Dr. R. SARAVANAMUTTU, Petitioner et al. v. M. JOSEPH DE SILVA, Respondent

074-NLR-NLR-V-43-Dr.-R.-SARAVANAMUTTU,-Petitioner-et-al.-v.-M.-JOSEPH-DE-SILVA,-Respondent.pdf


294
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
1941Present: de Kretser J.
Dr. R. SARAVANAMUTTU, Petitioner,
v.M.JOSEPH DE SILVA, Respondent.
In the Matter of the By-election for the Colombo North
Electorate.
Election Petition No. 1 of 1941.
Election petition—Charge of general intimidation—Judge not bound to scruti-nize whether it affected result of election—Corrupt treating—Object ofinfluencing the vote—Specific charges in petition—Brief statement offacts—List of witnesses to be filed with notice to other side—The Ceylon(State Council Elections) Orders in Council, 1931 and 1935, Articles 52,53, and 74.
Where there has been general intimidation at an election, it is no partof the duty of the Judge to enter into a scrutiny to see whether upon theevidence without such intimidation the result would have been different.
Corrupt treating, in order to avoid an election, must be done with theobject and intention of influencing the vote.
Where specific charges are made, the petition should contain a briefstatement of facts, indicating the character of the offences chargedagainst the respondent.
The respondent should apply for particulars, if he desires any.at the earliest moment.
List of witnesses should be filed with notice to the opposite side withina reasonable time and should sufficiently indicate who the witnesses are.
No further lists should be allowed, after the hearing begins, withoutan express order of the Judge.!
T
HIS was an election petition to have the election of the respondent,who was elected member of the State Council for Colombo North,
declared void on the following grounds
(a) treating within the meaning of Article 52 of the Ceylon (StateCouncil Elections) Order in Council.
(b). Undue influence within th£ meaning'of Article 53.
General intimidation and impersonation under Article 74.
J. ,E.- M. Obeyesekere (with M. M. I. Kariapper and C. S. BarrKumarakulasinghe), for the petitioner.
U.A. Jayasundere '(with him V. F. Gunaratne, A. C. Alles, S. R.Wijayaiilake, A. C. Ameer, P. Malalgoda, and G. P. A. Silva), for therespondent.
December 22, 1941. de Kretser J.—
On April 26, 1941, the respondent was elected Member of the StateCouncil for Colombo North. This is a petition by the unsuccessfulcandidate Dr. Saravanamuttu, who alleges (a) Treating—within themeaning of Article 52 of the Order in Council, (b) Undue Influence—within the meaning of Article 53, and (c) General Intimidation andImpersonation on a large scale under Article^ 74.
DE KRETSER J.—Dr. R. Saratanamuttu. v. M. Joseph de Silva.
295
At the hearing six charges of treating and twenty-one of undueinfluence were formulated, of which only eight were seriously pressed.Most time and attention were devoted to the general charge. Ninety-five witnesses were called on both sides. It is unnecessary to deal withthe evidence of each individually.
When the Colombo North seat fell vacant the respondent was chosenfor want of any other Labour candidate. He was chosen at a meetingof the Labour Party held on March 2, 1941, when he took an “ oath ofallegiance ” to the Party. • Since that date Mr. Goonesinha states thathe strained every nerve and used the full resources of the Labour Partyon behalf of the respondent. Respondent himself was incapacitatedfrom taking any but a little part in the campaign which followed.Rather pathetically he stated that greatness had been thrust upon him.This may be true, but I doubt whether he quite understood what he wassaying when he accepted the suggestion. At any rate the evidence isthat he sought office. It is quite clear that he was a mere pawn and thatthe real person opposed to the petitioner was Mr. Goonesinha, the leaderof the Labour Union and its allied organizations.
The evidence shows that the petitioner’s family has been long residentin the electorate and commands considerable influence and respect.The petitioner himself is a medical man.
At the first election held under the present constitution the petitionerwas returned for Colombo North but was unseated on an election petition,the charge against him personally being one of bribery, the “ bribery ”consisting of his having given a comparatively small donation to a school,the management and staff of which possessed some influence. In theby-election that followed his wife was returned as the Member forColombo North and having been unseated on a technical objectionshe was again returned. She was re-elected in 1936 and continued tohold the seat until her death in Januarj, 1941. There is evidence thatthe petitioner, besides being a medical man and a politician, was alsoassociated with social service work in the electorate.
The petitioner belonged to the Independent Labour Party and heclaimed that it had existed before the Labour Union which, according toMr. Goonesinha, came into existence in the year 1922. The IndependentLabour Party appears to be moribund and the petitioner joined the.Ceylon National Congress in October last. Ordinarily elections for theState Council should have been held early this year but they have beendeferred in consequence of the war. •
It was alleged that many Tamils did not support the petitioner becausethey disapproved of his joining the Congress party. The petitionerhotly denied this and challenged respondent to produce a single Tamilwho had voted against him. The challenge was not accepted. Theevidence before me clearly indicates that the racial cry was raised onbehalf of the respondent at a very early stage and that the effect of it wasto knit the Tamils together.
There had been grave disorder at a meeting held at Lukmanjee Squareon 'April 6 on behalf of the petitioner, at which prominent Sinhalese—including two Ministers—had made speeches. When it was put toMr. D. S. Senanayake that the public resented a claim which had been
'^96 DE KRETSER J.—Dr. it. Saravanamuttu. v. M. Joseph de Silva.
made at that meeting that the Congress was responsible for securingadult franchise he denied this and explained that the Congress Partycould have made no such claim since it had never advocated such afranchise. I doubt very seriously whether the people of that neighbour-hood would have been much disturbed by any such claim had it beenmade. It was suggested to another witness that the presence of aBuddhist priest on the platform had been resented and he replied that afew persons took exception to it and left the meeting and that was all.It must be noted that one or more Buddhist priests spoke at meetingsheld on behalf of the respondent. Quite clearly the disorder on thisoccasion was due to other tauses.
I desire now to deal generally with the evidence given by the manyPolice officers who were called.
The position which the respondent took up was that the generalintimidation alleged could not have existed in view of the excellence ofthe arrangements made by the Police. As I pointed out at the time,the evidence of the Police officers is not inconsistent with the evidenceled for the, petitioner : they rather run on parallel lines. The Policearrangements were excellent and the credit for this must be given mainlyto Mr. Superintendent Baker. But the Police are quite frequentlyoutwitted, there being no limit to the scope of human ingenuity.Organization on the one hand may be met by organization on the other.Besides, the Police are rather handicapped not only in respect of thepowers which they possess but-also by the lack of public support, of whichMr. Baker rather complained. The people who understand the Policebest are perhaps that section of the community which comes most ofteninto contact with them. It is from that section that you get peoplewho have no hesitation in going to the Police. They attach' undueimportance to what they call “ entries ” made at a Police station, andoften in the course of a criminal trial one notices a race between thecomplainant party and the accused party to be the first to lodge acomplaint. I believe What the petitioner said to be true, viz., that theaverage law-abiding person avoids going to the Police station. Theattitude of subordinate officers of Police may be partly responsible forthis, especially having regard to men of an older type, for no one candeny that considerable Improvement has been made in the standard ofefficiency and behaviour‘of the Police. Too often, however, the reluctanceis‘due to the timidity of people to approach those in authority, particularlyuniformed authority.
The Assistant Superintendent of Police for Colombo North is relatedto the respondent and consequently held an embarrassing position.There is no reason to believe that he did not do his duty faithfully.It is suggested, hovrever, and there is force in the suggestion, that sub-ordinate members of the force may have imagined that they would bedoing him a service by espousing the cause of the respondent in a greateror less degree, and that respondent’s, agents fostered the idea that mis-conduct not involving a breach of the peace would not receive attention.Quite early the petitioner saw this officer, informed him of the growingdisorder, and asked him to deal firmly with the situation. It wassuggested to the petitioner that he had attemped to intimidate that
DE KRETSER J.—Dr. R. Saravanamuttu u. M. Joseph de Silva. 297
officer and he warmly denied the charge. I inquired whether he wasbeing called as a witness and was informed he was not. Had there beenany truth in the charge I fail to see why he was not called, nor do Iunderstand wherein lies the intimidation in bringing facts to the noticeof an officer and asking him to do his duty. The remark might havesuggested suspicion of the officer’s impartiality and he might haveresented the insinuation but there is no evidence whatever to this effect.
It was also suggested that the petitioner had asked the AssistantSuperintendent to induce the respondent to withdraw his candidature.The only excuse Counsel could make for this suggestion was that therespondent had instructed him to that effect, at that very moment andCounsel had put the question straightaway. I eould have understoodit if the suggestion had been that in consequence of his peculiar positionthe officer had asked the petitioner to relieve him by withdrawing fromthe contest. The natural reaction of that officer would be to be extravigilant and the natural reaction of the respondent and of Mr. Goone-sinha would be to warn their followers to do nothing which wouldexpose that officer to greater suspicion than already existed. Couplethese facts with the precautions taken by Mr. Baker and with the desireof the Police to prevent only disturbances or breaches of the peace andsuch acts as would amount to criminal offences and one understands theevidence led for the petitioner to the effect that the persons responsiblefor the intimidation were careful to avoid such Police observation andsuch conflict as would expose them and betray their cause.
The almost invariable question put to the petitioner’s witnesses incross-examination was whether they had made any complaint to thePolice, and quite often the explanation given was that they had com-plained to the petitioner or to one of his brothers. Counsel for respondentreceived rather a rude shock when the petitioner came into the box andstated what vigorous action he had taken ; so surprised was he that hesuggested to petitioner that he was, at that early stage, laying the founda-tion for an election petition. Considering how consistently members ofpetitioner’s family had been successful at previous elections, it is difficultto believe that right at the very outset the petitioner feared—and in factanticipated—that he would be defeated.
On April 7, the petitioner interviewed the Inspe.ctor-General of Policeand on the 8th Mr. Baker issued detailed instructions. He says thatthose instructions were prepared quite independently of the informationobtained at the interview and prior to the meeting at Lukmanjee Square,that they were sent out as the result of information which had alreadyreached him from Police sources. It is clear therefore that the petitionerwas not inventing a state of affairs with his eye on a possible defeat.
Before I pass on to another aspect of the case, I might refer to theEast Kerry Casein which also the case of intimidation was met by theevidence of the Police officers who said that they did not observe muchviolence and that in their opinion the election, so far as they saw, wasconducted on normal lines. The district inspector who was in chargehad even thanked the respondent for his efforts to preserve the peace.
o’M & B. VI. 85.
298 DE KRETSER J.—Dr. R. Sarananamuttu v. M. Joseph de Silva.
The Court remarked that “ Notwithstanding this tribute, the fact standsout prominently and uncontradicted that the voters were intimidated fromgoing to the poll. ”
The position of certain other persons has to be considered, and they arechiefly Messrs. Goonesinha and Razik, for I do not think Messrs. Reyaland Dharmasena deserve serious consideration. According to theevidence they are both men of no means, who owe their position asmembers of the Municipal Council of Colombo to the fact that they wereLabour candidates. The evidence also indicates that both of them areaddicted to liquor, and Mr. Reyal gave me the impression of being some-what in liquor at the time he was giving evidence. They both metcross-examination as to their peccadilloes with good humour, Reyalverging at one stage on buffoonery.
Mr. Razik, after a futile attempt at concealment, frankly admittedthat the active part he took in supporting the respondent was due to aspirit of revenge. He supported the petition against Mrs. Saravanamuttuin 1932. In the by-eleetion that followed she was again returned. Atthat election out of a total of 43,776 registered voters only 8,535 polled,respondent’s Counsel who submitted these figures explaining that therehad been no real contest on that occasion. This indicates that Reyalhad no chance of being elected and that the election petition which waspresented had merely a nuisance value.
In the Municipal elections held towards the end of last year Mr. Razikwho had previously represented the New Bazaar East ward abandonedthat ward and sought election for New Bazaar West against Mr. ProctorSaravanamuttu, who had defeated him before New. Bazaar was dividedinto two and who, after the division, had represented New Bazaar West.In an area which was predominantly Muslim, Razik was defeated. Hesays he welcomed his defeat because it demonstrated to his communityhow helpless they were as a minority community ! Yet immediatelyafterwards he attributed his defeat to the fact that there had beenimpersonation on a large scale. But he had to admit that a person ofanother community could not easily pass as a Ceylon Moor and thenexplained that large numbers of Moorish voters had been brought acrossfrom the Pettah Ward. I believe all Municipal elections are held on oneday, but even if it were not so it does seem strange that so many ofRazik’s supporters were so late in going to the poll that others were ableto take their places. His evidence is useful, however, as indicating hisexperience of the tactics employed at elections.
His evidence was important in another respect. He said that he hadtaken strong exception to the petitioner erecting a tent within a few feetof the polling station at Prince of Wales Avenue. Asked to give thereason for his objection, he said the voters of the opposite side would haveto pass that tent and would then have remarks hurled at them whichmight turn them from their original purpose. According to him theseremarks would be nothing more serious than “ Vote for the White ” or“ Vote for the Red ”. When reminded that it was scarcely likely that thepetitioner’s supporters would invite voters to vote for the Red hecorrected himself. But he was sure that such a simple remark wouldaffect a voter and that the time which a voter would have while waiting
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DE KRETSER J.—Dr, R. Saravanamuttu v. M. Joseph de Silva.
to gain entrance to the polling station and thereafter to approach thebooth would not affect the influence of the remark. When asked whethervoters could be influenced with the Police spread all over the place hereplied that the Police could not prevent that kind of thing. He alsoobserved that elections were ruled by thugs, and he hoped for the dawnof a better day. Mr. Razik has had much experience of elections ; he isa strong supporter of the respondent and was called by him ; withoutmeaning to do so, perhaps, he has demolished much of the case set up forthe respondent.
The susceptibility of the voter in India is referred to in the case ofBabu Chhail Behan Lai Kapoor v. Thakur Moti Singh '. In Ceylon theaverage voter at the present time is exceedingly susceptible to remarksthrown at him and quite easily intimidated. Apathy characterises thevoters in many countries but apathy alone cannot account for the manypersons who did not vote. It must be remembered that people have notyet grown accustomed to elections, that many welcome the novelty ofenfranchisement, that an outing and all the excitement of election daywould relieve the drabness of their lives, and that there are enthusiasticpersons to Urge them to register their votes. Mr. Razik’s objection asstated by him cannot be the full truth. No voter could possibly objectto being adjured to vote White or Red, but he might be influenced if thatadvise were coupled with other remarks of a less innocent nature. Ofcourse, if it was part of a design to obstruct the White voters or to subjectthem to barracking, then their proximity to the entrance might enablethem to slip in more easily and Razik’s objection would have somemeaning.
Mr. Goonesinha started what he called the Volunteers of the LabourUnion who have earned the popular name of “ Red Shirts ”. They weara uniform consisting of red shirt, white shorts, and white cap with redstripes. He says that he alone can call them out. They possess a captainin one Wickremesinghe and two sergeants, one of them a labourer namedAgris. There are some 50 or 60 suits of uniform kept in a cupboardat the office, of the Labour Union under the control of the treasurer.On a previous occasion, very recently, Mr. Goonesinha had admittedthat most of his volunteers were ex-convicts, but he modified that state-ment at the present trial by reducing their number and explaining thatthey were all the better for discipline. He' said that this body wasformed on the occasion of Mahatma Gandhi’s visit, that their dutiesconsisted in making arrangements at places of meetings and in throwingout any persons disturbing such meetings, in flanking processions onMay Day, and in keeping order in the street at elections. The Policewill perhaps note that Mr. Goonesinha did not think them capable ofpreserving order on such occasions.
Considering what their duties were, one can see no evidence of anytraining in discipline, though they undoubtedly obeyed Mr. Goonesinha,who says that he always adviced them to pursue peaceful methods and toavoid violence. He quite rightly stressed the importance of organizationand the value of discipline.
1 Jagat Mdrain's Indian Election Petitions, //., 17.
300 DE KRETSER J.—Dr. R. Saravanamuttu. v. M. Joseph de Silva.
Lawrence, one of the secretaries of the Trade Union Congress, acceptedthe description of himself as Goonesinha’s henchman while objecting tobeing called his lieutenant. He was quite right in both respects. Healso shied at the word “ organization ” although he had just beenelaborately describing the arrangements for polling ; when reminded ofthis he accepted the term. Goonesinha coming on later attributed theirsuccess to excellent organization and undoubtedly his claim is wellfounded.
The Tied Shirts were certainly employed for election purposes. In theyear 1936 they were taken down to Weligama to help in the elections there,Goonesinha himself making no less than 18 speeches in one day. Hedid this while himself engaged in the contest for his own seat in Colomboand the respondent was contesting another seat in Colombo. Goonesinha’sevidence indicates that he believed in paying personal attentionto detail; for example, he was not content fo leave the arrangementsfor a -meeting at Ananda College on National Day to Wickremesinghe,who had been associated with him for so many years ; but went there tosee for himself how things were going on. He however asks the Court tobelieve him when he says that in this election he took no more part thangoing round and asking some prominent people to support the respondent,addressing some meetings, and going about on election day and the daybefore in order to see that everything was working smoothly. Headmits that he knew he had to meet a stout opponent in the petitioner,that the respondent was ill and could not go about, that he strainedevery nerve and made his best endeavour, but he says that that bestendeavour was nothing more than he described.
Goonesinha also states that after the Municipal elections held lastDecember there was much talk about the behaviour of his Red Shirtson that occasion, and, though in his opinion there was no cause forcomplaint, he and a few others decided towards the end of January orearly in February that the Red Shirts should not be called out as a bodyin future elections. In this way he endeavoured to .preserve the goodname of Labour from even suspicion. There was nothing, however,to prevent individual members of the corps from doing as they pleasedand making use of the training they had received for many years : therewas nothing to prevent anybody from wearing a garment similar to anypart of their uniform, so it was just possible, he said, that there weresome people seen about who might have been mistaken for Red Shirts.He was certain the uniforms had not been issued because he had notordered their issue.
One has to remember in this connection that Mr. Goonesinha declaredthat sometimes his orders and his wishes are not complied with. Forexample, he is the proprietor of a Sinhalese newspaper called theViraya, printed and published in the premises of the Labour Union,where he has his office. He says that he does not read this paper excepton rare occasions, although it is regularly sent to him, and consequentlyhe expresses surprise and even disgust at some of the contents of thecopies that were produced in Court. He had been reprimanding the
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editor on several occasions and was waiting till this trial was over to dealwith him again. I had to remind him that this trial had nothing to dowith his relations with the editor.
Mr. Goenesinha is supported by Messrs. Razik, Reyal, and Dharmasenaand by Mrs. Jayawardene when he says that the racial cry was not raisedat the meetings held in connection with his election. The Viraya publishedreports of the meetings which clearly indicate that such a cry was raised.Its readers were exhorted to support the national cause andto enlist as crusaders in such a cause. The Viraya is sent, as a matter ofcourse, to every member of the Labour Union, and is said to have acirculation of about two or three thousand. There is ample evidence thatthe racial cry was raised at quite an early stage. The Hon. Mr. D. S.Senanayake knew of its existence even before the meeting of April 6.I do not believe the witnesses who say it was not raised at the meetings.According to the Viraya the Muslims were also commended, so that thesusceptibilities of Messrs. Razik and Reyal were protected. Had theracial cry not been raised at these meetings, then the position would bethat, carefully abstaining from raising such a cry at places where it mighthave attracted unwelcome attention, it was nevertheless raised throughthe medium of a newspaper which Mr. Goonesinha controls and whichhe states exists for the purpose of propaganda. In the hands of an ill-educated and excitable people, such as the labourers and other poorer classesin the electorate, articles such as were found in the Viraya would havebeen a strong incitement and have led to conduct which was not beyondreproach. The big posters produced in Court were used to emphasizethe racial call. They depict the historic contest between Dutugemunuand Elara and the latter is shown falling off his elephant mortally wounded.In another poster a Sinhalese and a Tamil warrior are mounted on horsesand the Sinhalese has decapitated the Tamil. These posters were seizedlater by the Police. In the former a drawing of the respondent is inset ;in the latter the legend includes the word Viraya.
There is abundant evidence of the presence of persons in red shirtsand of women in red jackets and I accept the evidence that theyseriously interfered with the White voters. Goonesinha disclaimedall connection with the red jackets. The Order in Council in 1931gave the franchise to women. The Red Shirts were already in existenceand admittedly they were used for election purposes, not en masse butscattered about in groups. When women were enfranchised a similarbody of females would seem to be a natural corollary.
Now, we get some very useful evidence from Mr. Davidson, theRegistrar-General and Returning Officer for this election. He .was thepresiding officer at the polling station at Lukmanjee square in the 1931and 1932 elections. He stated that in view of his experience on thatoccasion he considered Lukmanjee square quite unsatisfactory as a pollingstation and that if he had been appointed in time he would have selectedanother place, if possible, for this election. I entirely agree with himin this respect. He had heard of a body of men called the Red Shirts,and it was in answer to a question whether he had seen the men called“ Red Shirts ” that he said—“ I believe I have seen women in red uniformbut I do not remember seeing the men. My impression is that43/23
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some of them took part in the previous election, that was in 1931.1 am
really vague about it. ” This means that Mr. Davidson had seen a bodyof women in red uniform ; he was only doubtful as to whether they hadtaken part in previous elections but believed they did. The women inred uniform appear to have come into existence as soon as women wereenfranchised. It is difficult to believe that Mr. Goonesinha with his keensense of organization and his knowledge of the usefulness of his RedShirts would have had as little to do as he pretends with a similar body ofwomen in red uniform. I accept the evidence of very- respectable personsthat the modus operandi was that these selected persons should pose asvoters and in that guise allow those supporting respondent to pass but toobstruct, annoy and intimidate those supporting the petitioner. Theywere- very careful to avoid Police attention. The Police were compara-tively few in number and especially at Prince of Wales avenue and Grand-pass they were controlling large numbers of voters, quite apart from largecrowds of supporters and a certain number of people who were merelyattracted there by curiosity.
Lawrence stated that the Police would move on the crowd, who wouldthen proceed to one spot and when the Police came there they wouldreturn to the place they had just left. The evidence led for the petitioneris that the Police on an appeal being made to them did often move thecrowd at the entrance to a polling station but they would always comeback again.
Inspector Jayatilleke spoke of a “stationary crowd” at the Vine street'polling station. There is evidence of similar stationary crowds at otherpolling stations.
It will be convenient at this stage to deal with the conditions on pollingday. Mr. Baker had had information which led him to fear that therewould be serious disturbances and even rioting. In P 47, written twodays after the election, the petitioner refers to his having kept an under-taking to hold his men down and makes vehement complaint against thePolice. Vehemence is a weakness of the petitioner and must often anta-gonize those with whom he has to deal. No question was put, nor is thereany evidence as to the date when any such undertaking was given, nor as toany undertaking by the opposite party. Perhaps there was such anundertaking. Mr. Baker had issued elaborate instructions for theoccasion and conferred with the Returning Officer as to the arrangementsat the polling stations and booths. The general design was to secure thequeueing up of voters and to regulate admission into the polling booths.In many cases Mr. Baker’s intensions seem to have miscarried. Thenotable exception was the polling station at St. Benedict’s College, whereMr. Baker says he saw the best queueing he has yet seen in Ceylon. Thephotograph R 3 shows what happened at the women’s section. InspectorMichael was in charge here. There was no complaint regarding thepolling of the men voters and there is the evidence of Mr. Gonsal, a timidold gentleman who lived just opposite the entrance, that everything wasquiet there ; he himself had voted in the quiet- hours of the afternoon.There is only the slightest complaint regarding the women’s section.The witness who spoke to this had had experience of what was happeningat another station and says that as he drove off after dropping some
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women voters he saw them being interfered with as they climbed the stepson one side leading up to the entrance. It is possible that his inferencewas wrong.
Vine street and Green street are good illustrations of what was not done,and in each case the Inspector-in-Charge said that he had acted on theorders of the Presiding Officer. During the trial witnesses and evenCounsel frequently confused the polling station with the polling booth,and I am afraid some of the presiding officers made the same mistake.Instructed to see that only a limited number were admitted to thepolling booth they gave orders that only a limited number should beadmitted to the polling station.
At Vine street the polling booth was in a school situated well down aspacious garden. The number of voters was not large and a queue formedinside the polling station would have protected the voters from unwelcomeattentions and prevented unnecessary delay. Inspector Jayatilleke saysthat the polling here was practically over by ten o’clock but thatthe stationary crowd remained throughout the day. The arrangementhere was for the Police to admit five persons at a time into thegrounds. These would find their way to the polling booth, at theentrance to which stood a constable who had nothing more to do than tosee them pass in and then signal so that five more would be admitted.Working people anxious to get to their work were needlessly held upon the road while the staff at the polling booth had quite a comfortabletime, the Inspector himself spending most of his time inside the pollingbooth apparently.
There is the evidence of Mr. Proctor Wijeysinghe that an orator on thesteps leading to a temple right opposite the entrance had harangued thecrowd, but the Inspector heard no speeches and only songs sung by a manthat afternoon which he thought were comic songs and which amused thecrowd. The sample of a “ baila ” given in Court showed that whatwould be funny to a neutral might be very annoying to the victim. Thewitness, Candappa, who seems to spend most of his time on an easy chairand who dallied at the entrance talking to others when he went up tovote in the afternoon, had not heard even the singing, though he livedquire close to the polling station and could overlook the steps leadingup to the temple. Jayaweera, called by the respondent, had apparentlybeen badgered by both sides, who had sent cars to fetch him early in themorning. He says he slipped out in the afternoon in his own rickshaw,carrying both red and white tickets in his pocket,—that on the way heinquired from voters who were returning how things were and wastold that speeches and singing were going on. The speech-making there-fore was not an invention of Mr. Wijeysinghe’s, due to his warm partisan-ship, as Counsel suggested Marshal Perera, a stalwart on petitioner’sside, says that he went to Vine street at 10.30 or 11 a.m. and whilehe would not say that everything went smoothly there, he had no causefor complaint. He looked quite equal to any toughs on the opposite side.
At Lukmanjee Square there was queueing too but not as much as theremight have been. With a space extending for about 50 yards there wereonly admitted at most about 100 men and 100 women respectively; •according to Inspector Khan only 25 or 30.
304 DE KRETSER J.—Dr. R. Saravanamuttu y. M. Joseph de Silva.
Mr. Evarts, the Assistant Superintendent of Police, did not see Khanthere when he was at Lukmanjee square between 11 and 11.30 a.m. ;he must have been otherwise engaged. Mr. Evarts saw constablesregulating the queues. He estimates the number he saw at each entrancethen to be roughly 40. This was a time when at all the polling stationsexcept the Cathedral Girls’ School there was a lull in the polling. Heattempted to give an explanation as to why these others had not beenadmitted—if they were really voters—by saying that if people were spreadalong throughout the length of the enclosure there would have been thepossibility of their straying where they should not have gone andcollecting the ballot-papers which others were willing to sell. Accordingto him, the more indifferent voters secure their ballot papers, which theysecrete, pretend to vote, and then sell them. But as separate exits wereprovided close to the polling booths one would have thought it waseasier for them to dispose of their ballot papers outside than within theenclosure under the very eye of the police. Presumably the number ofpersons selling their ballot papers would be small, but even if they formeda considerable portion of those inside it is a sorry confession that a sub-inspector with two constables could not control more than 100 men,with constables in addition at the polling booth and at the exit and aninspector to help most of the time. Unfortunately this evidence cameafter that of Inspector Khan, who was not therefore questioned on thepoint. I do not think the explanation is correct.
Mr. Baker’s scheme for the Police was to have the inspectors of therespective divisions in general charge of their divisions, an inspectorfrom an outside area being in actual charge of each polling station. Thepolice from outside were on duty from morning till 11 o’clock and againfrom 2 p.m. till closing time. The local police relieved them in the intervaland took charge after the election. Mr. Baker had carefully instructedhis men that—
“ The by-election for the vacant Colombo North Seat to be held onApril 26, 1941, will cause a great deal of trouble, both before andafter the event.” ….“ There is considerable information
that owing to strong feeling in this by-election there is a possibility ofdisturbances, preceding the day of election, on the day of election,and subsequent to the day of election. ” (R 16).
He gave detailed instructions regarding processions, which were to bestopped, explaining the instructions issued by the Returning Officer andtelling them that the responsibilities of the Police for maintainingorder outside the polling stations were clearly laid down therein. Heemphasised the importance of effectively controlling the entry of votersto the polling stations and of taking precautions to enforce queueing up.They were to disperse two or more persons taking part in a discussionwith obvious bad feeling and see that everything possible was done tokeep order and prevent a breach of the peace. Finally, they wereexhorted to carry out their duties with fairness and good humour. Therewere other elaborate instructions.
I have already indicated how entry to the polling booths was regulatedand not so much entry to the polling stations, inspectors going out to the
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road only occasionally. The exhortation to act with fairness and goodhumour would of course be interpreted by different officers in differentways. Inspector Khan’s interpretation of it was rather unfortunate.
No evidence has been led regarding two polling stations in the Pettaharea where Inspector VanderStraaten was in charge. As to the Mutwalarea no evidence was led regarding the De ha Salle School polling station.I have already dealt with the Vine street station, and there remains thepolling station at St. John’s School, Mattacooly. This station wasrightly condemned by both Mr. Davidson and Mr. Baker as being theworst possible place for the purpose. The school is situated behind achurch and between them is a narrow passage. The arrangement wasthat the women voters should go down a wide passage leading from theroad to the church, proceed to the right passing the porch of the church,under which were seated the cl.erks assisting the Presiding Officer. Voterswould then go round the church ; male voters before doing so comingdown a lane running parallel to the passage referred to and entering thepremises. To separate them from the female voters the passage wasdivided by means of a rope. Voters passing out of the premises throughseparate exits into the lane would meet the incoming male voters beforethey reached the road. The passage to the booth was tortuous and welladapted to crooked practices. The inspector appointed to be in chargefailed to turn up and Inspector Eliatamby, who was in general charge ofMutwal area, had to ask Sub-Inspector Bastiansz of the Crime Policeto take charge of the polling station. Inside every polling booth werestationed an inspector and constables of the Crime Police to deal withoffences committed there, such as impersonations.
Now, between the lane and the passage is the house and gardenoccupied by Peter Ferdinandus, Secretary of the Mattacooly LabourUnion and agent for the respondent in that area. On the previous daya tent or awning was erected in that garden where, it is alleged, voterswere treated the day before the election. Red voters were conductedto this tent along the passage, into which a gate opened a good way downthe passage. It is stated that the women voters entered the passageonce more and went towards the cburch close by, while the men enteredthe passage and went up to the road, going along which they reached thelane intended for them. The result was that White women voters weremingled with the Red voters for the greater part of the passage and hadalso to pass the congregation of Reds in the premises of Ferdinandus ;coming out after voting they were again thrown among the Reds as theycame up the lane.
A woman called Pavistina is said to have played a prominent part herefor the Reds. She is ordinarily to be found at Saunder’s place in thePettah, and Inspector VanderStraaten says she is not of good character.Mr. Goonesinha says she misbehaved at a May Day Celebration and wasturned out by him. It is in evidence that this woman was among thoseassembled in the Gallery of the State Council when the respondent tookhis seat there. It has not been explained why she should have left the-Pettah for the Mattacooly polling station on election day and there isevidence how she behaved on that day. I have no reason to disbelievethe evidence that voters were interfered with that. day.
306 DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
In the Kotahena area there were three polling stations; namely,St. Benedict’s College (already dealt with), Green street, and CathedralGirls’ School. Regarding what happened at Green street we have theevidence of a clergyman, the Reverend Mr. Hitchcock, who gave hisevidence with restraint and whose evidence I accept. Inspector Jansze’sevidence is not in conflict with it and in fact he said he would not contra-dict the reverend gentleman. It was urged, however, that this witnesswas a strong partisan and that one bit of his evidence was demonstrablyfalse. Mr. Hitchcock had -stated that about midday a drunken mancreated a disturbance in front of the “ office (as it has been called) of thepetitioner, which was opposite the polling station. He reported thematter to the sergeant who sent the man away. In cross-examinationhe said he had seen the Assistant Superintendent and the Inspector onceand had spoken to the Inspector on one occasion and that was inconnection with the incident of the drunken man when the Inspectorordered the Sergeant to send the man away. Inspector Jansze statedthat he knew nothing about the drunken man incident but thatMr. Hitchcock had made a complaint to him about 10 o’clock “thatwhen a. car carrying White flags passed the Red office those in the carwere jeered at and®stones thrown at it. He thereupon posted a constableat.the spot. The reverend gentleman’s recollection that he had spokento the Inspector only once appears to be correct, and I cannot help think-ing that under the stress of cross-examination he made a mistake when heaccepted the suggestion that it was in connection with the incident of thedrunken man. He had already stated in his examination-in-chief thatit was to the Sergeant he had then complained and the cross-examinationwas directed to ascertain how often he came in contact with the Inspector.He may . have confused matters. Police officers, . including InspectorJansze, confessed to their recollection being dimmed by the lapse of time.
I am not prepared to disbelieve the reverend gentleman merely becauseof this discrepancy.
Mr. Hitchcock was asked whether Proctor Saravanamuttu had not suggested to him that he should say that he had seen the AssistantSuperintendent’s car going about flying a Red flag. He denied this,adding that the Proctor had asked him whether he had seen the officer’swife going about in his car flying a Red flag and he had told the Proctorthat he had seen no such thing ; and as he lived just opposite the houseof the. Assistant Superintendent, with whom he was on visiting terms,he mentioned it to him. Had the witness’s account not been correctit would have been the easiest thing to have called that officer. As a.matter of fact Proctor Saravanamuttu when giving evidence many dayslater stated that, having been informed that the officer’s wife had beengoing about in the manner alleged, he sought to verify the informationby questioning the clergyman:he was not cross-examined on this
point.
Now, the information regarding this question could only have emanatedfrom the officer himself or from some member of his household and it wasthe simplest thing to have got the facts correctly before suggesting to aclergyman that the Proctor had thought him capable of giving false
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva. 307evidence. This is the second instance in which incorrect suggestionsinvolving the Assistant Superintendent were made without properinstructions.
The evidence of the reverend gentleman stands uncontradicted on themain points. Starting out early in the morning of election day, flying aWhite flag, his car was held up at the foot of Barber street by a gangwearing red handkerchiefs round their heads, and it was only after he wasrecognised by one of the men as the manager of the school which hischildren attended that he was allowed to proceed. This happenedbetween three and four in the morning, and indicates how early thedesire to obstruct manifested itself.
About 10 a.m. he had reported stone-throwing at cars. About 11 a.m.,as he was walking past the respondent’s office during a lull in the pollingto fetch some voters from an adjacent street, somebody called out “ Shootthe padiri he complained of this to a constable, who did nothing as the“ padiri ” had not identified the man : he was more humiliated thanannoyed, he said, as he had been doing social service in that districtfor so many years. Then at midday came the episode of the drunkenman who came in front of the office of the Whites and abused them.On the following Monday, when he was going out, a man called him“ para demala ” in front of the polling station. That expression washeard quite frequently on polling day, says Mr. Hitchcock, who spoke ofRed Shirts and Red Jackets who went up and down prominently, ofshouting and hooliganism between the respondent’s office and the pollingstation and of noise throughout the day. He had seen red-jacketedwomen seated by the roadside near .the polling station and was frequentlyinformed of obstruction by those conducting voters ; he had referredthem to the police who then cleared the entrance but the crowd sooncame back. He explained that when the White Voters moved up theothers moved up too, as if they were also voters, and so obstructed them.The red women became very unruly.
At a very early stage in the proceedings it was suggested to Mrs. NatesaIyer that what she witnessed and experienced were the nomal incidentsof an election day. She had had considerable experience of electionsin Ceylon as well as in India and she said that she had seen nothing likethis before. It was not quite clear when Counsel was addressing whethershe had been alluding to the polling station at Green street or the one atWolfendhal not far away. Seeing that she sope of voters at Gintupitiyastreet she was probably alluding to the latter. The suggestion that theseincidents were normal was repeated. Police witnesses thought thatwhat they saw was the normal excitement prevalent on such occasions.The law envisages a state of things in which voters are not interferedwith even by enthusiasts and, While it does not call for the ideal of perfectcalm and orderliness, it cannot exercise the virtue of good humour tosuch an extent as to condone what Mrs. Natesa Iyer and the Rev-Hitchcock described.
The evidence regarding the polling station at the Cathedral Girls’ Schoolis very strong and supports the .petitioner’s – contentions. Here thearrangements had been altered at the last moment and both men andwomen voters had to approach the polling booth by a narrow flight of
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DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
steps, barrels placed at the top and bottom of which and connected by astring were designed to separate the two sections of voters. Mr. Evartsnoticed no dividing line, and when he went up the steps men and womenwere going up together.
Inspector Scharenguival stated that he spent a large part of his timeon the pavement near these steps and admitted that owing to the crushhe was unable to see what was going on a few feet away. Mr. Evartgwho visited the place about 10.30 a.m. says that when he went therehe observed two constables having a very hard time controlling the crowdand regulating entry, while others placed along the road were doingnothing. He ordered that two of the latter should reinforce the menat the entrance. Inspector Scharenguivel’s memory was admittedlynot very good and he certainly made a mistake when he said that fourmen were at the entrance from the start. The exits opened on to a shortwide road leading from the main road and this short road was throngedwith people, who could not have been voters waiting to go in. The Schoolis very close to the dockyards and this was- the one station where pollingwas heaviest at midday, when probably the workers had the interval fortheir midday meal.
Mr. Davidson’s experience had been that midday saw the biggest rushto the polls and, keyed up by the Police to expect rioting, he foundcomparative calm at the Grandpass station. The evidence is that mostof the labourers in the harbour area live in Gintupitiya street, Koehchi-kade, Jampettah street (which runs past Green street), Kotahena, and theMutwal area. Possibly conditions have changed since Mr. Davidson’s1,previous experience. Conditions at the Cathedral Girls’ School were suchthat Mrs. Bakelman, a hefty but highly strung woman, who was workingfor the Whites, left the place in disgust about ten o’clock and reported toMrs. Chellappa, who was in charge of that area; she advised her not to getexcited and persuaded her to go back with a companion but the twodid not remain long.
In the Kotahena area there were polling stations at Lukmanjee Squareand at the Maternity Home in Prince of Wales avenue. Lukmanjee Squareis entered from Grandpass road through very big gates. The- road itselfis not very wide and has tram lines laid along it. Through the gatewayone goes down a wide passage, flanked on either side by tenements, andthen reaches open ground, part of which is enclosed with corrugated ironsheets. This enclosure was the polling station, the polling booths beinginside some buildings at the farther end. Just opposite the big gateswere the Red headquarters. Cars were permitted to come up to the biggates where the two constables were on duty. Voters would then passdown the wide passage where there were large numbers of persons with asingle constable to regulate them. On some surprise being expressedat this, Inspector Khan said there were two constables,—that there wereconstables at each entrance and exit; he said there were in all sixconstables round the enclosure, two others presumably being betweenthe entrance and the exist which were along another wide passagerunning at right angles to the first. Besides the usual Crime Policeinside the polling booth, Sub-Inspector Barnes with two constables keptorder within the enclosure and Inspector Khan spent the greater part of
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his time inside the enclosure. Khan began by saying “ S. I. Barnes wasall throughout with me; he was keeping himself within the enclosureOn surprise being expressed again at this he corrected himself and said—“ I was all over. I was walking up and down. S. I. Barnes kept himselfinside the enclosure. There were 14 men round the enclosure,—I amnot sure of the actual number.” (Mr. Baker’s orders in R 16 were thatthere should be an inspector or sub-inspector, three sergeants, andfourteen constables—with one bicycle orderly.)
Inspector Jonklaas of the Grandpass Police was away on sick leaveand Inspector Khan, who relieved him, was in general charge of that area.At Prince of Wales avenue, however, Inspector Schokman, who was seniorto Khan, was in charge, and Khan devoted nearly all^his time to LukmanjeeSquare. Having at his disposal seventeen men and posting two at the biggate and one on either side of the road to regulate the traffic, he hadthirteen men left; of these one was at the entrance to the polling boothand four at the entrances and exits of the polling station. ^With twoconstables inside the enclosure to assist Barnes, he had six men left, andof these one or two were along the passage from the gate to the enclosure,so that only four were left for disposal round the enclosure. He couldnot have had fourteen men. He corrected himself and said he must havehad nine men round the enclosure. That would be correct if he had onlyone man along the passage as he originally stated. He did not claimto have a clear recollection of what he had done or even of the number ofmen at his disposal. He said there was no noise except for the oneoccasion when there was a “ big noise ” created by a man whom he after-wards found to be “ one Senanayake ” and whom he had “ chased away ”.
There is abundant evidence that there was much noise. Mr. Evartssaid there was so much shouting that he could not distinguish exactlywhat was being said and consequently could not say whether the remarksalleged to have been made were made or not.
Mr. Davidson had had previous experience of this polling station andwent there at about noon. He left his office at 11.50 a.m., went all roundthe polling stations, and reached his bungalow at 1.20 p.m. He haddriven down the passage to the enclosure but had not stayed there long.
A European official would be easily singled out. Mr. Davidson’sattention had been drawn to the position of the Red headquarters and hethought it was most unfortunately situated, for it would permit of inter-ference with the voters. He said that when he went he did not noticeany obstruction of voters, heard no abuse nor insult nor intimidationnor any disparaging references to the Tamil community; everythingappeared to be perfectly all right and better than at previous elections.He had been led by the Police to expect a great deal of trouble and.disturbance. As his visit here was about midday, when there was a lullin the polling, his evidence must be read bearing that fact in mind. Evenso, he had to wait a minute or two before he could drive his car in. In,cross-examination he said he knew very little Sinhalese or Tamil and wasnot listening to what was being said, adding with an amused smile that hewas rather deaf. In answer to the question whether there really were nodisparaging remarks made he said—“ I cannot say anything. I can onlysay I did not hear that. ”
310DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
Mr. Baker said he had been to Lukmanjee Square three times, first about
a.m., then about 11 o’clock, and again about 3 p.m. He did not noticeanything objectionable. He was actually concerned to see that therewas no breach of the peace and said that words like “ para demala ”,
“ You must not vote for the para demala ”, and so. on would only comewithin the purview of the Police if there was a likelihood of a breach of thepeace, and that no instructions had been given to the Police to be on thelookout for cases of abuse and insult, &c. As long as there was no breachof the peace or of the law there was no need for Police interference.By breach, of the law he meant the commission of an offence definedin the Penal Code.
This area had been in charge of Mr. J. R. Jayewardene, Advocate andMunicipal Member for that ward, from which Mr. Razik had retired.Mr. Jayewardene falling ill, Mr. Dudley Senanayake, Advocate andMember of the State Council, took charge on polling day, but was un-acquainted with the neighbourhood. He reached the place about
o’clock, when there was a big crowd in respondent’s headquarters, onthe verandah and steps. “ The place was packed with people ”, he said,and most of the people in that house were in red shirts while others hadred caps on ; they kept on shouting and making abusive remarks when-ever a car bringing White voters came alone, and Mr. Senanayake thennoticed that voters were refusing to get down from the cars. There wasa crowd converging at the gate and down the square, with people oneither side up to the polling booth. He saw red-jacketed women at thebig gate who used to move about and get hold of-the White voters andcast remarks at thetn, remarks of such a nature as would frighten them.Sometimes they would get hold of the women carrying White cards andtake them along to the polling booth after giving them Red cards. Thesered-jacketed women were nearly all on the big side, he said ; he did notthink they were real voters because they remained on the spot. He hadreceived complaints of interference and had also made complaints toPolice officers but . each time the officer cleared the crowd at the gatethey would immediately come back. On one occasion, when he wasmoving about the passage between the gate and the polling station,
"a voter complained to him that he was being harassed and he went upto the gate to complain to the inspector and find out what the cause of itwas, when someone from the respondent’s office shouted at him—“ Senanayake hora ” (literally translated “ Senanayake is a rogue ”) :in Sinhalese the remark conveys more than its translation does. Hechallenged the man who made that remark to come out and there wassilence, but the moment his back was turned they jeered at him andhooted. He had seen Mr. Baker only once and had complained to himthat people at the Red office and others at the gate were harassing Whitevoters and by their behaviour driving them away ; Mr. Baker had thengone towards the gate saying he would do what he could. Mr. DudleySenanayake was there from 9 a.m. till 2 p.M.r when he was away aboutamhour at lunch, and again till 4 p.m., when he left for Prince of Walesavenue because the Police seemed unable to control the crowd and hefound himself helpless. Mr. Baker recalled the complaint made to him
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva. 31i
and thought it was about 11 a.m. but had made no note of it. Mr. Sena-nayake was not cross-examined about this incident.
Inspector Khan, called for the respondent, stated that he had spentthe greater part of his time “ by the enclosure ” (meaning within theenclosure) but there was no crowd at the main gate and he allowednobody to stand near the gate ; between 9 and 11.30 he would take 25or 30 men voters at a time inside the enclosure, line them up, and sendthem to the polling booth ; by 11.30 or 12 noon the rush was over;no complaint was made to him at any time, save when the petitionercame and told him about 1 p.m. that people were casting remarks at himbut could not point out anyone nor could he (Khan) find anybody makingoffensive remarks.
About 1.30 p.m. he was ordered by Mr. Baker to leave the place asthere was no work for him and things were quiet, and he was told to goto the Police station and inquire into any reports received there ; fromthere he went to Prince of Wales avenue about 2 p.m., stayed there till,3.10 p.m. and returned to Lukinanjee Square and remained inside theenclosure till 4 p.m., when he went back to Prince of Wales avenue andwas there till 5.30 p.m. He had seen people in the respondent’s officethroughout the day but had not seen a single man there in a red shirt !He added that there may have been Red Shirts inside the office but noton the verandah nor on Grandpass road nor near the gate nor anywhereelse. Inspector Khan had been stationed at Jaffna, from where he wassent to Mahara, and was then put in charge of the House of Detentionin Mutwal, adjoining which is the Home for Vagrants. He tried todissociate himself from the latter place, where a brother of Mr. Goone-sinha is a clerk and is known to Khan. His ignorance of Mr. Sena-nsyake’s identity may be pardoned. This is what he says regarding thatincident ; he did not know the person he “ chased away" but peopletold him he was “ one Senanayake ”,—that person was walking betweenthe enclosure and the gate “ making a big noise ”,—he could not rememberwhat the man was saying ; he asked him to go away because he waswalking up and down making remarks at some people ; this was beforeMr. Baker came. Mr. Senanayake, on being “ chased away,” had goneto the petitioner’s office. This was along the passage and had beenselected that morning because Mr. Davidson had upheld an objectionby Mr. Razik to a tent erected near the entrance to the enclosure.
Mr. Dharmasena, M.M.C., says he was in charge of respondent’sinterests at Lukmanjee square and was expected to see that their voterswent from their “ office ” to the polling booth. He was walking up anddown the passage from the gate to the enclosure. He says that between1 and 1.30 there was a voter with a White card near Mr, Senanayakegoing towards the polling booth ; then some people standing near theRed office shouted “ hora vote” (meaning bogus vote), whereupon theWhite voter ran away and Mr. Senanayake challenged the man to comeout but no one came out; then a man asked Mr. Senanayake why he,should challenge them and the two exchanged words and the crowd beganto jeer and hoot at Mr. Senanayake, whereupon Khan came on the sceneand the jeering stopped. He says he felt humiliated at the Inspector’s
312 DE KRETHER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
treatment of Mr. Senanayake. According to him this incident had takenplace on Grandpass road and Mr. Senanayake then meekly went up theroad, accompanied by him for a few feet; he was quite certainMr. Senanayake had not gone into the square. Mr. Dharmasena saysthat quite a long time before this trial began he had given all the detailsof the incident to Mr. Goonesinha, who naturally took a great part inworking up the case for the respondent. The evidence indicates he did.Not a question was put to Mr. Senanayake in cross-examination.
According to Dharmasena there was shouting and jeering and anexchange of words between Mr. Senanayake and another man but Khanhad heard no other noise than that made by Mr. Senanayake.
I have no hesitation in accepting the evidence of Mr. Senanayakeand holding that the White voters were seriously interfered with onpolling day.
I have indicated sufficiently my reasons for holding that the conditionsat this polling station too were bad. Prince of Wales avenue andLukmanjee square were the centres for 5,874 voters out of 29,900 oddon the register,—that is to say, about one-fifth of the electorate.
Before I pass to conditions before polling day, I should say that much,if not all, of the trouble would have been avoided if there had not existedcoloured cards indicating which side the voters were supporting. Theelectorate in Ceylon consisting largely, as it does, of ignorant and illiteratepersons who might be unable to distinguish between the respectiveballot boxes, separate colours are assigned to the rival candidates, whothen get cards printed, each in his own allotted colour, having thereon,the names of the voters with their numbers as appearing on the register.These cards are then distributed in the houses of the voters by the rival,candidates and as a result voters often have a number of cards at their,disposal. Intelligent and independent persons would not use them,perhaps ; cautious or timid persons like Jayaweera would carry bothcards in their pockets. It is claimed that the use of these cards savestime and trouble when the voters present themselves before the clerksof the Presiding Officer preparatory to entering the cubicles for voting.The practice seems to be that before they enter the polling station the:voters are taken to the respective headquarters of the candidates,ostensibly for the purpose of seeing that their names and numbers havebeen correctly entered. In this way each candidate is able to have afair idea of the support he is receiving. But the cards serve anotherpurpose, for those who desire to impersonate are furnished with an easymeans of knowing and bearing in mind the names of those whom theyare to impersonate, and especially during a busy time they might easilyobtain ballot papers from the Presiding Officer’s staff. In some cases im-personators were detected because they could not give the names correctly.
The polling agents of the respective candidates are required to preservesecrecy but are usually deeply interested in the results. It seems to methat the practice of using these cards is a gross violation of the secrecyof the ballot which the law provides for, and that ignorant voters, insteadof being protected, are led to disclosing their choice, not merely bycoming in the cars of the respective candidates but right up to the time
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when they are given their ballot papers. Many of the arrangementsmade appear to be for the protection of the Presiding Officer and his staffand for the assistance of the candidates and their agents rather than forguarding the interests of the voter, who is the chief factor at an election.In my opinion rules should be framed prohibiting the distribution ofcoloured cards and regulating entry to the polling station.If the
presiding staff must be assisted, then only cards of a neutral tint shouldbe allowed; and if candidates must have what they call “ offices ”, careshould be taken that these places are at a respectable distance from thepolling stations and that the voters are not compelled to go there anddisclose their choice. A space in front of the entrances should be keptclear of the public and voteTS should not be allowed to linger unnecessarilyabout the entrances. At most places the respective officers were too closeto each other and where the electorate was large the opposing groupsmight easily be led into becoming hostile camps.
Coming to the conditions before polling day, there is ample evidencethat the electorate was intimidated and the intimidation was so wide-spread as to have the appearance of being organized. Here again themore respectable persons were left alone and the more courageous werenot cowed by what they saw or heard. Pressed to give instances ofpersons who had not voted owing to intimidation, some of the earlierwitnesses for petitioner ventured to give some names. There was somesubstance in the contention that very few of those intimidated had beencalled, and the explanation put forward on behalf of the petitioner wasthat that type of person would fear even now to come into the open.
A witness who gave evidence for the petitioner at an early stage of theproceedings, one Arunasalam, was pilloried in a paper called “ The People”,also conducted by Mr. Goonesinha. The very next day an explanationwas published that the offending remarks had found their way into printin spite of the editor having scored them out. The matter was broughtto my notice but I thought it sufficient at that stage to do more thanwarn the respondent that such conduct tended to lend support to thecontention that intimidation of various sorts was a weapon which hisparty had freely used and that I would accept the explanation, unsatis-factory though it was, in the hope that there would be no repetition ofsuch comments.
Respondent did call a few of those named to say that they had votedbut this only threw into greater prominence the evidence given for thepetitioner. They were mostly retired old gentlemen who obviouslydid not appreciate the position in which they found themselves.Witnesses for the petitioner had mentioned the Emmanuels among thosewho had not voted. Respondent called one Mr. Emmanuel, a retiredGovernment servant who lived in a nook away from the main roads,who stated that he and his wife had driven down in the evening in theirown car to the Cathedral Girls’ School where they had recorded theirvotes. Mr. Emmanuel admitted there were other Emmanuels in theKotahena area.
Then a Mr. Gonsal was called, who had voted in the evening at St.Benedict’s College. He professed to know very little about his wife andother inmates of the house but stated that some ladies did call to see
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his wife on the morning of polling day. It is hardly likely they wouldhave gone there only that day without previously canvassing these votes.Mr. Beling, of Hill street, rather baffled Counsel. Properly understood hisevidence was not adverse to petitioner.
Respondent opened his case by calling Mr. Goonewardene, a retiredsurveyor of the Municipality, to contradict the evidence given byMr. Proctor Corea as to the conditions in his neighbourhood and toexplain why he had not voted. This witness stated that although heand his wife and children had voted previously he had taken no interestin this election as he was unwell during the whole of April with boilson his legs which prevented him from wearing his clothes and going out.He denied that Proctor Corea had spoken to him either before the electionor after and said that the Proctor had spoken to him only on October 23and asked him why he and his children had not voted; that is to say,that Proctor Corea had been spoken to only just before he (Mr. Corea)gave evidence in Court, and it was suggested that he had done this inorder to provide himself with some excuse for giving false evidence.
I prefer to accept the evidence of Mr. Corea. Goonewardene had noteven seen the Police patrols or the Police officers on that road althoughhis house adjoins the street and he was constantly on the verandah. Heregarded election time as being abnormal. He, seemed to have a greatgrievance against Mr. Corea because he had failed to be elected to someoffice in a society connected with the church. He believed that in thoseelections there should be no canvassing at all and thought Mr. Coreahad influenced those elections. They were held in June this year, afterthe by-election now in question. He said he would have voted had hebeen well, thus contradicting his earlier statement that he regardedelections as a nuisance. He admitted that as late as Easter Sundayhe had been attending service twice a day and was surprised to learnthat Easter Day was April 13.
I need not discuss the evidence as to general intimidation in detail.It will be sufficient to set out chronologically some of the incidents whichoccurred prior to the election
Some statistics with respect to previous elections were furnished byrespondent and certain percentages worked out from which I was askedto infer that no appreciable number of voters had kept away from thepolls. I cannot accept this argument. It is impossible to assess thevalue of the figures without being in possession of all the facts relevantto each election. In 1931, 43,961 voters were on the register; in 1936,32,718; and at this by-election 29,984. There is no evidence as to whythe electorate diminished. Petitioner’s supporters were said to be verylargely persons permanently resident in the area. Was it the labouringclasses who had moved or was it the reverse?
Mr. Davidson had found the biggest rush in Grandpass at midday.That was not the state of things on this occasion. Was it due to a changeof habits or had the population shifted?
In 1931, 20,220 had polled ; in 1932, 21,097 ; in 1936, 19,931 ; and atthis election 16,526. Notwithstanding the reduction of the numberon the register, the number of those- actually polling had remained fairlyconstant from 1931 'to 1936, and on each occasion the petitioner or his
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DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
wife had been elected, that alone indicating that the number polling forthem must have been ten thousand or more. On this occasion thepetitioner obtained 6,734 votes. The number of votes he failed to obtainis roughly the same as the difference between the number who polled in1936 and the number that polled at this election in 1941. It would beunsafe to argue that these 3,000 voters had been kept away by reason ofintimidation for that would be assuming that his voting strength hadnot altered since 1936. The number on the register had fallen roughlyby 3,000. It would be unsafe to deduce that these were the 3,000 whosevotes the petitioner had failed to get. There is no evidence that thepetitioner had lost popularity; he is still the Municipal member for thearea or part of it and has been Mayor twice since 1936. At his interviewwith the Police on April 7, long before the election, he had stated thatsince 1936 rowdyism had increased considerably in the electorate. Thereare so many things to be considered before any deduction 1 can be madefrom these figures that I can attach no importance to them.
Regarding the Law, Article 74 (a) sufficiently explains itself. Counselfor respondent referred me to the Thombury Case' in support of hiscontention that intimidation at one or two stations was not sufficient.The decision in that case must be confined to the facts of thatparticular case. In that very case Mr. Justice Field remarked—“ Mr. Charles has compared this case with the facts in the Durham.Case, which is not a safe mode of arguing, because the facts differso much in different cases, and so much depends upon the view ofthe people who are called to give evidence ”. Later he observed—“Itseems to me lhat the question which I have to decide is whether all theelectors of the other divisions of the constituency are to be disfranchisedfor what was done in the three divisions, and a fresh election held withall its turmoil and excitement. That will have to be done if I am satisfiedthat there has not been that free exercise of the franchise which everybodyis entitled to have, and that the absence of that has been caused byintimidation and riot ”. There was evidence in that case that out of 23polling districts only three were affected by what was described as “verydisgraceful outrages ” perpetrated on polling day. Out of 11,333 voterson the register, 9,529 had gone to the polls; in the three districts inquestion the number was only 789 and of these all but 87 voted.
In the Drogheda Case' it was urged that the onus was on thepetitioner to show that the _ undue influence led to the majorityobtained by the respondent because it. was impossible for respondentto prove the negation of this. Mr. Justice Keogh commented on this asfollows:—“I must say at once that the argument put forward by therespondent is one from which I wholly and entirely dissent. It is sub-versive, in my mind, of the whole principle of freedom of election. It issaid by the Counsel for the respondents that freedom of election is securedprovided the majority are shown to have had the power of recordingtheir votes. I deny that altogether. This was not solely a contestbetween the respondent and the petitioner. There is another andgreater interest than belongs to either of them; thereis the publicinterest. The humblest individual in the whole of the constituency1 O'M- <(■ k r. v* o'M. <s> h. i zsj.
316 DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
has as good a right .without fear or intimidation to come into the Court-house upon the day of election as the richest man upon the register,and as good a right as the great majority of the constituency. Take itthat a candidate has by the most legitimate means obtained the votes ofnine-tenths of the constituency in his favour, yet it is of vital importanceto the public weal that the remaining tenth should be able to recordtheir votes and to express their opinions. If the majority are not onlyto send their own representative to Parliament, as of course the majoritymust do, but if they are to drive by terror and with ignominy and withscorn and with denunciation the minority from the poll, what becomesof freedom to this country ? ”(p. 225).
Later he remarked (256)—“ But when you come to the case of intimida-tion, who is there would venture to gauge its influence? Who can tellwhat is its effect upon the human mind? It is true that you may provethat a man has been told, standing outside the Court-house, ‘ If you goin and vote for Sir Leopold M’clintock, your brains will be dashed out ’.That will show that that man has been intimidated, but will any mansay that if there were half a dozen voters standing by whilst that sameobservation is made, the influence of that threat directed speciallyagainst him will not operate upon them? How is the limit to be fixed?How is the influence of intimidation to be traced? ….”“ It is
not possible to give evidence in a Court of justice which would carry outthe proposition which has been laid down by the Counsel for the respond-ent here, and. if at all it is to be made a matter of evidence, the onus ofproof should be thrown upon them to show that when the law has beenviolated, when gross outrage and intimidation has been organized, thatintimidation and ..that violence have not produced their naturalconsequences, namely, terrifying the people from the exercise of theirlegitimate franchise.” (p. 257).
As to freedom of voting he said: —
“ One of the best establishment rules of freedom of election is that theelectors shall come to the poll perfectly free as they are registered,that they shall not themselves accept bribes, that they shall not becoerced, and that they shall not be intimidated ; and if, as regards anysingle vote it is proved to the satisfaction of the Court that any such voterhas been so acted upon it is the imperative duty of the Court to resolvethat that is not a good vote.” (p. 257).
He quoted with approval the Dungarvan Case in which it was laid downthat “ Two great principles were always sought to be maintained; firstthat the election should be free, and second, that the character of thecandidate should be pure in regard to the election.” (p. 258).
In the North Durham Case1 Mr. Baron Bramwell dealt with someinteresting points regarding the reception of evidence and distinguishedbetween Intimidation within the statute (which must be intimidationpractised upon the individual) and General Intimidation. In the courseof his judgment, he said—
“ But where it is of such a general character that the result mayhave been affected, in my judgment it is no part of the duty of a Judge
I O'M. de ll 157.
DE KRETSER J.—Dr. k. Saravanamuttu v. M. Joseph de Silva. 317
to enter into a kind of scrutiny to see whether possibly, or probablyeven, or as a matter of conclusion upon the evidence, if that intimida-tion had not existed, the result would have been different. What theJudge has to do in that case is to say that the burden of proof is castupon the constituency whose conduct is incriminated, and unless itcan be shown that the gross amount of intimidation could not possiblyhave affected the result of the election it ought to be declared void."…“ Now- in questions of this sort one must look not only
to the amount of the intimidation but to the absolute majority whichhas been obtained. … Now, I think if it were otherwise, and
if one were told that partial intimidation would avoid an election,,although it were certain that it had not affected the result of theelection, the consequence would be that a few mischievous personsmight upset every election. On the other hand, if one were inclinedto go into a kind of scrutiny the consequence would be that one mightmake a very great many mistakes; besides, I am of opinion thatwhere there has been so large an amount, of intimidation that it isuncertain whether the result would have been the same without it,it cannot be said that the election was free, or that it represented thereal opinion- of the constituency,, but that it must be held void onaccount of that uncertainty.” (p. 158).
The South Meath Case1 dealt with the abuse of spiritual influenceat an election. Counsel sought to extend the principle to the useof a racial cry on the present occasion, for the evidence is thatthe Sinhalese were not merely invited to vote for the Sinhalese candidate- but were branded with bastardy and disgrace if they voted for thepetitioner, the Tamil candidate. There is much force in the contention.In the course of his judgment, Mr. Justice Andrews again emphasized thatfreedom of election was absolutely essential to the validity of an electionand expressed the opinion that it did not matter by what means, thatfreedom of election may have been destroyed. He said—“ It would beabsurd and unnatural to contend that there could be a valid electionwhich was not a free election” (p. 139). … “ It is a mistake to
suppose that where general undue influence exists it must be furthershown that the result of the election was, in fact, affected thereby.It is enough to show such general undue influence as may be reasonablybelieved to have affected the result.” (p. 142).
In Ceylon we have only/ two case's on this pqint, perhaps becauseprevious elections were not challenged on this ground. In the MunicipalElections held last year Mr. Goonesinha was returned for ColomboSouth. A writ of quo warranto was applied for and the question havingarisen, whether this court had the power to allow such a writ with respectto municipal elections, Soertsz J. held that the remedy lay. He remarked(42 N. L. R. 339) “ It is also true that the English common law and ourcommon law are two different things, but it is a law common to allcivilized societies that elections of this kind should be pure and of freechoice, that it should be a reality and not a sham.” He quoted thelanguage of Mr. Justice Andrews in the South Meath Case. The resulting,inquiry was held by Hearne J., who set aside the election, remarking
318 DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
( 43 N.L.R. 36) ; “ The right of a voter to go to the poll without molestationor fear of molestation was violated in a most determined and unscrupulousway. I am satisfied that there was no real electing by the constituencyat all in the sense that it had not a free and fair opportunity of electingthe candidate which the majority might have preferred.”
I declared the respondent’s election in this case void on the ground ofGeneral Intimidation within the meaning of Article 74 (a).
I have not yet touched on the question of General Impersonation.The evidence under this head is scanty and does not go beyond raisinga strong suspicion. There is the evidence of a ferryman that a largenumber of people were crossing over into the Grandpass area on thenight before the election. There is evidence that buses, the use of whichhad been prohibited, had brought people into the Prince of Walesavenue area,—that, people like Pavistina were found in the St. John’sSchool area,—that there were stationary crowds at polling stations;but it may be that these persons were not there for the purpose ofimpersonating voters but for other purposes.
Mr. N. S. Perera, a prominent worker for the petitioner in the Kotahenaarea, when he went to vote at the Cathedral Girls’ School about 10 a.m.,found that he had been impersonated. Even the polling agent hadfailed to detect the impersonation, probably because there were so manyPereras on the list and he was not acquainted with N. S. Perera’s fullname. So daring an impersonation lends colour to the suggestion ofmany more such cases having occurred than were actually detected.
I do not think the presiding offier’s clerk acted properly When he toldMr. Perera that he could have a green ballot paper but that his votewor^d not be counted.
I now pass to the specific charges.' In my opinion specific chargesmust be established beyond reasonable doubt by evidence which is clearand reliable.
Six' charges of treating were made, and of these only one, in myopinion, has been clearly established. Let me first deal with the caseswhich have been cited.
The Carrichjergus Case' dealt with the word “ corruptly ” and BaronDowse said that he knew of no better definition of the word than thatgiven to it, in the Launceston Case, namely, “ with the intention ofproducing an effect upon the election. ” “ Corrupt treating ”, he added,:*must then mean with the object and intention of influencing the vote.”In the Hexham Case' Mr. Justice Cave said : —
“ With reference to treating it is otherwise, a very small amountis sufficient to procure a great deal of popularity, because, lookingat the very wide extension of the franchise, there are in every consti-tuency a considerable number of men who do not take politicsseriously at all, or attach much importance to one side or the other.They are perfectly ready to vote for the man who is popular, and ifby reason of treats and picnics you can produce a general feeling thatthe candidate is a good fellow, and that he is willing to give a poor mana supper or treat or entertainment of this kind, and if that idea gets
1 O’M. <L- H. Ill 90
* O'M. cfc H. IV Its
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva. 319
generally spread over the division an enormous amount of popularityis produced by it as against another association which does not resortto that sort of thing.” (p. 147).
In the Bodming Division Case ’ Mr. Justice Grantham said : —
" It is necessary when dealing with charges of treating to considercarefully the motive of the person charged, and to determine whetherhe was really committing a criminal act with a criminal intent. Oneelement I always take into my consideration on such occasions, andthat is the character and antecedents of the person against whomthe charge is brought.”
Mr. Justice Lawrance said : —
“ There is a clear distinction between bribery and treating. Incases of bribery there is always something in the nature of a contract.
* If you give me a sovereign I .,will give you a vote ’, or some suchunderstanding, but treating is an entirely different matter. In. treat-ing it is not necessary that the person treated should belong to theopposite party, whereas it is of no use to give money to a man who isgoing to vote for you already, the money must be given to the otherside in order to draw another vote. But if you give drink to a manwith the intention of confirming his vote and of keeping up the partyzeal of those believed to be already supporting your candidate, thenthat is corrupt treating.”
In that case an experienced election agent had arranged for a gardenparty to be given by the parents of the candidate. Mr. JusticeGrantham said: —
“No one who has heard the history of the garden party can doubtfor a mbraeht that it was corrupt treating. It was held for the purposeof affecting the election and as a means of gaining popularity for thecandidate. ”
Two of the charges affect Mr. Goonesinha. The one placed atGintupitiya has not been sufficiently proved. The other is alleged to havetaken place at the house of Ferdinandus in the afternoon of April 25.He lives at Church street in Mattacooly, opposite the house of Mr. ProctorGomes, petitioner’s polling agent, who had. been away on a holidayuntil that day. Mr. Gomes’ evidence impressed me as being reliable.He was not cross-examined as to credit and even respondent’s Counsel ,relied on his evidence with respect to the treating and could only suggestthat he had made a mistake with regard to the presence of Mr. Goone-sinha. I cannot accept that suggestion.
Mr. Goonesinha, Mrs. Jayewardene, and Lawrence gave evidenceto the effect that, after a tour of the election centres in the morning andwork in the Labour office, Mr. Goonesinha had lunch and then restedat his bungalow so that neither he nor Mrs. Jayewardene could have beenpresent in Church street as alleged. The evidence is that there wasmuch activity in Goortesinha’s,, bungalow that day, rosettes and posters.&c., being got ready for distribution. Lawrence, who had been out
1 O’M. 0fc H. V. 225.
320 DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
all the morning, assisted in these preparations and himself went outdistributing them along with another. When he left the bungalow at4 p.m., Gocnesinha was still there, he says ; I cannot believe that aperson of Goonesinha’s dynamic energy would spend a couple of hoursin a siesta on such an important day.
On the other hand I find it hard to believe that Mrs. Jayewardeneemptied small coins into his cupped hands after his car had halted on thepublid road opposite Ferdinandus’ house while witnesses in Gomes’sgarden and at the gate were looking on and that Mr. Goonesinha openlycarried this money into Ferdinandus’ house. No charge of bribery hadbeen made, and the petitioner’s Counsel was not responsible for elicitingthis evidence. But the fact that it came out in cross-examination doesnot make it any better. In my opinion there is a grain of truth in what the. witnesses, say. It may be that Mrs. Jayewardene did empty somethingfrom a capacious bag into. Goonesinha’s hands and that in doing so- some coins fell on the road and were picked up by street urchins, therebyleading the witnesses to draw incorrect inferences. Possibly what wasemptied were some rosettes for a dozen workers in that neighbourhood.
It is alleged that after Goonesinha and his party had left,;/£ manwent out of the house and was seen returning later with a rickshawwhich had its apron up on a bright sunny afternoon; that the rickshawwas taken to the back of the house and some pots and bottles, presumablycontaining toddy, were taken out of it into the house, that later peoplebegan coming in and there was much merriment and eating and drinkinggoing on.
Mr. Gomes had by then been called away owing to the illness of arelative of his and did not return till about 9 p.m., when he 'was toldby the witness Benedict Fernando that treating was going on there,Fernando hinting broadly that there should be a similar distributionof money and . similar treating on their side. Gomes refused to believeFernando when he described what the people had been eating. Hebelieved that Fernando had been told what he pretended he saw of elsehad drawn on his imaginations It may be that Gomes was concernedwith repelling Fernando’s suggestion, but this explanation was notput to Gomes and I must take his evidence as it stands. He said thatFerdinandus’s house was very poorly lighted by an oil lamp in theverandah, that before he left he had seen a crowd swarming in like bees,and that when he returned the place was still fuli of people and there wasshouting and cheering going on. One very strongly • suspects thattreating was going on there but suspicion is not enough.
Another charge of treating is placed at Prince of Wales avenue, onApril 24, two days before the election, when the respondent and abouttwenty persons, it is alleged, went into a tea boutique, of which thewitness Soysa was in charge, while Goonesinha remained on the pave-ment; that one of them produced a parcel containing two bottles, thecontents of which diluted with water they all drank, except the re-spondent, who merely poured out the first drink; that one of the companysaid “ Everyone ol you must give your vote to our poor gentleman, ”referring to the respondent, who had been commended to the electorateon the ground, that he was a poor man. This incident is alleged to have
DE KRETSER J.—Dr. R. Saravanamvttu v. M. Joseph de Silva. 321
occurred about 2.30 p.m. Soysa himself was not a voter but there wasa voter working in that boutique. The party had not inquired forvoters nor was the liquor offered to anyone else in the boutique, whichadjoined petitioner’s “office”. Soysa left the locality in September,and went to Kalutara. He impressed me favourably but Mahawelawho was called to support him did not. I think the incident is probablytrue, but the party that went in seems to have consisted of canvasserswho had teen going about on a hot afternoon; respondent was suddenlyconfronted with two bottles of liquor and asked to do the honours of theoccasion, and I do not think he realized he was doing anything improperor had any intention of influencing any voter there. It must beremembered that he is an ill-educated man. In the circumstances I amnot prepared to convict him of the charge.
The next charge affects Mr. Razik and is said to have taken placeat the respondent’s “ office ” at 241, Grandpass road. Razik statedthat he was in charge .of that area, of which he had been at one time theMunicipal member, and that he was respondent’s polling agent in Lukman-jee square. He had arranged for the “ office ” and only the verandahhad been allotted to him, the agent of the landlord taking him roundand convincing him that the rest of the building was full of copra. Theverandah was quite sufficient for their purpose, said Mr. Razik. Neitherthe landlord nor his agent was called, and if Razik had not wanted morespace it is difficult to see why he was taken round the place. It is alsohard to believe that copra would be stored such a length of time as tofill a capacious building, not merely the rooms being full but the hall alsobeing filled with copra, thus impeding the removal of copra from therooms, presumably the older stock. Petitioner’s witnesses had deposedto treating inside the house and no suggestion was then made that onlythe verandah had been .available. Besides, there is the evidence ofInspector Khan, who had relieved Inspector Jonklaas on the 24th andacted for him till April 30. Khan was not questioned with regard to thisbuilding by the respondent who called him, but in cross-examinationhe said that he had seen no persons in red on the verandah of this “ office ”but’possibly they were inside the house. There is also the evidence ofthe ferryman who says that a number of people crossed over that nighton their way to this office. The gathering of voters into one place, if notthe treating of them, appears to have been commonly practised byrespondent’s agents. Mr. Razik states that he visited this office on theevening of the 25th in order to see that arrangements were satisfactoryand then went about 7.30 p.m. to a house close by to attended a functionthere, having sent his car ahead. Taking such interest as he did, it ishard to believe that he did not come back to see how things were goingon in the office. The charge, however, must be established not bydefects in the defence but by positive evidence called by the petitioner.
I do not trust the evidence of Stephen and Vincent Perera. Razikgave me the impression of being malicious when he described the witness' Devaraj Das as a mendicant, denied he was a Brahmin, and was evencertain he was not a voter and had not voted. When Das was beingexamined there was some difficulty in tracing his name in the list of-voters at the moment the question was raised, but Razik stated positively
322 DE KRETSEK J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
that he had had the list with him, had scrutinized it, and that the nameof Das was not there. He was confronted with the list and shown thatDas’s name did appear there. As polling agent for respondent, Razikcould hardly have failed to notice the name of Devaraj Das, a man whomhe had known before, nor have failed to notice such a conspicuous figuregive his vote. Das is an ex-soldier, who had served in the last war in aBrahmin unit. On being disbanded he had earned ,an honourable livingas a travelling photographer and later became a priest, succeeding hisfather. I am not prepared, however, to act on the evidence of Dasfor he exhibited very strong partisanship. I hold this charge to be notproved.
There remain the two charges which affect A. J. S. Perera. He isalleged to have treated a number of persons in the vicinity of respondent'sheadquarters in Prince of Wales avenue on the night preceding pollingday. The evidence is neither satisfactory nor sufficient to bring homeconviction on this charge.
He is also alleged to have treated voters at his residence, No. 71, Staceroad, Grandpass, on the night preceding the election, and on this chargeI hold that the evidence is both sufficient and reliable. I would particularlyemphasize the evidence of the witness Wanaguru. He is an Ayurvedicphysician practising in that locality and is also a lecturer at the AyurvedicCollege of Medicine, on the Board of Management on which Mr. Razikserves. Wanaguru supported the petitioner’s candidature but did nottake an active part.
Shortly after the election he met Proctor Saravanamuttu and in the^course of conversation said that it was not surprising the petitionerdid not succeed since he had not treated voters as the other side had done.He had no suspicion at the time of the value of his observation and seemedembarrassed at being called as a witness. He was reluctant to do morethan give a minimum of evidence and was not cross-examined. Headmitted the conversation with the Proctor.
It was suggested for the respondent that in a weak moment he hadagreed to give false evidence and later regretted his decision. I do notthink that is the explanation of his attitude. He stated that he knewthat A, J. S. Perera’s house was the headquarters for the respondentin that road, he had seen decoration and red flags in front of the house. and people going in and out the evening before the election. Havinghad occasion to pass the house between 4.30 and 5 p.m. he had seenpeople on the premises and others moving about in the verandah. Hesaid he had seen a senega (crowd) in the premises and immediatelycorrected himself and said he had seen 7 or 8 persons, trying to make outthat the word senega was appropriate to such a small collection of persons.This is not true. The word senega means -a crowd, a large number ofpersons and, if it did not, there was no reason for the witness to correcthimself. Coming back about 6 p.m. he says he saw on the road by the• house three or four cars halted; there were then some 12 or 15 personsin the garden besides those in the verandah; one or two persons weregoing in and coming out and the people seated were laughing and talking,, having glasses in their hands. He inferred the people were being treatedthere.
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva. 323
The witness Arunasalam lived opposite A. J. S. Perera’s house and wasactively canvassing for petitioner ; he was on friendly terms with hisneighbour, who had once even lent his mother a car for a wedding.Arunasalam spoke of a luncheon party on the Sunday, i.e., April 20,at which Mr. Goonesinha, the respondent, Dharmasena, Jayasinghe(the Secretary of the Labour Union), with Mrs. Goonesinha and Mrs. Jaye-wardene, had been present and remained for about two hours. OnMr. Goonesinha’s arrival he attracted a crowd, as usual, and addressedthe gathering of nearly two or three hundred people.
The luncheon party itself was an innocent affair and I see no reasonwhy this witness should have invented it. Goonesinha, Razik, Reyal,Dharmasena. all pretend to have given A. J. S. Perera’s house a wideberth although, its the evidence shows, he was an enthusiastic workerfor respondent and clearly his'agent for Stace road, and Goonesinhaand others of the luncheon party were taking a particular interest in thatarea. Perera attempted to make out that he had taken very^ittleinterest in respondent’s cause, that having been invited to support 'hiscandidature only about April 17 he did nothing more than attend ameeting (at which he was surprised to find himself put down to speak)and ask his clerk and father-in-law to canvass the voters along Stace road,while he himself spoke to a few of his neighbours at the meeting. Hesaid he had never spoken to the respondent at any time. He deniedhaving spoken to Arunasalam but admitted having lent his mothera car to carry a bride to a wedding. He was never in the habit of keepingliquor in his house, and nobody came to his house the evening beforepolling day. Though a person who did not take any liquor even whenhe was ill and had not an ounce of liquor in his house, he was neverthelessthe renter of the toddy tavern at Kandana and was tapping about 900coconut trees icr toddy. He admitted that the number of trees so tappedhad gradually decreased but denied that the number had been reduced byorder of the Excise Department or that the reason for this was that , hehad been supplying toddy illicitly to one Paulis Perera, who fan theKochchikadde tavern in the electoral area. He disp1 aved a markedreluctance to admit that he knew anybody of the name of Paulis Perera.The documentary evidence proves that he was required to reduce thenumber of trees tapped for toddy.
Arunasalam and other witnesses deposed to their having seen barrelsof toddy brought into Perera’s premises in a green motor van, which heowned. To meet this evidence Perera gave a history of his motor carsand vans. He had owned a Baby Austin car, which he had sold 8 yearsago, he said, but he had to admit he had converted the car into a vanand later sold it in September, 1939, bought it back the following monthand sold it again in February, 1940. He denied that he had transferredit to Paulis Perera, just as he had denied earlier that he owned an Austinvan, but it was to one Paulis Perera he had sold the van in February.He owned another van, also painted green, which he sold on December 5,1940, to one Srinivasa Rao, who did business in grain at the Old Town HallMarket in the Pettah; he had then bought a lorry on September 16, 1941.
A J. S. Perera is a contractor supplying provisions to many insti-tutions, chiefly hospitals. He had in his house a refrigerating room.
324 DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
He also had a place of business at the Old Town Hall Market. Heexplains the sale «f the van in December, 1940, by saying that at thattime he had lost the contract for supplying provisions to the HendalaLeper Asylum, but he had other contracts at the time, one of them tosupply a hospital near Gampaha, about 18 miles from Colombo. He saidhe had transferred the refrigerating room.
Srinivasa Rao was declared insolvent in April, 1941, and the van wasseized on the 17th when- it was lying opposite the Old Town Hall Market.The seizure report indicates that the goods seized elsewhere had beendelivered to Rao himself but that guards had been placed over the van.The seizure was terminated in May and Rao appears to have sold the vanin July. One needs to know a great deal more before one can be certainthat this van was not available a day or two after the seizure : forexample, security may have been given for its safe custody. Rao dealtin grain, which Perera would need for his contracts. Rao went insolventshortly after his alleged purchase, and when he bought the van hadstated that it would be kept at 71, Stace road. It has been explainedthat this was due to a mistake, A. J. S. Perera’s name having first beenentered on the form and his address given, and when a correction wasmade the name only was altered and not the address. The explanationmay be correct but there was no explanation as to where Rao would keephis van ; quite clearly not at the Old Town Hall Market. Perera saidhe did not know where Rao lived and there is no evidence by Raohimself. Even if the sale had been a genuine one there was nothingto prevent Perera from obtaining the use of a van.
A. J. S. Perera created a very bad impression on my mind and I do nottrust him on any matter of importance. I hold the charge against himhas been made out and cannot say that the treating was done withoutthe sanction or connivance of the respondent and his prominent supporters.I have made every possible allowance in their favour with respect to otherplaces, where at any rate there were large gatherings of people andconsiderable merrymaking on the night preceding the election, but in thisinstance conviction is irresistible.
Coming to the charges of Undue Influence, I propose to confine myattention to only three of the eight charges pressed because the evidenceregarding the others is either inconclusive or insufficient.
On April 19, there was a meeting in support of the respondent at a placecalled Ingurukadde Junction. Mr. Goonesinha, who says he came backto Colombo on the 19th, presided and spoke at this meeting. Accordingto him and some other witnesses for respondent, he got into his canimmediately after the meeting and went home; but according to theevidence for the petitioner, soon after the meeting Goonesinha, with therespondent and others, followed by a large crowd, went along Nagalagamstreet. The gathering was described as a procession. It was contendedthat processions could not be held without a Police permit. This,however, was not an organized procession but just a spontaneous gather-ing of-people such as Mr. Baker saw at Prince of Wales avenue on electionday; that gathering certainly had no permit.
The 19th was just one week before election day and that week wouldnaturally be one of great activity. It was on the 20th that the luncheon
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva. 325party took place and many of the charges of intimidation are placedwithin this week. It is alleged that when going down Nagalagam streetMr. Goonesinha intimidated a man called Hettiarachchfge John Singho,who described himself as proprietor of an eating-house called the TissagiriHotel. Goonesinha had in 1939 initiated a movement in the nature of aboycott of Indians, who he felt were depriving the people of this countryof their means of livelihood, and therefore he encouraged the openingby Sinhalese of places of business. John Singho says the movementhad strong support in Nagalagam street and he opened his hotel there,Mr. Goonesinha performing the opening ceremony as he had done in thecase of many others. In this by-election John Singho supported thepetitioner as he had previously supported Mrs. Saravanamuttu. Hesays that, on April 14, one Sonny Peris told him that Mr. Goonesinhawanted to see him at the Labour Office. Goonesinha was in Colombothat day. John Singho did not go, nor did he attend the meeting at thejunction. But after the meeting the procession halted in front of hishotel and Mr. Goonesinha called him up and asked him if it was notwrong to work for the Tamil man; pointing to respondent he asked himto work for him. John Singho then said he had already promised hissupport to the petitioner, and when Mr. Goonesinha pressed him hereplied that he was not a man of two words. Mr. Goonesinha then gotvery angry and threatened him, saying he would not allow him to runthat hotel much longer. Thereupon the crowd jeered and laughedand hooted at him, says John Singho, and on the succeeding days peoplewould gather in front of his hotel and warn customers not to go therebecause the place was being run by Tamils. He says they used abusivelanguage and threats of violence, so much so that neither he nor his wifethereafter made any effort to support the. petitioner's candidature nordid they even venture out on polling day. On being reproached bypetitioner seme time later he told him the whole story. John Singho’shotel lost custom for a time but he says that he thought it best not tocomplain to the Police as he hoped the trouble would die out, as in factit did. He denied having gone to Mr. Goonesinha about five monthsafter the opening of his hotel and asked him for help, which was refused;he said he had never spoken to Mr. Goonesinha since that day when heopened his hotel, which had done well from the very start.
John Singho was supported by his nephew and I accept their evidence.
I do not believe the explanation offered that the man was offendedbecause Mr. Goonesinha had refused to give him a loan.
On the same day, April 19, .the same procession passed the house ofthe witness Gabriel Perera, to whom I have already alluded. Theyhalted near his house and indulged in abuse.
The next charge relates to polling day. Gabriel Perera and his wifewere held up at Ingurukadde Junction by a threatening crowd and werecompelled to turn back. In that crowd they recognized one JulianFernando. Julian Fernando is a stalwart man whom Gabriel’s wifedescribed as the local giant. He is a contractor living in Nagalagamstreet, who states that though he voted he did not put in any work for therespondent as he was a diabetic subject, suffering from eruptions on hislegs. He had therefore asked his son, a youth of 18, and his workmen
326DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
to canvass votes for respondent; he employed about 20 men. JulianFernando admitted, however, that he was able to move about a littleand that on polling day he had not only voted but remained there forhalf an hour after voting; he was carrying on his business as usual,had gone about in May seeking relief for flood victims and he had been to seethe Mayor who ordered him out—but not for becoming abusive. He hadwritten to the “Vivaya” about the incident (P 39). Julian maintainedthat the statements in the paper produced (P 39) were correct up to apoint. He said that in former years Goonesinha had entrusted himwith the relief work, allowing him to decide to whom relief should begiven. ' He had expected the same treatment in 1941 but the CharityCommissioner had not done his duty and issued only 18 relief cards aftergoing round.
Julian Fernando had been charged once with abuse but was discarged ;v.-ith obstructing the Vidane Arackchi of Kotahena but the case wassettled; with aiding and abetting forgery and he had pleaded guiltybefore the Supreme Court but. that happened 25 years ago; fairly recentlyhe was charged with assaulting Inspector Rutland1 and although he haddone nothing he accepted the Magistrate’s advice and pleaded guiltyas the case had been going on so long; he had not then locked up theinspector, said he. but that was done by one Peris.
I accept the evidence of Gabriel Perera and his wife and hold that. Julian Fernando was an agent for the respondent and was guilty of usingundue influence towards Gabriel Perera.
The third charge relates to Simon Rodrigo, the ferryman who plied aboat between Maligavvatta and Chapel place. The evidence shows thatone Simon Perera once plied a boat at the same place for a Muslim,that another Muslim had started a rival service and Sitnon Perera andhis patron had to give way in 1925 or 1926, after carrying on the servicefor 9 or 10 years. The business of the successful Muslim then passed toSimon Rodrigo, who has carried on the ferry service for the last 12 yearswithout a rival and has acquired some influence in the neighbourhood.
Simon Perera became an Oxygen-welder and had lived for the past 5years in Pelivacoda. working for the last 15 or 16 years under a Chetty.Simon Rodrigo lived in School Garden where there were about 200 voters,mostly Tamils and a few Malayalees ; he canvassed for the petitioner,having many opportunities for meeting voters who used his boat. Hewas on fairly firm ground since he had a permit from the Governmentto use the landing-place at one end and had an arrangement with thelessee of the premises belonging to the church, which was the landing-place at the other end..
Simon Rodrigo stated that about four days before polling day, about6.30 p.m., he saw Mr. Goonesinha and a large crowd in School Garden.Another witness. William Sinno, says that hearing that Mr. Goonesinhahad come there he followed him and saw him climb on- a chair and makea speech; that thereafter Mr. Goonesinha went lower down the gardenand made another speech and it was then that Simon Rodrigo turned up.Goonesinha denies that he made any speech in any garden or in thisplace at all, or that he knew either Simon Rodrigo or William Sinno,about whom he made no inquiries since he was convinced that their
DE KRETSEK J.—Dr. R. Saravanamunu v. M. Joseph Je Silva. 327evidence was false. Goonesinha, however, says he sent for SimonPerera, a native of Maligawatta, within the area which Mr. Goonesinhaserves as a member of ihe Municipality, and Simon Perera was calledas a witness.
Goonesinha admitted that in 1936 he had had a loud-speaker attachedto his car for electioneering purposes, that he would drive his car into agarden and make a speech from it, the loud-speaker being intended tocarry his words to such in the tenements of each garden as did not comeout and hear him. It is strange that Mr. Goonesinha should not havemade any speech in any garden during this election.
According to Simon Rodrigo,oneBempySingho, atailor who sup-ported respondent, was presentandseeinghim theretookhim up to
Mr. Goonesinha who tried to persuade him to work for the respondent.When he refused to break hispromise topetitioner,Mr.Goonesinha
threatened him with the loss ofhislicence,remindinghimof the fact
that he held his licence from the Municipality. Rodrigo complainedihat very night to Mr. Proctor Saravanamuttu, who told him not to bealarmed, but nevertheless he was apprehensive. It it urged that thewitness must have known that the petitioner as Mayor would have moreinfluence than Goonesinha who had just ceased to be Mayor. Perhapsit was that feeling that reassured him, but: still he might well have fearedthat it was within Mr. Gooneainha’s power to make trouble for him.Rodrigo had heard that there was an application for a boat licence byanother man but had not taken serious notice of it.
Simon Perera says that about the encl of March he applied for a boatlicence, giving as his reason that Oxygen-welding was affecting his eye-sight. As the result of an accident on October 4, his eyesight had beenaffected. It took the witness some time to grasp the fact that he was-expected to say that Oxygen-welding had been affecting his eyesightfor many years and he had therefore contemplated giving up that workand taking to his boat again. He said he had an application draftedfor him in pencil by a petition-drawer working near the Town Hall,
• hat he presented it and received the reply R 4, dated May 28, whichrefers to a letter dated March 31 and asks him to fill in and return theenclosed form. R 4 is addressed to him at Big Maligawatta, Colombo,though he lives at Peliyagoda in a building owned by his employer.It is from this document that one is asked to infe^r that his applicationwas dated March 31. The application itself has nor been producednor the date of its receipt by the Municipality proved. Because thatapplication presumably was dated March 31. the Court is asked to holdthat it destroys the charge. Simon Perera would not have made hisapplication without some backing- He says that he had the supportof a Mudalali, who had actually gone with him to have his applicationdrafted. The Mudalali was not called. No reply was received' till afterMay 28 and Simon Perera had taken no action in the matter nor consultedanyone about it. This election petition was filed on May 19.
Simon Perera is still employed under the chetty, still lives on premisesbelonging to the chetty, and has not abandoned Oxygen-welding.
Nominations had been received before March 31, and the campaignhad commenced even earlier, and it is a fact worth noticing that it was
328
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva.
at this stage that Simon Perera would be coming in had reached SimonRodrigo before April 23. Simon Perera said that an engineer of theMunicipality had been round to inspect his boat on three occasions;on two occasions he was unable to show the engineer the boat becauseit had been cut adrift and damaged by Simon Rodrigo and had there-fore been taken away and put away in somebody’s garden, but no questionon this point was put to Simon Rodrigo.
According to Simon Perera the engineer on his third visit had told himthat certain alterations were needed but three days later his depositof Rs. 3 was returned to him. This seemed to me so curious that I put hima few questions in answer to which he confessed that he owned no boatat the time he applied for a licence but had purchased a boat threemonths afterwards. Assuming that he was referring to an applicationof March 31, he had not procured his boat till the end of June.
The documentary evidence and the evidence of Simon Perera do notshut but the possibility of Simon Rodrigo’s evidence being true. Oh thecontrary they suggest that Simon Perera’s application could not havebeen seriously intended but was made with a view to providing a meanswhereby Simon Rodrigo could be influenced.
Simon Rodrigo impressed me as a truthful witness. He is supported byWilliam Sinno, a collector of rehts from the tenements situated in agarden in Grandpass road. He had been present in Lukmanjee Square,taking an active part on behalf of the petitioner and had received a blowon the head from a stone thrown after the meeting. He admits he wasconvicted about 2 years ago but says it was under these circumstances :He was canvassing for a Tamil man who owned a petrol pump; owingto the movement to establish Sinhalese boutiques, in which he also tooka part, he was dismissed by his Tamil employer and he then used hisinfluence to divert custom from that petrol station to another; that ledto an incident which resulted in his conviction, when he was .fined Rs. 10and bound oVer for six months.
I accept the evidence on this charge and hold that Mr. Goonesinhawas guilty of using undue influence towards Simon Rodrigo.
To sum up—
The election is declared void under Article 74 (a) ;
The respondent also loses his seat by reason of—
Treating by his agent A. J. S. Perera ;
The use of undue influence by his agents, Goonesinha and
Julian Fernando.
The question of costs remains to be decided. Respondent is not capableof paying any and it seems futile to make any order. The petitionerhas succeeded on the ground of general intimidation, which took mostof the time, and also on a few of the specific charges. On the other handhe has failed in many of the specific charges. If costs are to be taxedI should allow him one third of the costs taxable in the highest class of theDistrict Court, but I think it will be in every way better to fix the costswhich respondent must pay at Rs. 3,000. These will be the costs unlessCounsel has any reason to urge against such an order.
DE KRETSER J.—Dr. R. Saravanamuttu v. M. Joseph de Silva. 329
Notice in terms of Article -79 (2) will issue at once on Goonesinha,A. J. S. Perera, and Julian Fernando, to show cause on January 17, 1942,why they should not be reported in terms of my finding. They havegiven evidence already. If they desire to call evidence or to have alonger date they must inform the Registrar before January 10, and he isauthorised to fix some other date after reference to me. I fix the dateshaving in mind the statutory holidays which intervene.
I wish to add some remarks relating to procedure. This petition waspresented on May 19, but the hearing did not begin till October 6. Suchdelay should be avoided.
.On a petition being presented the Registrar should obtain the directionof the Chief Justice and if he decide to nominate a .Judge that should bedone at once. On security being furnished and perfected the Registrarshould have an early date of hearing fixed, if the Flection Judge has notalready fixed it.
The petitioner is allowed twenty-one days in which to present hispetition and in that time he ought to gather the information necessaryto state his case with particularity.
The petition in this case merely alleged treating in terms of Article 52.undue influence in terms of Article 53, and general intimidation andimpersonation in terms of Article 74 (a). In my opinion such a petitionis not what the law contemplates and where specific charges are beingmade they should be shortly stated. In the Lancaster Division Case ’Mr. Baron Pollock drew attention to the right of the respondentto be placed in possession of the charges within the definite periodfixed by the Act and remarked that it would be extremely harshif time and advantage were given to the petitioner by reason of thegeneral form in which the petition is drawn. Mr. Justice Bruce saidhe would wish to see in a petition separate paragraphs setting out thecharacter of the offences charged against the respondent. Rule 5of the Ceylon Order in Council requires not only that the grounds reliedon should be stated but also a brief statement of the facts relied upon.These facts seem to correspond with the “ short particulars ” of Englishpractice.
The provision which authorises an order for particulars is not meant tojustify vague general charges of specific offences but to prevent surpriseand unnecessary expense and to cause a fair and effectual trial.Respondent should apply for particulars if he desire any, at' the earliestmoment. Lists of witnesses should be filed, with notice to the oppositeside, within a reasonable time and should sufficiently indicate who thewitnesses are. No further lists should be allowed after the hearingbegins without an express order by the Judge. In this case the respondentapplied for particulars and also for a precis of what each wtiness wouldsay. The latter part of his application was- disallowed but after thehearing began he seems to have filed supplementary lists of witnessesand this was discovered by me only at a late stage. He had by thenexamined a number of Inspectors of Police and moved to cite a number ofsergeants. Having been refused a precis of the proposed evidencehe went one better and not only had the full evidence for petitioner but *
* O'M. ds H. V 39.
330
NlIilLL J.—Mohamed v. Condrad.
also the cross-examination of his own witnesses before summoning someof his witnesses. Such procedure contravenes an elementary rule thatadditional evidence should not be allowed after the pinch of a case hasbeen felt and it tends to prolong a hearing unduly. I do not wish to beunderstood to be attaching any blame to Counsel, who conducted theircases with ability, moderation and commendable expedition. In aprevious election petition inquiry I find that the examination of about40 witnesses took six weeks. It is to Counsels’ credit that the examina-tion of 95 witnesses on this occasion took only a few days longer. Hadparticulars been called for earlier it is possible that a number of chargeswould not have been made ox. pursued and a number of witnesses mightnot have been called.1
Election declared void.