanging communication and informa-tion with his agents, respecting the canvassing of voters and theconduct of the election and largely contributing to the result.. Tosay that the candidate is not responsible for any corrupt acts donoby au active member of such an association would be repealing theCorrupt Practices Act and aan.ction.ing a most effective system ofcorruption.”
Applying the principle of law thus enunciated to the facts as found byme, it must follow that the Lanka Sama Samaj Party and its activemembers were constituted agents of the respondent. I hold that therespondent is responsible lor the illegal acts of Wilson Ratnayake, w howas not merely a member of the Lanka Sama Samaj Party but an activeworker of it; and furthermore Wilson Ratnayake had addressed electionmeetings of the respondent at the latter’s invitation or with his knowledgeand consent and, as was rightly said by Counsel for the petitioner,addressing an audience of voters is one of the most effective large scalemethods of canvassing on behalf of the candidate, and canvassing withthe knowledge and consent of a candidate has been regarded as strongevidence of agency.
With respect to the pamphlet PG3, there is, as remarked earlier, noproof of its authorship, although on the face of it it bears the name ofone Marimuttu, the Secretary of the Kandy Branch of the Ceylon IndianCongress, who disowns it; nor is thereproof as to the printer or publisherof it. The petitioner’s case is that one Fernandez who is the Presidentof the Peradeniya Branch of Ceylon Indian Congress distributed it amonga soction of the voters. Three of these voters, who are all Municipallabourers, namely, Sinniab, Segan and Pitchamuttu, all testify that onMay 17, 1948, some time about noon or 12.30 in the afternoon copies1 3 0' M. and S. 145 at 146.
572
NAGALIN'GAM J.—Don Philip v. lllangaratM
of this leaflet were distributed by Fernandez, who also handod to eachof them a copy. The respondent has sought to challenge the evidenceof these witnesses. Too much emphasis cannot be laid on the timespoken to by these witnesses who are men in a humble station in lifeand who only count the periods of the day by events rather than byhours of the clock. Their evidence, however, is that it was after theyhad returned for their noon-day meal that the leaflet was distributed.The respondent says that he went in the company of Fernandez tocanvass votes among estate labourers on certain estates on the day inquestion and that be returned to Kandy at about 2.30 or 3, leavingFernandez and certain others on the estate. Mr. Rajaprior, a witnesscalled by him, however, says that the respondent left by CAr at about12 or 12.30. Fernandez himself says he returned to Kandy at 2.30 or 3but it is in evidonce that he remained the whole of that afternoon inKandy. I am not propared to say that the testimony of the threeMunicipal labourers is falso on the point. I hold that Fernandez diddistribute P63 among the labourers. In regard to the agency of Fer-nandez, it is to be obsorved he was one of the active workers of thoCeylon Indian Oongraqs, which body was working with full knowledgeand consent of the respondent for furthering his candidature and, whatis more, the respondent himself went with Fernandez- canvassing voters.Fernandez, therefore, is a person from tho consequences of whose actionsthe respondent cannot seek to oscapc liability.
That Wilson Ratnayake, C. B. Warakaula, John Wecrasekera, CharleslV.rera, Rajaprier and certain others had also distributed one or otherof the pamphlets PI and P63 formed the subject of other charges ;but excopt in regard to Warakaula, one or other of the essential elementsnecessary to bring home the charge to the respondent was found to bewanting ; for oxauiple, in the case of Charles Pcrcra, who appears to be anewspaper boy, while there is proof that ho did distribute the pamphlets,proof that ho did so as agent of or with the knowledge of the respondentis totally lacking; to take another instance, in regard to Rajaprier 1do not accept the evidence of Deen that Rajaprier did hand to him acopy of the document P03. I do not propose to refer to all the othersspecifically. In so far as the charge against Warakaula is concerned,I accept the evidence of Martin Silva on the point that Warakauladid distribute and band to him a copy of PI. Now' Warakaula himRelf isamply provod by tho testimony in the case to have been an agent of therespondent, and the respondent is therefore responsible for the acts ofWarakaula.
Certain false statements alloged to have been published in a papercalled the City News were also given in evidence by the petitioners,but as neither agency nor knowledge or consent of the respondent hasbeen proved, I do not propose to examine the evidence but contentmyself with recording my finding that those charges are not established.
I now turn to the charges formulated under section 58 (1) (c). Thecharges were persisted in in respect of the two documents PI beaded“ An Advocate for an Imposter ” and P63 entitled “ The Dishonestyof X). Ramanujam, M. P. for the Division of Alutnuwara ”, but were notpressed in regard to the others. Section 58 (1) (c) makes it a corrupt
NAGAL1XGAM J.—Thn Philip v. Illangaratnc
573
practice for a person inter alia to pTint, publish, distribute, or cause-to be printed, published or distributed any handbill which refers to anyelection and which does not bear upon its face the names and addressesof its printer and publisher. The document P63 does not expresslyrefer to an election, much less to the bye-election in question. Its primaryobject, as a perusal of it would reveal, is to discredit Mr. Ramanujam,a Membor of Parliament, who, it would appear from the evidence, wascontesting an office in the Ceylon Indian Congress, the rival candidatefor the office being Rajaprier. The circumstance that this leafletprinted and issued for one purpose was also availed of to discreditone of the candidates at the bye-election whom Mr. Ramanujam himselfsupported is by itself insufficient to bring the document within thocategory of documents that have reference to the election. It seems tome that before a document could be said to be one which falls within theclass of publications referred to in section 58 (1) (c) it must be shownthat it.cither expressly or at any rate by implication refors to the election,and any document, however mischievous it may be in its effect on theelection itself, if it has no reference to the election, though made use offor false propaganda against the candidate at the election, is outside thoscope of this section, and a person who prints, publishes or distributescannot be held to he guilty of a corrupt practice. I therefore hold thatthe charge in respect of document P63 fails.
As regards the document PI, however, although it bears the nameand address of the printer, namely, Kingsley Press, Kandy, which Iconsider to constitute a sufficient compliance with the law, it does notbear the name and address of the publisher. The manuscript of PIbears the name of one A. Nissanka as the author thereof, but it is clearlyproved that Nissanka did not and could not have drafted the document.As stated earlier, there is evidence that Roland Jayasekera is the authorof the document, but in my opinion, as indicated already, the author,at least in part, is Wickreincratna. Now, the question arises, whywas not even the name of Nissanka not printed ? Was it accidentalor deliberate ? It is not possible to take the view, especially when theevidence shows that the name of Nissanka was used in order to concealthe identity of the writer, that the omission itself was other than deli*berate. If deliberate, as it must necessarily be, then the existence ofa corrupt mind behind the publication becomes apparent. In thisview of the finding; the omission to print the name and address of thepublishers falls both within the mischief the Legislature intended toprevent and the letter of the law. The printing of the name ofthe author of a document, even if A. Nissanka’s name did appearon the face of the document, would in itself not have been asufficient compliance with the requirement of tho law that the nameof the publisher should also be stated, for one person may be theauthor of a document, a second may be the printer and a third thepublisher. Tho law apparently does not concern itself with theauthor of a document. What it does concern itself with is in regardto the printer and the publisher. But for the discovery by thePolice of the manuscript of PJ, it may well nigh have beenimpossible to ascertain who was responsible for having it printed orpublished. The evidence now is that both Wickremeratna and Lionel
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XAGALINGAM J.—Don Philip «. iUa^aratnt
Cooray caused it to be printed and, according to Lionel Cooray, membersof the Lanka Sarna Samaj Party -were responsible for distributing it.1 have already held that Wickremeratna was a general agent of therespondent. Lionel Cooray, as Secretary of the Lanka Sama SamajParty, and as one who worked on behalf of the respondent who, as indi-cated earlier, fully adopted the actions of the members of the LankaSama Sarnaj Party, also takes on the rolo of an agent of the respondent.The printers to whom, as I have already held, payment was mode by therespondent for printing the leaflet PI, also are constituted his agents,and the respondent, in this view of the matter, must bo regarded as oneof the persons who caused the.documcnt PI to bo printed.
In the result I find that the respondent is guilty of corrupt practicesin that («) he personally and by his agents made and published duringthe election false statements of fact in relation to the personal characterand conduct of Fred de Silva for the purpose of affecting tho latter’sreturn and that (6) ho caused to be printed and caused his agents toprint, publish and distribute (he document Pi which does not bearupon its face the name or address of its publisher.
For the foregoing reasons, I declare the election of tho respondentvoid. The respondent also thereby becomes subject to the incapacitiesset out in section 58 (2) of the Order in Council.
There is prima facie proof that tho following persous aro guilty ofcorrupt practices:—
(a) Under section 58 (1) [d)—
H. A. C. Wickremeratna,
Wilson Ratnavako,
Lionel Cooray,
(!) S. S. Fernandez, and
C. B. Warakaula ;
(£») Under section 58 (1) (c)—
The Manager, Kingsley Press, Kandy,
H. A. C. Wickremeratna,
Lionel Cooray,
Roland Jayasckera, and
A. Nissanka.
There is also prima facie proof that Fred de Silva is guilty of an illegalpractice in that he, on his own admission, made payment to a person,namely, Ganoshan to translate his election manifesto into Tamil and alsothat lie did not include the sum of R.=. 40 paid to that person in his returnrespecting election expenses.
Notices will bo issued by the Registrar on all those persons directingthem to show cause on a day to be named why a report should not be madeagainst them in terms of section 82 of the Ceylon (ParliamentaryElections) Order in Council, 1946, as amended bv the ParliamentaryElections (Amendment) Act, No. 19 of 1948.
The Attorney-General will also bo noticed to appear as amicus curiaeat the inquiry.
As regards costs of this inquiry I shall make order after hearingCounsel-
Election declared void.