E. L. SENANAYAKE, Appellant, and H. M. NAVARATNE et al. , Respondents

061-NLR-NLR-V-55-E.-L.-SENANAYAKE-Appellant-and-H.-M.-NAVARATNE-et-al.-Respondents.pdf

Senanayake v. Navaratne
.193
Present : Nagalingam A.C.J., Gratiaen J. and Pulle J.
E. L. SENANAYAKE, Appellant, and H. M. NAVARATNEet al., Respondents
Election- Petition- Appeal No. 1 of 1953
Election Petition 3 of 1952, Kandy
Election Petition—False declaration as to election expenses—Ground for unseatingmember—Time limit for presenting election petition—“ Candidate ”—Corruptpractice of printing and publishing handbills, <&c., without disclosing addresses ofprinter and publisher—Corrupt intention—Necessary ingredient—“ Publisher ”—Statute toith retrospective operation—Scope of its effect—Ceylon (ParliamentaryElections) Order in Council of 1946, ss. 3 (1), 58 (1) (e) and (/), 70, 73s,, 77,82s, and b, 83 (1), 83 (1) (6) (i) and (ii), 83 (2)—Ceylon (.Parliamentary Elections)(Amendment) Act, No. 26 of 1953, ss. 5, 6.
Meld, by Nagalingam A.C.J. and Pulle J. (Gratiaen J. dissenting), thatknowingly sending a false return of election expenses, being a corrupt practiceunder section 58 (1) (J) of the Parliamentary Elections Order in Council of1946, falls -within the ambit of sections 77 (c) and 83 (1) (a). The act of makingthe declaration is an act done “ in pursuance or in furtherance ” of that corruptpractice, and no other act is necessary before a petition can be presented withinthe period of twenty-eight days prescribed in section 83 (1) (a). The definitionof “ candidate ” in section 3 (1) is applicable to a candidate even after hiselection as member.
Held, by Gratiaen J. and Pulle J. (Nagalingam A.C.J. observing tothe contrary), that, under section 58 (1) (c) of the Parliamentary ElectionsOrder in Council of 1946, a corrupt intention must be proved in order to estab-lish the corrupt practice of publishing handbills, posters and.placards withoutthe name and address of the publisher appearing thereon.
The Parliamentary Elections (Amendment) Act, No. 26 of 1953, has, in theabsence of express provision to that effect, no relevancy to the issues involvedin determining an election petition appeal which was pending at the time it•was passed. Scope of its retrospective operation considered.
Per Gbatiaen J.—Section 58 (1) (c) of the Parliamentary Elections Orderin Council of 1946 requires both the “printer” and “ publisher ” to be disclosedin the documents specified. The term “ publisher ” is not confined in thecontext to persons professionally engaged in the publishing trade.
PPEAL from, the order of the Election Judge in Election Petition,Kandy.
H. V. Perera, Q.C., -with G. E. Ghitty, C. C. Rasaratnam, G. T. Samera-wickreme and Izctdeen Mohamed, for the respondent appellant!
9 & 10lv
21. tf. B 31310-1,592 (11/53)
194
2-TAGALINGAM A.C.J.—Senanayake v. Navaratne
S. Nadescm, with Stanley de Zoysa, A. I. Bajasingham, V. S. A. Pulle-nayagam, C. Mahadeva, A. K. Premadasa and J. SenatMrajah, for thepetitioners respondents.
Cur. adv. vult.
December 18, 1953. Nagalestgam: A.C.J.—
This is an appeal from an order declaring the election of the appellantvoid on the ground that he was guilty of corrupt practices in that he—
published handbills, posters and placards without the name of the
publisher appearing thereon ; and
knowingly made the declaration as to election expenses falsely.
The appellant contends that the finding of the learned Election Judgein respect of both these questions is erroneous.
I shall first deal with the second of the corrupt practices set out above.It is contended on behalf of the appellant as a matter of law that the corruptpractice of knowingly making a false return of election expenses is nota ground upon which either an election petition can be presented or amember unseated ; and this argument has been based mainly on thelanguage of the proviso to sub-section (1) of section 83 of the Order-in-Council..
Now, the main provision of sub-section (1) of section 83 prescribesthe time limit within which an election petition can be presented toCourt, and it expressly declares in non-ambiguous language that an electionpetition must be presented within twenty-one days of the date of publica-tion of the result of the election in the Government Gazette. In such apetition every ground set out in section 77 which would avoid an electionwould be capable of inclusion, whether committed before, during orafter the election. It is necessary, however, to pause for a moment toconsider the extent to which any corrupt or illegal practice committedafter the election could be so included. The petition can include onlymatters which may have been committed prior to its presentation, sothat only corrupt or illegal practices committed subsequent to theelection but prior to the presentation of the petition may be set out inan election petition presented within the limit of twenty-one days inregard to corrupt or illegal practices committed after the election. Sucha petition cannot, for instance, allege in advance a ^corrupt or illegalpractice.that may be committed after its presentation. In fact, if authoritywere necessary in support of this proposition it is to be found in thecase of Cremer v. Lowles h That was a case where an election petitionhad been presented in terms of section 6 of the Parliamentary ElectionAct, 1868,2 within twenty-one days after the return of the election had
(1896) 1 Q. B. 504.
2 31 <& 32 Yict. c. 25.
XAGrAUZN'GAM A.C.J.—Senanayake v. Navaratne
195
been made to the Clerk of the Crown in Chancery embodying not onlycharges of breach of trust, undue influence and other specific chargesbut it also set out in general terms that other corrupt and, illegal practicesbefore, during and after the election had been committed. Particulars wereordered to be filed, and the petitioner furnished inter alia particulars ofillegal practices alleged to have been committed in connection with thereturn of election expenses. The return of the election expenses wasfiled after the expiry of the period of twenty-one days allowed for thefiling of the petition, and in fact after the petition itself had been filed.No application to amend the petition as permitted by the relevantprovision of the English Statute corresponding to section 83 (2) of ourOrder-in-Council had been made. On an application to strike Out theparticulars alleged in relation to election expenses, Lord Halsbury L.C.in allowing the application observed :
“ The objection is that the charges founded on the return of expensesare not covered by the petition, to which, it is answered that the chargesmade by the petition are so general in their character that theymay be so enlarged by the particulars as to make new and independentcharges.
* ^ *
The charges dealt with in this statute and of which particularsmay be ordered to be given are necessarily the charges made by thepetition, and it is really impossible to hold that charges founded onevents which have happened since the presentation of the petition canbe said to be charges contained in the petition.
* # *
When once the matter is carefully looked at, it becomes clear thatif the petitioner’s contention is right the time limit of twenty-one daysfor the presentation is merely colourable, for if the trial of the petitiondid not come on for some months after the presentation, a memberpetitioned against in August might be unseated for an offence committedin October and treated as an offence charged in the petition.”
In the same case, Lopes L.J. remarked that—•
“■ it is quite right that matters which have happened after the electionshould be included in the petition. It is very different with regardto the matters which do not happen until after the presentation ofthe petition itself.”
And Rigby L.J. indicated what the petitioner might have done in these•words :
“ The petitioner ought to have exercised the power of amendingthe original petition or presenting one founded on the offencescomplained of within the time limited for so doing.”
190
NAGAUDSTGAM A.G.J.—Senanayake v. Navaratne
This judgment of the House of Lords on an appeal preferred to it is the-last of the pronoun cements on the subject and is a clear authority forthe proposition that an offence committed after the presentation of thepetition cannot be brought under a charge, however general in itscharacter, made in the petition.
Furthermore, under the main provision of section 83 (1) not only c an notoffences committed subsequent to the presentation of the petition beinquired into, but even offences committed prior thereto, where suchoffences have neither been set out in the petition nor been added to itby means of an amendment made within the time allowed for the presenta-tion of the petition itself ; and that no amendment in respect of offences,committed before the expiry of the period of twenty-one days could bepermitted after that period will also be obvious.
In the Norwich Case1 which came up before a Bench of two Judges rin regard to an application to amend the petition after the expiry of twenty-one days by alleging.further grounds committed prior thereto, the Courtrefused the amendment, and Matthew J. observed that the Court—
“ had no power to allow of such an amendment after the lapse oftwenty-one days, especially when introducing general charges ofbribery, etc. The limitation of the period of twenty-one days was the-basis of the Statute, and would be defeated if such amendments wereallowed.”
The case of Maude v. Lowely 2 is also to the same effect. That the caseis one relating to Municipal Elections makes no difference, for the provisions(sections 3 and 13 of the Corrupt Practices (Municipal Elections) Act3 }are similar to the corresponding provisions of the Corrupt and IllegalPractices Prevention Act4, which relates to Parliamentary Elections-That was a case where it was sought to amend the petition after a periodof twenty-one days by adding the names of new burgesses on the groundthat they had been employed for payment and reward as canvassersfor the purpose of the election and that their names were discoveredsubsequent to the presentation of the petition. The amendment wasrefused.
Another case relating to Municipal elections is that of Clerkx et al. v.Lowely 6 where an application to amend the petition by adding a chargeof treating committed prior to the expiry of the twenty-one days to a-charge of bribery formulated in the petition was refused.
In view of the authorities the following propositions may be deducedfrom a consideration of the language of the main provision of sub-section
of section 83’:—
(1) Corrupt or illegal practices committed, whether before, during orafter the election but prior to the expiry of the twenty-one-days from the ’date of publication of the result of the election
1 (188o) 2 T. L. R. 273.3 35 <S> 36 Viet. c. 60.
3 (1874) L. R. 9 C. JP. 165.4 46 <& 47 Viet. c. 51.
3 (1883) 48 T. L. R. 762.
ICAGALrIN'GrAM A.C.J.—Senanayake v. N'avaralne
197
in the Government Gazette can form the subject of an electionpetition if such charges are included in a petition presented■within twenty-one days.
{2) Such corrupt or illegal practices cannot he included in the petitioneven by way of amendment after the expiry of twenty-one days.
(3) Corrupt or illegal practices committed after the date of presentationof the petition cannot be made the subject of trial on such apetition, even by reference to the general terms in which the^charges had been formulated in the petition.
"While the main provision, it will be seen, deals exclusively with corrupt■or illegal practices committed not later than twenty-one days after thedate of publication of the result in the Gazette, the proviso to it extendsthe time for presenting the petition in respect of corrupt or illegal practices■committed after the publication of the result and therefore also afterthe period of twenty-one days. Advantage cannot be taken "under theextended period permitted by the proviso to present a petition in respectef a corrupt practice committed prior to the date of publication of theresult. A corrupt practice committed prior to such date must, in view ofwhat I have already stated, and can form only the subject of a petitionpresented within twenty-one days, although such a corrupt practicemay be implemented subsequent to the expiry of the period of twenty-one days. To make my meaning clear, I should take as an illustrationthe case of a promise of a bribe made prior to election in order to inducethe elector to vote. Now, such a promise though not carried into effectand implemented by payment of money is in itself a corrupt practiceunder section 57 (a) of the Order-in-Council. Such a promise can andmay form the subject of an election petition presented within twenty-one days of the publication of the result, but it cannot be made the subjectof a petition presented under the proviso to section 83 (1). If the promise■were in fact implemented, say six months after the publication of theresult of the election by payment of money to the voter to whom thepromise was made, the payment itself is another and distinct corruptpractice and can properly form the subject of an election petition presentedwithin the terms of the proviso. It is to be emphasized that the circum-.stance that the promise made anterior to the election is implementedby payment long after does not entitle a petition to be presented on theground of the promise under the provisions of the proviso. What canin fact be the subject of a petition presented under the proviso as thecorrupt practice is the payment of the sum of money, though undoubtedlyit must have been in fulfilment of the earlier promise made.
It is necessary at this point to call attention to the requirement ofthe Order-in-Council that where payment is made to an elector on account-of such elector having voted or refrained from voting, it must be estab-lished that the payment was made corruptly. In order to establish thatthe payment was made corruptly, it certainly would be legitimate to-tender in evidence that a promise had been made anterior notwithstanding
198
3STAGAX.XNGAM A.C.J.—Senanayake v. Navaratne
the fact that the anterior promise, which itself, as stated earlier, was acorrupt practice, had not been made the subject of an election petition.Such a case is the Kiddeminster Case1. That is a case where the petitionwas presented “ not under the ordinary law, that is to say within, twenty-one days, but under a subsequent part of the sixth section of the Parlia-mentary Elections Act, 1868 ” (corresponding to the proviso to oursection 83). There was evidence in that case that promises both anteriorto the election and on the day of the election to treat had been made-by the candidate and that after the election preparations were madefor the treating and the candidate provided funds for such treating-The payment of the funds was the subject of the inquiry, and that was-the corrupt practice before the Court. Evidence of the anterior promisewas admitted to prove the corrupt motive in providing funds for treating.It may be that the simplest method of proving that payment of a sumof money by way of bribe for having voted in the election and therefore-committed subsequent to the election was made corruptly is by giving-evidence of some act anterior, such as a promise made anterior to theelection, but non constat that that is the only method of proving thata bribe given subsequently to the election for having voted at the electionhad been made corruptly. If, for instance, two months after the declara-tion of the results a candidate expressly stating that’he was rewardinga voter for having voted for him paid a sum of money, no further-evidence would be necessary beyond his own statement to show that thepayment was made corruptly. Such a case would be within the section,,for it is a payment made corruptly for having voted.
To this effect is an observation of Grove J. in the Poole Election Case 2-Indeed the provision itself is abundantly clear, and if the two elementsof corruptness and payment for having voted can be established in anymanner, the corrupt practice is complete. The Brecen Case3 may besaid to lay down the proposition in a contrary sense, but if it is carefullylooked at, it will be seen that what the Judge did hold there was thatthere was no proof of the corrupt treating, and it was a case of treatingnot having been done with improper motive. The Judge who decidedthe Brecen Case (supra) in the subsequent Harwich Case4 may be saicLto have taken the opposite view, but that case again if carefully scrutinisecLwould only reveal that he had found as a fact that the payment of themoney was made corruptly. There are other cases (Carrick Fergus5 andCoventry6) which may be said to establish the proposition that thecorruptness must be referable to something which preceded the election,but those cases cannot be said to lay down or to negative the propositionthat where the corruptness can be shown by proof of circumstancesarising entirely subsequent to the declaration of the polls that the offenceof corrupt practice is not committed.
It is indisputable that there are corrupt and illegal practices whichcan only come into existence after the expiry of the said twenty-onedays, and that they need not necessarily have any connection withanything, done before the expiry of that period cannot also be doubted-
(1874) 2 O.’M & H. 170.
2 O’M. & H. 123.
2 (1871) 2 O’M. & H. 43.
(1880) 3 O’M. & H. 70.
3 O’M. & H. 90.
« 1 O’M. & H. 106.
NAGALENGAM A.C.J.—Serumai/ake v. Navaratne
199
For instance, payment of money by an election agent in respect of expenseslegitimately incurred in the conduct of an election after the expiry oftwenty-eight days after the day on which the candidate is declaredelected is an illegal practice, and such an illegal practice can only haveits nativity after the expiry of the twenty-one days allowed for presentingthe petition; or, to take an instance of a corrupt practice, a false declara-tion in regard to election expenses need only be made within thirty-one days of the publication of the result of the election, and in very manycases such a declaration would in practice be made after the expiryof the twenty-one days limited for the presenting of an election petitionunder the main provision.
Now, where it is sought to question the return of the candidate on theground of an illegal practice as instanced above, paragraph (b) (ii) of theproviso would permit of such a petition being presented within twenty-eight days after the date on which the illegal payment was made. I cansee nothing in the language of paragraph (6) (ii) for holding that suchan illegal practice is excluded from being made the subject of an electionpetition. If such were the intention of the Legislature, it could verywell have said so, and that quite easily too, but it has not chosen todo so.
It seems to me that paragraph (6) (ii) of the proviso would operateif the following are established :—
that the petition questions the return of the candidate on the
ground of an illegal practice ;
that a specific allegation of payment of money or other act is made
therein;
that the payment or act alleged should have been made or done
after the date of publication of the result of the election ;
that the payment or act was made or done in pursuance or in
furtherance of the illegal practice alleged.
If these elements are proved, then an election petition may bepresented within twenty-eight days of the date of payment or of theother act.
As this paragraph requires that the payment or act should have beenmade or done in pursuance or in furtherance of the illegal practicealleged, it is said that the illegal practice must be something distinctfrom the payment or act made or done, and must precede such paymentor act. It is true £hat the term “ in pursuance of ” may be used to showthe continuation of a process, scheme or act, but it can and does alsomean the carrying out the process, scheme or act, and one single actionmay carry out and at the same time bring into and disclose the existenceof the process, scheme or act. For instance, a man in pursuance of com-mitting theft may pick the pocket of another. Here, the :picking of thepocket would in itself be the sole action in pursuance of committing
200
3STAGAXXN"GAM A.C.J.—Senanayake v. Navaratne
theft and itself gives birth to and discloses the offence. It ’will be idleto contend that the theft itself must be something distinct from theact of picking the pocket. The phrase “in furtherance of” has a similarmeaning in this context. It means “ in advancement, in execution or incommission of ”.
In the case of the illegal practice instanced, the unauthorized paymentitself is made in pursuance or in the carrying out of the illegal practice,and brings in fact the illegal practice into existence. It is said that if this•were the meaning, the words “ in pursuance or in furtherance of theillegal practice ” may well have been omitted. One might test this. Ifthe paragraph were written omitting the words “ in pursuance or infurtherance of the illegal practice ”, it would run as follows, if one confinedone’s attention to the case of the candidate alone :
“ If the election petition specifically alleges payment of money orother act to have been made or done since the said day by themember whose election is questioned, the petition may be presentedat any time within twenty-eight days.”
It would' be apparent on a reading of this truncated paragraph thatthe payment of money or other act need have no relation to or connectionwith the illegal practice upon which the petition may be presented.It is not any payment or act made or done that is intended to enlargethe time for – presentation of the petition, but only a payment or actconnected with the illegal practice alleged. The words in question have,therefore, been employed, it may be said, for the sake of showing theintimate connection between the payment of money or other act andthe illegal practice that is alleged. In fact, the phrase “in pursuanceor in furtherance of a corrupt practice ” has been understood not in thesense of one act following upon another but merely as the carrying outof the act itself by English Judges.
Lord Coleridge C.J. in Maude v. Lowely (supra) dealing with a similarprovision uses language which clearly establishes .what is the propermeaning to be attached to these words :
“ The enactment is distinct that the petition must be presentedwithin twenty-one days except in the one specified case of an offence(corrupt practice) not discovered since the election but which hastakenplace since the election, and in such case the petition may be presentedat any time within twenty-eight days not after the discoveryof the offence but from, the talcing place of that which constitutes theoffence.”
r
. It is .extremely singular that in England, the home of election law,never has an attempt been made to- contend, judging by the dissertationsof text books writers or reported cases, that the phrase “ in pursuanceor in furtlierance of a corrupt or illegal practice ” must be construed asdenoting the conception that one act must be shown to follow uponanother.
NAGALENGAM A.C.J.—Senanayake v. Navaratne
201
I now come to a consideration of paragraph (a) of the proviso, whichis the provision that governs the present appeal. The language of thisparagraph is similar to the language of paragraph (6) (ii), and it is difficultto say that a different construction or different approach becomesnecessary to construe it. In regard to this paragraph of the proviso, theelements necessary to be established are :
that the petition questions the return upon the ground of a corrupt
practice ;
that a specific allegation of payment of money or other act is made
therein;
that the payment or act made or done should have been made or
done subsequent to the date of publication of the result of the
election ;
that the payment of money or act was made or done in pursuance
or in furtherance of such corrupt practice.
If these exist, then a petition may be presented in terms thereof withintwenty-eight days after the date of payment or act made or done.
It is not denied that the corrupt practice in regard to the declarationof election expenses consists in making the declaration knowingly andfalsely. Can it then be said that the act of making the false declarationknowingly is not in itself the act done in pursuance of or in carrying outthe corrupt practice ? Surely not. Indeed, given one act which in itselfis a corrupt practice, what need is there for a subsequent act ? Thefirst act is complete in itself as a corrupt practice. No subsequent actcan be of the slightest aid in regard to what is already a corrupt practice.In fact, if any subsequent act be done having any connection with theprior corrupt practice, it will in itself be a corrupt practice giving riseto a new right to present another petition. I do not think that someother act than the making of the false declaration is necessary before apetition could be presented under the proviso. Besides, insistence uponsuch a requirement as is contended for would be to do violence to theplain words of the Order-in-Couneil. Section 77 expressly states thatthe election of a member shall be declared void on proof of the commissionof a corrupt practice in connection with the election. The words “ inconnection with ” are plain in themselves, and mean “ in relation to ”.Section 58 specifically declares that the making of a false declaration asto election expenses knowingly is a corrupt practice. That such adeclaration is made in connection with the election no one will gainsay.Under paragraphs (a) and (6) of the proviso to section 83 (1), the groundfor avoiding an election remains a corrupt or illegal practice even asunder a petition presented within twenty-one days under the main pro-vision. But what is further required to be set out under the provisois the specific act which constitutes the corrupt or illegal practice butwhich in the case of a petition presented within twenty-one days neednot so be set out. It seems to me that the object of the Legislature in
2*J. N. B 31310 (11/53)
202
■ITAQAXtNSAM A.C.J.—Senctnayake v. Natiaratno
requiring the specific act to be set out is that there should be an avermentin the petition presented under the proviso showing that the petitionis presented vgthin the time allowed thereunder. It could not haveused the term “corrupt or illegal practice” because both those aregeneric terms and may include various acts each one of which wouldamount to a corrupt or illegal practice, and it is conceivable that in apetition presented under the proviso several acts of payment each ofwhich constitutes an act of bribery may all be alleged in the same petitionprovided all those acts were committed prior to twenty-eight days ofthe date of presentation of the petition.
Gunasekara J. in Kunasingham et al. v. Ponnamhalam.1 seems tohave thought that the filing of the return and declarations was a separateact done in pursuance or in furtherance of the corrupt practice of makingfalse declarations. Swan J. in Chelvanayaka/m v. Natesan2 arrivedat a view more or less analogous and held that the actual preparationof the false return was the corrupt practice, and the transmission ofthat return to the election officer was the other act done in pursuanceor in furtherance of the corrupt practice. It is obvious that the learnedJudges elearly arrived at the results they did, for no one reading theprovision can help but arrive at the conclusion that the making of a falsedeclaration knowingly was a corrupt act which the Legislature hadintended to declare to be a ground for avoiding a seat. A contraryresult would have evoked the remark that the statute had been subjectedto a construction which would “ suppress the remedy and advance themischief ”. I do not think they had the benefit of the arguments ad-vanced before us, and I am satisfied that the true construction is thatthe phrase “in pursuance or in furtherance of the corrupt practice”merely refers to the carrying out of the act which constitutes the corruptpractice and not that there should be a link or connection between thecorrupt practice as an isolated act, and the payment of money or otheract, as another isolated act.
It was also suggested that an act done in its entirety subsequent tothe election cannot form the subject of a petition presented under theproviso. In support of this proposition reference was made to para-graph (d) of section 77, which provides that the engagement of a personas an election agent who had been found guilty of a corrupt practice is aground for unseating a candidate, and therefore could be made the subjectof an election petition presented within twenty-one days ; based on thisprovision the question has been asked whether the employment of suchan election agent after the expiry of twenty-one days of the date ofpublication of the result for the purpose, say of making the return ofelection expenses, could be made the subject of the petition under theproviso, and has been answered in the negative, which is the properanswer to it. From this it has been contended next that the making ofa false declaration of expenses knowingly cannot similarly form thesubject of aj petition under the proviso, as the entirety of that act too isperformed subsequent to the election. I think it is a clear case of non-
2 (1952) 54 N.L.R^Oi
» (1952) 54 N.L.R. 36
NAGAI.INGAM A.C.J.—Senanayake v. Navaratne
203
sequitur. In the former case why an election petition cannot be presentedunder the proviso is that not because the employment takes place afterthe election but because the Legislature has not thought it fit to makesuch an engagement a corrupt or illegal practice, and therefore that actdoes not fall within the proviso ; but in the latter case the Legislatureexpressly states that knowingly making a false return is a corrupt practiceand the act falls expressly within the terms of the provisions containedin the proviso. The Legislature may have its own reason for not declaringthe former case a corrupt or illegal practice, but that is no indicationthat an act which it declares to fall within the proviso is therefore not tobe treated as coming within it. Election petitions have been presentedin England to have an election avoided on this very ground of makinga false declaration of expenses knowingly. It does not appear everto have been contended there that the fact that such declaration is madesubsequent to the election is a ground for holding that the election cannotbe avoided. See the Oxford 1 and Berwick upon Tweed2 cases, wherethe elections were avoided inter alia on the ground that the electionagent had made a false declaration of expenses.
Another line of argument was advanced based upon paragraph (c)of section 77 of the Order-in-Council. It was urged that the return ofelection expenses was made by the appellant after his election as a memberand that therefore the return of election expenses was made by him notas a candidate but as a member, and that he was therefore beyond thepale of this provision, which refers to a candidate and not to a member ;in other words that section 77 (c) must be restricted to-acts done by acandidate qua candidate. This argument was sought to be reinforcedby reference to the definition of the term “ candidate ”.“ Candidate ”
is defined in the interpretation section 3 as meaning a person who isnominated as a candidate at an election or is declared by himself to be oracts as a candidate for election to any seat of the House of Representatives.It is true that this definition does not refer to a person who has beenelected as a member, as in the English Act. But does it follow that thedefinition in the Order-in-Council does not apply to a person who hasbeen elected a member ? Can it be said that on election he divestshimself of his character of a person who is nominated as a candidate atelection or is declared by himself to be or who acts as a candidate forelection to any seat of the House of Representatives ? The obviousanswer to the question is “ No ”. In fact there are other sections in theOrder-in-Council where a member after his election has been referredto as a candidate, for instance section 70(3). Unless there is expressprovision declaring that a candidate on election shall cease to be termed acandidate, the definition continues to apply to a candidate even afterhis election as member, for he retains all the characteristics of a candidateas set out in definition, but what may, however, be said is that he hassince acquired an added qualification in that he has been elected a member,which does not in any way detract from the character of his being acandidate. I do not think, therefore, that there is any substance in thisargument.
1 7 O' M. cfe H. 49.
*7 0' M. <a H. 1.
204=
GRATIAEN J.—Senanaydke v. Navaratna
An attempt was made to show that the Election Judge has misdirectedhimself on the facts and that such misdirection amounts to, a misdirectionin law. But a narration of the facts accepted by the learned Judgeestablishes most conclusively that his finding that the appellant was guiltyof knowingly having made the declaration in regard to election expensesfalsely is unassailable.
I therefore arrive at the following results :—
that the appellant did knowingly make a false declaration of
election expenses;
that the making of such declaration is a corrupt practice under
section 58 of the Order-in-Council;
that such corrupt practice is a ground for avoiding the election.
In view of the conclusion X have reached on this charge, X do not thinkit is necessary or profitable to enter upon a discussion of the argumentssubmitted in respect of the first charge, which would at this stage bepurely of an academic character. Nor do I think it necessary thatthe appellant should be afforded an opportunity of' placing evidencebefore Court in terms of section 73 (a) of the Order-in-Council, for what-ever view one may take of the first charge, the appeal as a whole mustbe dismissed in view of the finding in respect of the second charge. Ishould, however, wish to make this observation that X am in agreementwith the finding of the learned Election Judge even in respect of the firstcharge.
For the foregoing reasons, I hold the appeal fails. Having regard tothe view of the majority, the order is that the appeal is dismissed withcosts, which with the concurrence of my brother Pulle J. I fix at fivehundred guineas.
Gbatxaes J.—
This appeal was filed on 18th February 1953 against a determinationinvalidating the appellant’s election as a Member of the House ofRepresentatives for the Kandy Electoral District. The grounds of thedecision were as follows :—
that he had committed a corrupt practice within the meaning ofsection 58 (1) (c) of the Ceylon (Parliamentary Elections) Order -in-Council 1946 by publishing certain advertisements, handbills,placards and posters relating to the election^ “ which did notbear upon (their) face the names and addresses of (their) printersand publishers ” ;
'(2) that he had also committed a corrupt practice within the meaning
of section 58 (1) (/) by “ knowingly making the declarationas to his election expenses required by section 70 falsely ”.
G-RATIAEN J.—Senanayake v. Navaratne
205
He complains that the decision against him on. each of these allegationswas contrary o law.
As to the alleged contravention of section 58 (1) (c), the learned electionjudge held that the appellant had himself “ published ” the documentsconcerned for the purposes of his election campaign, and that none ofthem bore his name or address as that of its “ publisher The learnedjudge did not record a finding that the acts complained of were in anysense committed “ corruptly ” nor is it suggested that such a findingwould have been justified ; he decided, however, that a corrupt intentionneed not be established as an element of the offence. The appellantchallenges the correctness of this interpretation. '
There are two additional issues of law which can conveniently be dis-posed of first. It has been argued that section 58 (1) (c) refers only todocuments in which the names and addresses of both the “ printer ” andof the “ publisher ” are absent, and that there can be no contraventionif the name and address of at least one of them had been duly inserted.Putting it at the lowest, suggested Mr. H. V. Perera, the words rea-sonably admit of either construction, so that the appellant is entitled tothe “ benefit of the obscurity ”—Binns v. Wardale l.
I readily accept the proposition that “ a man is not to be put in perilupon an ambiguity ”—-per Lord Simonds in LondonN. Eastern Ely.
Go. v. Berriman2, and Howell v. Falmouth Boat Construction Co. Ltd. 3,but, in my opinion, section 58 (1) (c) clearly requires the identity of boththe “ printer ” and the “ publisher ” to be disclosed in printed docu-ments of the description specified. I am also satisfied that, upon theundisputed evidence led at the trial, the appellant was in fact and in lawthe “ publisher ” of the documents concerned. When literature of thiskind is distributed for promoting an election campaign, prospectivevoters are entitled to know whether it was released for publicationby the candidate personally or by someone else ; and if by someoneelse, who that person was—Schofield : Parliamentary Elections p. 30.The legislature is concerned, for obvious reasons, to discourage electionliterature from anonymous, pseudonymous or pretended sources. Iaccordingly reject the further submission that the term “ publisher ”must be confined in this context to persons professionally engaged inthe publishing trade. The language of the section does not justify such apurposeless distinction. Election literature always has a “ publisher ”.
So far, then, the judgment under appeal is unassailable. But was itcorrectly decided that “ a corrupt practice ” within the meaning ofsection 58 (1) (c) can be established without proof that a corrupt intentionhad accompanied the commission of the acts complained of ? In thepresent case, the “ offending ” documents were both genuine andinnocuous, so that the allegation against the appellant clearly failsunless the words of the section compel one irresistibly to the conclusionthat they are words of absolute prohibition—in which case a person
‘(1946) K. B. 451 at 457.2 (1946) A. O. 378.
(1951) A. 0- 887..
206
GRATXAEN' J.—Senanayake v. Navaratne
commits the prohibited acts at his peril unless (in this country) he canbring himself within the general exceptions prescribed by* section 69 or72 of the Penal Code—Weerakoon v. Rarihamy
Before I examine this issue it is necessary to decide whether the lawwhich applies to this appeal has been altered in any relevant respectsince the appellant exercised his right to challenge the adverse determina-tion of the learned election judge. On 25th April 1953, the Ceylon (Parlia-mentary Elections) (Amendment) Act No. 26 of 1953 passed into law.It amends section 58 (1) (c) by limiting its scope to prohibited acts com-mitted by candidates and their election agents, and adds the followingproviso :—
“ 73a. Upon the trial of an election petition respecting an electionunder this Order, a candidate or an election agent shall not be foundby the election judge to have committed a corrupt practice referredto in section 58 (1) (c), in relation to any advertisement, handbill,placard or poster, if the candidate satisfies the judge that the omissionof the names and addresses referred to in section 58 (1) (c), or anysuch name and address, as the case may be, arose from inadvertenceor from some other reasonable cause of a like nature, and did not arisefrom any want of good faith.”
Section 5 of the amending Act declares :—
“ 5. The amendments made in the principal Order by this Actshall be deemed to have come into force on the first day of January,1952, and accordingly, but subject to the provisions of sub-section (6)of section 6 of this Act, the principal Order shall—
for all purposes be deemed on and after that day to have hadeffect, and have effect, and
(&) be applicable in the case of any legal proceedings pending onthe date of the commencement of this Act,
in like manner as though that Order had on that day been afhendedin the manner provided by this Act ”.
Section 6 permits a candidate whose election had previously been setaside for a contravention of section 58 (1) (c)—i.e., in its unamendedform—to file an appeal or, if he had already done so, an' additional appealagainst that determination ; and (for the pruposes of that appeal) tolead evidence if he so desires which would have been admissible at theoriginal trial if section 73a had at that tvme been on the statute book. Thisnovel procedure affords the unseated candidate a ground of exonerationwhich had not previously been available to him.
(1921) 23 N. L. R. 33.
GRATIAEN J.—Senanagake v. Navaratne
207
The appellant has in fact taken the precaution of filing a second appeal(under section 6) which need only be considered if his earlier appealshould fail. Admittedly, the special provisions of section 6 have noapplication to the earlier appeal.
The question immediately arises whether the amending Act (whichundoubtedly has retroactive operation in many respects) has anyrelevancy to the determination of the earlier appeal. To what extentdoes section 5 give retrospective effect to the provisions of the amendingAct ? The new amendments certainly affect proceedings which werepending before election judges or district judges, and I understandthat they were in fact applied in one such case. I concede also that thepresent appeal dated 18th February 1953 cannot (subject to the importantissue of relevancy) be excluded from the category of “ legal proceedingspending on the date of the commencement of this Act ” within themeaning of section 5 (6) ; nevertheless, the issue of relevancy mustultimately depend upon the true scope of our appellate functions underthe Order-in-Council in relation to appeals filed before the amendmentpassed into law.
Our jurisdiction under section 82b is “ strictly appellate ” in its nature—that is to say, the Supreme Court is, for the purposes of an appeal filedunder section 82a, empowered only to decide whether the determinationof the election judge was right or wrong on matters of law at the timewhen he arrived at his decision. In other words, the Court does notpossess the wider jurisdiction which is involved in the disposal of appeals“ by way of re-hearing ”.
The distinction between the functions of a Court vested with a strictlyappellate jurisdiction on the one hand, and of a Court empowered todispose of appeals “by way of re-hearing” on the other, is of specialimportance when fresh legislation (even if it has some retrospective effect)has been passed after the date of the judgment of the court of first instancebut before the appeal against that judgment has been concluded. JessolM.R. pointed out in Quitter v. Mapleson1 that “ on an appeal, strictlyso-called, such a judgment can only be given as ought to have been givenat the original hearing ”, so that subsequent legislation, even thoughretroactive in other respects has, in the absence of express provision tothat effect, no relevancy at all to the precise issues which arise in determin-ing a pending appeal ; on the other hand, “ a court of re-hearing ” isempowered “ to make such an order as ought to be made according to thepresent state of the law ”, that is to say, taking into account all relevantmaterial including the impact of legislation passed after the date of thejudgment under appeal. The rule enunciated by Jessel M.R. wasfollowed with approval by the Privy Council in the Ceylon case ofPonnammah v. ftrumugam 2, where the Board refused to entertain “ anyappeal other than one strictly so-called, in which the question is whetherthe order of the Court from which the appeal is brought is right on thematerials which that Court had before it ” • Tn a more recent judgment,*Lord Wright has observed that the rule in Quilter's case {supra) does not1 {1882) 9 Q. B.D. 872.* {1905) A. C. 383.
20S
GRATIAEN J.—Senanayake v. Navaratne
generally vest even Courts of re-hearing "with power to apply subsequentchanges in the law to issues affecting matters of “ substantive right ”as distinct from mere “ matters of procedure or remedies ”—In re aDebtor x.
It might be asked whether the words “ shall be deemed to have comeinto force on the first day of January 1952 ” and “ shall be deemed for allpurposes on and after that day to have had effect ” in section 5 of the amend-ing Act are sufficiently comprehensive to distinguish the present casefrom those decisions. A complete answer is to be found in Ingle v.Farrard 2, where the House of Lords discussed the implications of identicalwords appearing in a taxing statute. The issue was whether (in viewof the later retroactive enactment) a person could be served with anadditional assessment under section 125 of the Income Tax Act, 1918,of England, on the basis that he had been “ undercharged ” in an earlier(but concluded) assessment.
Lord Cave, Lord Shaw, Lord Sumner and Lord Carson (Lord Atkinsonalone dissenting) decided in the negative. ‘ ‘ Let it be assumed in favourof the Crown,” explained Lord Cave, “ that for all the purposes of theadditional assessment the (subsequent Act) must be applied, and that the(assessee) ought to be and always ought to have been assessed to tax inrespect of the sum mentioned in that assessment ; even then you haveonly got half-way. You have still to consider whether on that footingthere had been an undercharge in the earlier year, and in so doing youmust apply to the assessment of that year the law which obtained whenit was made ”.
Similarly, it seems to me that, even after giving the fullest retros-pective effect to the provisions of the amending Act, we are still hedgedin by the limitations placed by law upon the functions of judges exercisinga “ strictly appellate jurisdiction ”; for in that capacity we are empoweredonly to decide whether the learned election judge’s interpretation ofsection 58 (1) (c) in his determination dated 13th February 1953 wasright or wrong in law at that date. The amendments which were notpassed until 25th April 1953 did not represent the law which the learnedjudge was under a duty to apply at any stage of the election trial.
I accordingly proceed to examine the question whether or not the learnedelection judge was wrong in law in deciding on 13th February 1953 thata “ corrupt intention ” was not an ingredient of the “ corrupt practice ”penalised by section 58 (1) (c).
The Parliamentary Elections Act, 1868, The Ballot Act, 1872 and theCorrupt and Illegal Practices Prevention Act, 1883 of England weremanifestly used as models by the draftsman of the Ceylon (ParliamentaryElections) Order-in-Council, 1946. Any substantial variation therefore,between a provision in the local enactment and the corresponding provi-sion in the English statute in the same context must have been introduceddesignedly.
* (1936) 1 Oh. 237.* (1927) A. O. 417.
GRATIAEN J.—Senanayake v. Navaralne
209
Section 18 of the English Act of 1883 prohibits the “ printing orpublishing etc.” at an election of “ bills, placards, etc.” which do notbear upon the face thereof the names and addresses of the “ printerand publisher ”, and provides as follows :—
“ 18. Every bill, placard or poster, having reference to an electionshall bear upon the face thereof the name and address of the printerand publisher thereof; and any person printing, publishing or posting,or causing to be printed published or posted, any such bill placardor poster as aforesaid, which fails to bear upon the face thereof the nameand address of the printer and publisher, shall, if he is a candidate,or the election agent of the candidate, be guilty of an illegal practice,and if he is not the candidate, or the election agent of a candidate,shall be liable on summary conviction to a fine not exceeding onehundred pounds.”
Section 58 (1) (c) of the local enactment, which, be it noted, had nocounterpart in the earlier. Ceylon (State Council Elections) Order-in-Couneil, 1931, is to the following effect :—
“ Every person who—•
prints, publishes, distributes or posts up, or causes to be printed,published, distributed or posted up any advertisement,handbill, placard or poster which refers to any election andwhich does not bear upon its face the names and addressesof its printer and publisher ….
shall be guilty of a corrupt practice …. ”
It will be at once observed that what in England constitutes only an“ illegal practice ” (against which relief may be, and according toRogers p. 364 “ has invariably been granted ”) was for parliamentaryelections in Ceylon declared to be a “ corrupt practice ”. The com-mission of a “ corrupt practice ” automatically involves in either countrydrastic penalties and disqualifications including a prolonged deprivationof important rights of citizenship.
The learned election judge has construed section 58 (1) (c) as imposingan absolute prohibition irrespective of whether the infringement wasaccompanied by “ a wicked mind ”—so much so that a person who,howsoever uncorruptly, distributes at an election- a perfectly innocuousplacard or pamphlet (but omitting the name and address of its printeror its publisher) must inevitably (-unless he can bring himself within thelimited protection afforded by sections 69 and 72 of the Penal Code) sufferthe same consequences of “ guilt ” as someone who from corrupt motiveshad interfered with the holding of a fair Parliamentary election. If2»*J. N. B. 31310 (11/53)
210
GrRATIAEN J.—Senanayake v. Navaratne
this be the interpretation which inevitably emerges from the words andthe spirit of the Order-in-Council, we must of course reluctantly adoptit, however repugnant the result might be to our own notions of whatis reasonable and just.
The only previous occasion on which it had become directly necessaryfor a judge to construe section 58 (1) (c) in order to decide whether ornot an election should be set asdde, was in Perera v. Jayawardene1. Thesuccessful candidate was admittedly answerable for the distributionby an “ agent ” of a number of election pamphlets each of which boreon its face the name of the “ printer ”, but not of the “ publisherNo corrupt intention on the part of either the candidate or his agentaccompanied the acts complained of, which (so Windham J. was satisfied)had proceeded from their erroneous interpretation of the actual require-ments of the section. Windham J. held that in those circumstancesa contravention of section 58 (1) (c) was not established. He appliedthe analogy of similar rulings of the English Courts which construedthe definition of the “ corrupt practice ” of “ personation ” as involvingby necessary implication the special .mental element of a “ corruptintention ”—The Gloucester Case1 2 3, The Stepney Case3 and The EastKerry Case*. The draftsman of the Ceylon Order-in-Council must beassumed to have been aware of the implications of these authoritativeinterpretations when he took over in sections 54 and 58 (1) (a) of thelocal enactment the same definition of “personation ”as that obtaining inEngland.
According to the ratio decidendi of the English decisions followed withapproval by Windham J., the words “ a corrupt practice means ” or“ shall be a, corrupt practice ” or any similar words are by themselvessufficient to enact that the special mental element of a “ corrupt intention”is an ingredient of any “ corrupt practice ” prohibited by statute inrelation to Parliamentary elections. The principle can be very brieflyexplained. As far as a “ corrupt ” election malpractice is concerned,that very adjective, and the stigma which it conveys, speaks lor itself.In some “ corrupt practices ”, the special mental element is sufficientlyparticularised in the enactment itself; in others, it must be read intothe words of definition by necessary implication.
Mr. Nadesan, in the course of his very able argument, suggested that,if closely examined, these judgments had been misunderstood byWindham J. He pointed out that, according to the classic decisionsin R. v. Prince 5, R. v. Tolson ®, and Bank of New South Wales v. Piper1,penal statutes in England are divided into three distinct categorie :
(1) those in which the definition of an offence specifies (either expresslyor by necessary intendment) a particular mental element asone of its ingredients which the prosecution must establishas part of its case ;
1(1948)N. L. B. 241.4 (1910) 6 O'M. & H. 58.
2(1873) 2O’M. <& H. 59.5 (1875) 2 C. O. R. 154.
3(1886) 4O’M. <b H. 34.6 (1889) 23 Q. B. D. 168.
J (1897) A. G. 383.
GRATIAEN J.—Senanayake v. Navaratne
211
those in which the definition does not specify such a special mental
element, and the context clearly indicates that the words of thestatute are words which absolutely penalise the prohibitedact;
those in which no mental element is specified as an ingredient
of the offence, but the seemingly unqualified words of thestatute should be construed as shifting the burden of proofby requiring the accused person to negative criminal intent.
Mr. Nadesan suggested that the offence of “ personation ” was in truthconstrued by the English Judges as an instance of the third of these cate-gories ; and that in each of the cases quoted by Windham J. the person“ accused ” was exonerated only because he had satisfactorily dischargedthe burden of negativing mens rea. I am quite unable to accept thisargument. In the Stepney case (supra) Denman J. expressly ruled thatpersonation was “ an offence which involves corruptness ” ; that “it isthoroughly understood election law that unless there be corruption and abad mind and intention in personating, it is not an offence ”, and that“ there is to be added to the offence of personation a corrupt intention ”.Similarly, Field J. pointed out that “ corruptness is the essence of thedisqualification under section 36 of the Act of 1883 ”, and he regardedthe inclusion of personation within the category of “ corrupt practices ”as tantamount to the addition of the adverb “ corruptly ” in its definition.This decision was followed with approval by Cave J. and VaughanWilliams J. in the Finsbury case1. Finally, in the East Kerry case (supra),Kenny J. said, “ In all charges of personation, there are two matterswe should be convinced of before reporting : first, that someone noton the register had voted or attempted to vote in the name of a registeredvoter, and secondly, that this was done wilfully and corruptly …. ”
The correctness of these unqualified propositions has never been ques-tioned in England, and it would be very wrong indeed for me to presumeat this stage to place a different interpretation upon identical wordsappearing in an Order-in-Council applicable to Ceylon.
The ruling in Jayaxvardene’s case (supra) possesses the special meritof having reached a just and reasonable conclusion without (as far as Ican judge) violating any recognised rule prescribed for the interpretationof statutory enactments. It is unfortunate, therefore, that the judgmentwas not acknowledged as having finally settled the law—leaving it tothe legislature to change the language of section 58 (1) (c) if it thoughtthat the public interest necessitated a more rigorous interpretation. Weshould not forget that the Parliament of Ceylon has proved very alertin stepping in whenever election judges have pronounced embarrassingrulings which are considered contrary to the assumed intendment of thisparticular Order-in-Council. Observe, for instance, the ParliamentaryElections (Amendment) Act, No. 19 of 1948, which was hurriedly passedto confer retrospectively a right of appeal against an election judge’s
(1892) 4 O'M. & H. 171
212
GRATIAEN J.—Senanayake v. Navaratne
ruling in the Kayts case—JZvlasingham v. Thambiaiah1, and (foi • reasonswhich to to my mind are more ohscure) the amending Act k No. 26of 1953, which came into operation while the present app) eal waspending.
At the general election of 1947, not a single successful candidLate wasunseated for a contravention of section 58 (1) (c) on the basis of a, n inter -pretat'on contrary to that given in Jayawardena’s case (supra..) ; andcandidates at the recent general election could not have been blai^ned forexpecting immunity from charges under that section unless they c ir theiragents were proved to have acted corruptly. I consider, therefo:jre, thatthis was a context which almost clamoured for the application of xphe ruleof stare decisis. Nevertheless, the learned election judge rejected theinterpretation of Windham J. and considered himself free to ^ followcertain obiter dicta of Dias J. in SaravanamvMu v. de Mel2, and ofBasnayake J. in Aluvihare v. Nanayalckara 3.*
In de Mel’s case {supra) one of the grounds for setting asiJle theimpugned election was that various acts of “ personation ” puni?shableunder section 58 (1) (a) had been abetted by the successful cant didateor, in some instances, committed by his agents with bis knowledge andconsent. Dias J. held as a fact that these offences had been committed inpursuance of a conspiracy (to which the candidate was privy) to procurepersonators to vote for him at the election. Upon that findingg, theingredient of a corrupt intention stipulated by the completely relevantEnglish decisions cited by Windham J. was conclusively established,but Dias J., in making a “passing reference” to Jayawardene’s- case(supra),“ doubted ” whether Windham J. had not inadvertently ignoredan earlier authoritative ruling of this Court in Weerakoon v.Ranhamy4.'
In Nanayalckara’s case {supra) the commission of an offence Undersection 58 (1) (c) had been alleged against the successful candidate an d hisagents, but was not established by the evidence. In the circumstances,the issue of corruptness ” did not arise. Nevertheless, Basnayak^e J.also pronounced an obiter dictum expressing the view that Windham ^J.’sruling was in conflict with Weerakoon v. Ranhamy (supra).-
I have searched in vain for some indication that Windham1 J. n^is-
*^ ^ w_y
understood or gave expression to any opinion which came into conf-^ it
with Weerakoon v. Ranhamy (supra). Bertram C.J. had there concet d
in his principal judgment that in Ceylon, as in England, “ where a pa:’ ti-
cular state of mind is a necessary ingredient of a (statutory) offence
the (prosecution) must prove that that state of mind exists ”.(p. 412) ;
he then proceeded to discuss the extent to which the la'k of Ceylon depai-ts .
from the English law relating to an entirely different category of statuto ry
offences—namely, those containing words of “ absolute and unqualified
prohibition …. ” (p. 44). The judgment of Windham J. demons-
{1948) 49 N. L. R. 505.{1948) 49 N. L. R. 529.
(1948) 50 N. L. R. 529.(1921) 23 N. L. R. 33.
GRATTAEN' J.—Senanayake v. Navarcttne
213
trably appreciated this distinction, and it was only upon an analysis of“ the intention of the legislature to he collected from the language of the statuteitself ” that he declared :
“ The legislature could not have intended, in using the languageof section 58 (1) (c), to say that the mere fact of doing a thing of thiskind was a (corrupt practice) which was followed by such seriousconsequences ”.
In other words, he construed the section in relation to its context andaccording to “ the fair, common-sense meaning ” of the language whichwas used.•
The view expressed by Windham J- is supported by the ratio decidendiof the English “ personation ” cases ; and it thereby respects the rulethat a long-established interpretation placed upon an Imperial statuteby the English Courts should be followed in a case where similar wordsare used in a later statute applicable to Ceylon. This doctrine appliesin the Colonies, and we were recently reminded by the Privy Councilthat it should also be observed by “ the Courts of a member of the BritishCommonwealth of Nations ”—Cooray v. The Queen1. Indeed, theprinciple is especially compelling when a Ceylon Court is required toconstrue an enactment which was passed by the Head of the Common-wealth on the advice of the Privy Council. If, therefore, section 58 (1) (a)must be read as importing a “ corrupt intention ” as an essential elementof the “ corrupt practice ”of personation, it is almost facetious to imaginethat the legislature could have intended section 58 (1) (c) to be interpretedas if it read :
“ Every person who, whether or not he had any corrupt intention inso doing, prints, publishes etc. any advertisement etc. which refersto any election and which does not bear upon its face the names of theprinter and publisher, shall be guilty of a corrupt practice, and shall,on conviction by a District Court, be liable to a fine not exceeding Us. 500or to imprisonment of either description for a term not exceeding 6 months ;and shall by conviction become incapable for a period of 7 years of beingregistered as an elector or of voting at any election or of being elected orappointed as a Senator or Member of Parliament ”.
I refuse to believe that the innocent distribution of innocuous electionpamphlets was, by the will of His Majesty in Council in 1946, denouncedin the same manner and to the same extent as prohibited acts corruptlycommitted in order to tamper with the purity of a Parliamentary elec-tion. The sectionJcan reasonably be read, and therefore ought to be read,as involving a corrupt intention—for instance, if a candidate anonymously1distributes pamphlets defamatory of his opponent in order to influencethe minds of voters; or if he resorts to otherwise legitimate but anonymouspropaganda so as to suppress evidence of excessive expenditure inpromoting his election. These examples are not of course exhaustive,
* (,1963) 64 N, H. S, 409 at 416,
214
GR.ATIAEN J.—Senanayake v. Navaratne
It is perfectly true that, in the interests of public safety, health ormorals, behaviour of a certain kind is sometimes prohibited absolutelyby statute “ not for the purpose of punishing the vicious will but inorder to put pressure upon the thoughtless and inefficient to do theirwhole duty ”—Pound : The Spirit of the Common Law p. 52. Butwhy should we suppose that merely technical infringements of the prohi-bition contained in section 58 (l)(c) had been intended to be so sternlysuppressed that an innocent distributor of an election pamphlet exhi-biting only its printer’s name must be deprived of his cherished civicrights even though he meant no harm of any kind ? The exceptionscontained in sections 69 and 72 of the Penal Code would not alwayssuffice to afford a valid defence in such a ease; indeed, they wouldhave been inapplicable in Jayawardene’s case (supra). If the legislatureintends that the Judges should administer laws that are manifestly cruelor absurd, it should clothe its intentions in unambiguous language. Thisenactment is certainly not such an example of wanton legislative cruelty.
Let it even be conceded (although I do not subscribe to the view) thatthe language of section 58 (1) (c) may be regarded by purists as ambiguous.If that be so, the exercise of a judicial choice is immediately invoked.Where there are two permissible constructions, “ the o&e of which woulddo great and unnecessary injustice, and the other of which will avoid thatinjustice, and will keep exactly within the purpose for which the statutewas passed, it is the bounden duty of the Court to adopt the latter con-struction ”—per Lord Cairns in Hill v. East West India Dock Co. 1On this footing, we should follow the admissible construction which is“ fair and reasonable ”, as Windham J. has done, in preference to onewhich produces “ a result which would be repugnant to justice and inmany cases cruel and unreasonable in the extreme ”—per Lord Macnaghtenin Arrow Shipping Co. v. The Tyre Improvement Commissioners2. Thelanguage of section 58 (1) (c), in the context in which it appears, doesnot compel us to assume a legislative decision that the purity of electionsdemands, as the price of its preservation, an unnecessary sacrifice ofpersons who, without corrupt intent, bring themselves within thenarrower construction. “ The dictates of legal reasonableness ” permitus to adopt in Ceylon, as in other countries, the civilised rule that theCourts should not be “ too acute ” to find that a wicked mind is not aconstituent element of an election malpractice pronounced by statuteto be “ corrupt ”.
As in the Tfrnglish Acts, our Order-in-Council prescribes appropriatesanctions in order to ensure that the Parliamentary elections should befree from taint. With that object, it declares that persons who resortto techniques of a vicious character (such as “ bribery ”) shall be guiltyof “ corrupt practices ”, which, because of their wickedness, cannot betolerated and against which no relief can generally be granted. Suchbehaviour, is branded as. “ corrupt ” because it is “ done with an evilmind, with the knowledge that it is wrong, and with evil feelings and evilintention ”<—The Bedford Case (No. 2)3. In addition, the Order-in-1 (1884) 9 A. O. 446.3 (1894) A. C. 608.
» 1 O’M. & H. 76.
GRATIAEN J.—Senanayake v. Na-jarat~h&
215
Council prescribes a lesser category of prohibited acts declared to be“ illegal practices ” not necessarily involving mens rea but in respectof which, for that very reason, statutory relief and various groundsof exoneration are available to those who commit them inadvertentlyor under other mitigating circumstances. The decision of Parliamentto include acts of the kind specified in section 58 (1) (c) within the groupof graver malpractices declared specifically to be “ corrupt ” carriedwith it the necessary implication that a corrupt mental element is to beread into their definition. The ruling of Windham J. in Jayawardene’scase (supra) should not be disturbed because the suggested alternativeinterpretation is “ contrary to every idea of justice or even commonfairness ”—Reynolds v. Austin & Sons Ltd.1. If one signpost pointsthe way to a sensible interpretation and another signpost would leadus to a nonsensical result, the choise of route is obvious.
I have already expressed the opinion that the allegation under section58 (1) (c) should be decided in accordance with the law as it stood beforethe amending Act No. 26 of 1953 came into operation. In the absence,therefore, of a decision by the election judge that the acts complainedof were committed corruptly, it follows that this charge fails, and wemust determine accordingly as a matter of law for the purpose of thepresent appeal.
I have resisted the temptation to indulge in an obiter dictum as towhether, in pending or in future litigation where breaches of section58 (1) (c) are alleged, a corrupt motive must still be regarded as aningredient of this particular corrupt practice. It would take a gooddeal, however, to convince me that the subsequent introduction of aproviso can have the effect of altering fundamentally the original meaningof the unamended words of a substantive section. But it is sufficient,for the purposes of the present appeal, to hold that section 58(1) (c) didrequire, at the time of the proceedings before the election judge,proof of a corrupt intention against an alleged offender. The languageof the amending Act does not unequivocally deprive a “ convicted ”person of his accrued right to challenge the validity of his “ conviction ”at the time when it was entered against him. There is a strong presump-tion in all civilised countries against an intention on the part of thelegislature to enact ex post facto criminal law's, and that presumptionhas not been rebutted by express words appearing in this amendingAct. For the reasons which I have given, I would reverse that part ofthe learned election judge’s determination which concerns the allegation .that the appellant committed- a corrupt practice within .the meaningof section 58 (1) (c).-.
® . ’
• I shall now examine the decision that the election was void because/upon the facte as held by the learned judge, the appellant had on 27thJune 1952 “ knowingly made the declaration as to his election expensesrequired by section 70 of the Order-in-Council falsely ”, and therebycommitted a corrupt practice under section 58 (1) (/).'. '
{1951) 2 K. S. 135 at 144.
216
GRATIAEN J.—Senanayake v. Navaratne
This determination has been challenged on two grounds :
that there was no evidence to support the finding that the appellant
had committed the corrupt pactice in question ;
that in any event the learned election judge had no jurisdiction
to unseat the appellant for the alleged breach of section 58 (1) (/).
I have considered with care the arguments addressed to us by Mr. H. V.Perera on the first of these objections. The evidence is no doubt circum-stantial in character, but in my opinion, the strictly appellate functionsof this Court would make it impossible for us to hold, as a matter oflaw, that the learned election judge’s decision on the facts ought to bedisturbed—provided of course that he had jurisdiction to adjudicateupon this charge.
The second ground of objection has caused me considerable difficulty,but I am now completely satisfied that the Order-in-Council makes noprovision for the unseating of a successful candidate by an electionjudge on the ground that a corrupt practice under section 58 (1) (/) hadbeen committed after the expiry of 21 days from the datg of publication ofthe result of the election in the Government Gazette..
My decision is based on my interpretation of the enactment, and noton my conception of what the election laws of this country ought to be.If the contrary interpretation suggested by Mr. Nadesan had been intendedby the legislature, there was really no need to have resorted to suchavoidable obscurity in giving expression to an idea capable of beingconveyed in very simple language.
The powers of election judges depend exclusively upon the terms ofthe Order-in-Council which is the foundation of their jurisdiction, and“ we are not to invent new principles or new procedure for the purposeof administering (it) ”.—per Wfiles J. in Stevens v. Tillet1. An electioncannot, therefore, be declared void by an election judge inCeylon unless inter alia (1) an election petition had been duly presented(or amended) within the period of time sanctioned by one or other of theprovisions of section 83 ; and (2) the particular ground upon which theelection had been challenged is of a kind specified by section 77.
Let me recount the relevant history of this litigation. After a contestedelection held on 24th May 1952, the appellant was declared to be thesuccessful candidate, and the Returning Officer made a return to thateffect which was published in a Gazette Notification dated 28th May
(sec. 50). On 16th June 1952, i.e., within the 21 days sanctionedby section 83 (1), the respondents to this appeal presented a petitionchallenging the election on various grounds, and the jurisdiction of thelearned election judge to investigate those allegations was beyond dispute.On.27th June 1952—i.e., 11 days after the original petition had beenentertainfed, the respondent, who was his own election agent, forwardedto the returning officer a return and declaration of his election expenses(section 70) ; and on 11th July 1952 a notice to that effect was duly
1 (1870) L. B. 6 O. P. 147,
GRATIAEN J.—Senanayake v. Navaratne
217
published in the Government Gazette (sec. 71). The respondents thenapplied on 21th July 1952 for leave to amend their original petitionunder section 83 (2) by including, as an additional ground for challengingthe electiop, an allegation that the appellant had also committed acorrupt practice punishable under section 58 (1) (/).
The interlocutory application to amend came up before me on 25thJuly 1952, and the respondents relied on proviso (a) to section S3 (!) insupport of their claim to add this charge against the appellant. Iallowed the application but granted liberty to the appellant, if so advised,to move to have my order vacated at a later date. If there was nojustification to allow this amendment, it follows that the learned electionjudge had himself no jurisdiction to set aside the election on the addi-tional ground relied on. A fundamental objection to jurisdiction may(as has arisen in this case) be entertained for the first time in appeal,provided of course that the plea does not depend on uninvestigatedissues of fact—Norwich Gorpn. v. Norwich Electric Tramways Co A
Mr. H. V. Perera’s arguments may briefly be summarised as follows :
that although the commission of a corrupt practice within the
meaning of section 58 (1) (/) can properly be the subject of aprosecution in a District Court with the sanction of the Attorney-General, it does not afford a ground for directly setting asidean election under section 77 ;
that section 83 (1) proviso (a) applies only to corrupt practices
previously committed but implemented subsequently by a paymentof money or by the doing of some similar act; and that the provisohas no application to corrupt practices committed exclusivelyafter the closing of the poll.
The second argument is in a sense complementary to the first. Itprimarily involves an objection that the amendment of the respondents’original petition was out of time ; it also seeks to emphasise the' sub-mission that the general scheme of the Order-in-Council with respectto proceedings before election judges does not contemplate the investiga-tion of charges that an election (not proved to have been tainted bycorruption or illegality at the time that it was held) was liable to bedeclared void by reason of the subsequent commission of corrupt practicesprohibited by the enactment. Por any such offence, Mr. Perera submits,the only sanctions are criminal prosecutions and the appropriate dis-qualifications resulting from conviction. In other words, the properfunction of an'’election judge 0unless his jurisdiction in awy particularcontort is expressly eriUwged) is to determine whether or not the actualelection was tainted in some way before the closing of the pollthejurisdiction of the criminal Courts, on the other hand, is to punish personswho commit election offences at any time. The distinction, if justifiedby the words Of the enactment, is certainly not illogical,
* {1906) 2 K. P. 119,
218
GRATIAEN J.—Senanayake v. Navaratne
The Order-in-Council has admittedly heen modelled on enactmentspassed in England, and the history of legislation relating to Parliamentaryelections in that conntry is of some assistance to ns in solving the presentdifficulty. In the background of all the relevant statutes is the intentionto ensure as far as possible the freedom of the vote, and to punish ingreater or less degree any subversive malpractices committed in connec-tion with the promotion of election campaigns. The common lawoffences of bribery and corrupt treating, for instance, were subsequentlydefined and prohibited by statute. As evidence of new techniquesemerged from time to time, fresh legislation was introduced to suppressthe new mischief. The House of Commons originally exercised itsown peculiar jurisdiction in matters relating to its constitution, andtook cognisance of bribery and cognate offences committed at elections ;but the jurisdiction was later transferred to the regular Courts of Justice.At the same time it was recognised that, apart from private considerations,the public interest required some reasonable time limit to be placedon a person’s right to challenge (before an election judge) the validityof a seat in Parliament.
The Parliamentary Elections Act, 1868, of England is an importantlandmark in the history of the legislation under consideration. Section3 defined “ corrupt practices ” as at that time meaning bribery, treating,undue influence, or any such offences as were defined by statute or“ recognised by the common law of Parliament ”. (It will be observedthat the concepts of “ illegal practices ” and the introduction of thecorrupt practice of “ making false declarations of election expenses ”were of later origin).
Section 6 (2) prescribes as follows with regard to the period withinwhich a petition may be filed to challenge the election or return of aMember of Parliament:
“ The petition shall be presented within twenty-one days afterthe return has been made to the Clerk of the Crown in Chancery in
Englandof the member to whose election the petition
relates, unless it question the return or election upon an allegationof corrupt practices, and specifically alleges a payment of money orother reward to have been made by any member, or on his account, orwith his privity, since the time of such return, in pursuante or infurtherance of such corrupt practices, in which case the petition may bepresented at any time within twenty-eight days after the date of suchpayment”.
. The language of this section has been substantially taken over in theideal' Order-in-Council—vide section 83 (1) and proviso (a)—-^exceptthat the. word “ acts ” (which is of wider import) has replaced' the.’word “ reward …'..
Under-the Act of 1868, a petition to have a successful candidateunseated must ndrmally,- as in Ceylon, be presented within 21 days ofthe official notification of the result of the election. This time limitwas, however, extended in cases where corrupt practices were alleged
GRATIAEX J.—Senanayalce v. Navaratne
219
to have been committed “ at the election ”—section 11 (14)—but where a“ payment ot; reward ” was subsequently made “ in pursuance or infurtherance of” them; in that event, a petition may, within 28 daysof the specified payment or reward, be presented (or, if previously presen-ted, amended) so as to catch up charges involving the corrupt *practicesso “ pursued ” or “ furthered
The decision of this appeal ultimately depends upon the true meaningof the words “ in pursuance or in furtherance of ” appearing in proviso(a) of section 83 (1) of our Order-in-Council, and upon whether thesewords may legitimately be applied to a “ false declaration of electionexpenses ”—that is to say, a corrupt practice (complete in itself) whichfrom its very nature is exclusively committed after an election has beenconcluded. It is very important to ascertain the precise meaningattaching to this phrase in the context in which it first appeared in anelection statute.
At the time when section 6 (2) of the Act of 1868 was first enacted,the only recognised corrupt practices “ in pursuance or in furtheranceof” which “ payments ” or cf rewards ” could be made after an electionwere bribery and treating. Indeed the language of section 6 (2) wasretained in England until 1949, and was eventually taken over (withoutalteration) in the recently enacted Representation of the People Act,1949.
The definition of either offence specifically includes a payment or rewardcorruptly made to a voter in certain circumstances “ for having voted ”.What precisely are those circumstances ? Let us first consider thecorrupt practice of “ post-election treating ”, because all the Englishauthorities in regard to that offence point in the same direction.
In the Southampton case1, Willes J. said, “ what is done after the electioncan only be material as throwing light upon some transaction beforethe election, and so leading to the supposition that there was before theelection some breach of section 5 of the Corrupt Practices Act of 1854 ”.Similarly, in the Brecon case 2, Lush J. said, “ The treating which theAct calls ‘ corrupt ’ as regards a bygone election must be connectedwith something which preceded the election ; it must be the complementof something done or existing before and calculated to influence the voterwhile the vote was in his power ”. In other words, there must exist thevital, connection between the subsequent hospitality and the sinister“ something ” that had previously contaminated the voters.
In the Cork case 3 Gibson J. dealt with a case of post-election treatingwhich was “ largely the system and arrangement ”. He ruled that theessence of the corrupt practice of treating after an. election was that ittook place “ in pursuance of an understanding or expectation encouragedbeforehand' ” or, he added ‘^by'vodfl of reward ’V These last words couldnot have -been intended to include a spontaneous reward given to a voter“ *
1 11869) 1 O'M. & B. 222 at 223.2 {1871) 2 O'M. <b H. 43 at 45.
» {1911) 6 O'M. & H. 318 at 335.
220
GORATIAEN J,—Senanayake v. Navaratne
who had not been influenced improperly at the time that he actuallycast his vote. ITor, as Lush J. pointed out in the Brecon, case (supra),such rewards do not “ reflect back and taint the bygone election ”—although,if intended to secure the voter’s support on future occasions, they maycertainly*" imperil a future election which they were designed to influence”.There is no indication that Gibson J. was disposed, or had any occasionto doubt the correctness of this long-established principle.
We are now in a position to appreciate the meaning of section 6 (2)of the Act of 1868 in so far as it sanctions an extended time-limit forfiling petitions alleging that subsequent payments or rewards had beenmade “ in pursuance or in furtherance of ” the corrupt practice of ■“ treating ”. Those words obviously do not refer to post-election treatingunconnected with some previously corrupt transaction which had takenplace ‘‘ while the vote was in the voter’s power ”—because such treating,not being the complement of something that had gone before, is notregarded as a corrupt practice at all in relation to the bygone election.On the contrary, this part of section 6 (2) only catches up cases whereit is sought to establish that an election had been tainted, and wastherefore void, because—
tP
voters had, before they cast their votes, been corruptly influenced
by promises (or by calculated encouragement) that they wouldlater receive hospitality for having voted in a particular way ;
this express ot implied promise, which had itself constituted ab
initio a corrupt practice, was subsequently implemented bythe actual receipt of the promised (or expected) hospitality.
In such a-case, the proof of item (2) generally supplies the most compellingproof of item (1), and it is the corrupt practice established by item (1)which vitiated the bygone election.
In most cases, the “ payment or reward ” which “ furthered ” theearlier corrupt practice would no doubt involve the commission of anadditional offence complementary to the earlier one. But even then,it is the earlier offence which forms the basis of the attack on the impugnedelection. There may be instances, however, where the subsequent“ payment or reward ” may “ further ” a corrupt practice withoutitself amounting to a distinct offence. Such a situation arose in theKidderminster case 1 where the facts were as follows :—
The petitioner alleged and proved (1) that the successful candidatehad committed the corrupt practices of treating “ by corruptly makingdivers promises (during the election) of meat and drink, provisionand other reward in order to induce voters to Vote and to refrain from' voting ; and (2) that (after the election) he had made a payment of£1000 to his agent ‘ in pursuance and furtherance of the said corruptpractice ,c”.
(1874) 2 O’M. & H. 170.
GRATIA EN J.—Senanayake v. Navaratne
221
The petition was presented within 28 days of the date of the paymentabove referred,to, and the relevant provision of section 6 (2) was accord-ingly invoked. This payment had been made by the successful candi-date to one of his agents with specific instructions to implement the pre-election promise, but the instructions were later withdrawn on legaladvice. In the result, the promised hospitality did not take place.
Mellor J. declared the election void because “ the (pre-election) promiseamounted to a corrupt practice …. It was partially carried outand stopped in medio ; but the £ 1000 which was sent (to the agent)was, strictly speaking, a sum of money paid in furtherance and in pursuanceof the corrupt contract or promise which the (candidate) had made ”. Hepointed out that the eventual abandonment of the scheme could not inthese circumstances “ purge what had been done before ”.
This decision perfectly illustrates to my mind the true meaning (in thecontext of election laws) of the phrase “ in pursuance and in furtheranceof”.
With regard to the corrupt practice of “post-election bribery ”, theEnglish statutes,® like the local Order-in-Council, include within thedefinition of that offence a corrupt payment to a voter “ on account ofhis having voted ”. In the Stroud case 1, Baron Bramwell pointed outthat bribery must be “ operative on the election ”, and in the Salisburycase 2 Baron Pollock also held that a subsequent payment to a voter,“ unless connected with some earlier communication which would lead tothe inference that it was bribery ” could not avoid an election.
I agree that Lush J. appears, shortly before the decision in the Salisburycase (supra), to have expressed the opinion that “ post-election bribery ”stood on a different footing in this respect to post-election treating—The Harwich case 3.“ The payment of money as a reward for having
voted”, he said, “ is corrupt in itself; it tends to be demoralising in itsinfluence on all the parties concerned. These observations, be it noted,did not refer to the case of the successful candidate (who had been acquit-ted of all the allegations against his election) but were made in referenceto recriminatory charges against the unsuccessful candidate who hadprayed the seat. The Harwich case is more fully reported in 44 LawTimes 187, where it appears from Lush J.’s recorded findings of fact thatcertain payments had been made to voters “ as a reward for having comeat the request of the candidate's agent, to give their votes for him ….and the voters no doubt expected to be paid for coming ”. Manisty J., inhis concurring judgment, explained that the mere payment by a candidateafter an election to an absent voter who had come of his own accord wouldnot constitute the corrupt practice of bribery but only an illegal payment.“ There must be something plus the mere payment ”, he said, “ to make it acorrupt payment, and consequently bribery ”.
1 (1874) 2 OM. & B. 181 at 183.2 (1880) 3 OM. & H. 130.
(1880) 3 OM. <Sb B. 61 at 70.
222
GRATIAE3ST J.—SenanayaJce v. Navaratne
Even if one concedes that Lush J. had taken a view as to “ post-electionbribery ” which was contrary to the earlier decisions, we have not beenreferred to any decided case in which his opinion was adopted subsequent-ly. On the contrary, in Caldicott v. Worcester Commissioners 1, BinghamJ. re-affirmed the earlier principle, and ruled that, to support a chargeof bribery in reference to a bygone election, it was necessary to havesome evidence connecting the subsequent payments with somethingdone before the election, because “ one could not procure a vote for apast election by something which was complete and done only after theelection ”. In the most recent edition of Russell on Crime (1950 Ed.)the following passage appears at page 434 :
“ It seems that a payment of money to a voter after the electionis over is not bribery unless there was a corrupt promise before the electionto pay him. ”
Our combined researches have not brought to light a single instance ofan election which was declared void in England on the ground of sub-sequent bribery unconnected with an antecedent promise (or expectationinfluenced by prior encouragement). In any event,, Lush J'. had nooccasion, in dealing with a recriminatory charge, to construe the words“ in pursuance or in furtherance of corrupt practices ” appearing in section6 (2) of the Act of 1868.
In the Bodmin case 2 Lawrence J. said “ In cases of bribery there isalways something in the nature of a contract: ‘ If you give me a sovereign,I will give you a vote ’ or some such understanding …. ”
In other words, the offence necessarily involves some conduct whichtainted the vote before it was given—and the offence (although at thatstage difficult to prove) is then complete even though the corrupt arrange-ment still await implementation by payment. The opinions in Cooperv. Slade 3 are specially instructive. If a person promises to make apayment to a voter as an inducement to vote in a particular way, he isguilty of bribery because he “ created that inducement ”. If he subsequent-ly makes a payment “ pursuant to ” the promise previously made asa reward for the “ advantage which the statute means he should notobtain ”, the payment is equally corrupt. In such cases, the^ offenceintroduces the concept of a scheme whose complete execution might wellbe spread out over a period of time. I am satisfied, therefore, that theessence of “ post-election bribery ” is that the payment was made inexchange for a contemplated advantage previously induced.
The words of section 6 (2) which correspond to proviso (a) of section83 (1) of the local Order-in-Council have ever since 18Q8 retained a clear-cut meaning in the lexicon of election law in England, and the intentionof the legislature is not difficult to discern. After the closing of the. poll,evidence of “ payments ” or “ rewards ” often reveals for the first tune
1 (1907) 21 Cox 404.2 (1906) 5 O'M. & H. 225 at 231.
(1857) 6 S. L. C. 746.
GRATIAJD2ST J.—Senanayake v. Itfavaratne
223
the sinister character of secret “ arrangements ” which, at the time oftheir conception, had “ operated on the election The subsequentpayments or rewards, having been made “ in pursuance or in furtheranceof ” the earlier corrupt transactions, represent the implementation oradvancemen of the earlier plan or scheme. The detection of suchschemes almost invariably requires more time than in cases of opencorruption. Section 6 (2) of the English Act, and the correspondingproviso of the Ceylon Order-in-Council, therefore provide a longer periodwithin which an election petition may be presented on the basis of suchallegations.
The substitution of the word “ act ” for “ reward ” in proviso (a) ofsection 83 (1) of the Order-in-Council certainly enlarges the ambit of theproviso, which thus becomes equally applicable, for instance, to subse-quent acts done in furtherance of pre-election threats constituting thecorrupt practice of undue influence. But the substitution cannot alterthe meaning of the unamended phrase “ in pursuance or in furtheranceof ”. Indeed, the proviso is essentially procedural in character ; itdoes not purport to influence the substantive law relating to corruptelection practices.
The offence of “ "knowingly making a declaration of expenses falsely ”was of later origin in England. It was “ deemed to be ” a corrupt practiceby section 33 (7) of the Corrupt and Illegal Piactices Prevention Act 1883.By its very nature, it is essentially a post-election offence, and the words“ deemed to be ” emphasised that it stood in a different category to whatmay be described as “ corrupt practices proper ” which had in fact corruptlyinfluenced the minds of voters before they cast their votes.
The commission of this new offence has undoubtedly been a groundfor setting aside an election in England ever since the Act of 1883 waspassed, and there is good reason why this should be so ; because thedishonesty involved in its commission affords most powerful evidenceof undetected offences (difficult to particularise) which had previouslycontaminated the electorate. Accordingly, a special procedure, whichdid not exist in the earlier framework, was introduced so as to enable suchcharges to be investigated at election trials. Candidates seldom, if ever,forward their “ returns of expenses ” within the period of 21 days nor-mally prescribed for the filing of election petitions, and the extension oftime granted in eases falling within the later portion of section 6 (2)of the Act of 1868 had no application to such a case. Accordingly,section 40 of the Act of 1883, which also introduced for the first time thecategory of election offences designated “ illegal practices ”, providesthat petitions based on such charges may be filed :
{a) “ At any timq, before the expiration of fourteen days after the dayon which the returning officer receives the return and declara-tions respecting election expenses by the member to whoseelection the petition relates and his election agent. ”
“If the election petition specifically alleges a payment Qf money,or some other act to have been made or done since the said dayby the member or an agent of the member, or with the privity
224
CtRATIAEN J.—Senanayake v. Navaratne
of the member or his election agent in pursuance or in furtheranceof the illegal practice alleged in the petition, the petition may bepresented at any time -within twenty-eight days after the dateof such payment or other act. ”
“ This section shall apply in the case of an offence relating to thereturn and declarations respecting election expenses in likemanner as if it were an illegal practice, and also shall applynotwithstanding that the act constituting the alleged illegalpractice amounted to a corrupt practice. ”
One immediately observes the manner in which special provision ismade for challenging an election within an extended period of time,on the ground of this new post-election “ corrupt practice ” : it wasequated for procedural purposes to an illegal practice. By virtue ofSection 40 (3), the entire scheme becomes demonstrably complete. Asfar as I had been able to trace the English authorities, every electionpetition challenging an election upon an allegation pf this offence hasbeen presented under Section 40 (3) read with section 40 (1) (a).
Let us examine by way of contrast the corresponding proceduralprovisions of the Ceylon Order -in-Council:—
Section 83 (1) (b)' (i) corresponds precisely to section 40 (1) (a)
of the English Act.
Section 83 (1) (b) (ii) corresponds precisely to section 40 (1) (6) of
the English Act.
Section 40 (3) of the English Act has no counterpart in the Order-in-
Council.
We are thus confronted with a clear illustration of “ scissors andpaste legislation ” in which, designedly or otherwise, a special provisionfor the inclusion of charges relating to an exclusively post-election “ cor-rupt practice ” has been left out. If the omission was deliberate, itindicates that charges undeT section 58 (1) (/) were intended to be initiatedonly by way of criminal prosecution unless such offences were committedwithin the 21 days limit prescribed by Section 83 ^1) ; even if (which Idare not assume) it was accidental, the same result follows, becausejudges are powerless to fill in the gaps in legislative enactments by invent-ing fundamentally new procedures.
Mr. Perera has also relied on the significance of section 77 (c), by whichthe election of a “ candidate ” as a Member may be declared void on
GRATIAEN J.—Sena'iayake v. Navaratne225
the ground of corrupt practices only if they were “ committed in connec-tion with the election ”. He argued that those latter words necessarilyexclude transactions exclusively initiated and executed after the electionwas over. That refined distinction does not convince me, but I am moredisturbed b T the circumstance that the Order-in-Council defines a“ candidate” as meaning, “ unless the context otherwise requires ”,a person who “ is nominated as a candidate at an election or is declaredby himself to be or acts as a candidate for election ” (sec. 3)—whereasin England the term is defined so as also to include “ any person elected toserve in Parliament ”. This variation from the English model cannotproperly be assumed to have been unintentional.
But let us assume that post-election corrupt practices punishable undersection 58 (1) (/) are ( as I believe) “ committed in connection with theelection ” within the meaning of section 77 (c) ; let us also assume thatthe context of section 77 (c) “ requires ” the word “ candidate ” to begiven a meaning wider than that which it has primarily received in theinterpretation clause of the enactment. Even then, section 83 (1) wouldonly permit the inclusion of such an allegation in an election petitionin those very rare cases in which a successful candidate makes his “ declara-tion of expenses ” voider section 70 “ within 21 days of the publication of theresult of the election ”. If, instead, he postpones the making of his declara-tion until a later permissible date, the language of the proviso {a) tosection 83 (1) is inadequate because it cannot apply at all to chargesunder section 58 (1) {/). In the result, the successful candidate’s seatin Parliament is safe unless the same result can be achieved by virtue of thedisqualification proceeding from his conviction for that offence—section58 (2).
As against this view Mr. Nadesan relies strongly on the ruling inKunasing ham v. Ponnambalam 1 which was followed with approval inChelvanayakam v. Natesan 2. It was decided in both these cases that thelanguage of proviso (a) to section 83 (1) is wide enough to cover a chargeunder section 58 (1) (/) because “ the act …. to be specificallyalleged may be an act that is involved in the corrupt practice itselfand need not be a separate and distinct act …. Even otherwise,the filing of the return and declarations was a separate act done in pursuanceor in furtherance of the corrupt practice of making false declarations .
J*
Having had the advantage of much fuller argument upon this questionthan my brothers Gunasekara J. and Swan J. had on the interlocutoryapplications which came before them, I respectfully disagree with thisproposition. An act may be done “ in pursuance of ” an executorycontract or agreement; it may also be done “ in .furtherance of ” ascheme or plan which (though it involves even in its inchoate form thecommission of an election offence) nevertheless requires (as a scheme)further implementation to achieve complete fulfilment. But, withrespect, I do not see how an act can “further” something which, regardedas an “ offence'” already completely committed, needs nothing more to* {1952) 64 N. L. R. 26..s (.1952) 54 ^r, £. jj, 304.
2i 6
GRATtA'EN J.—Senanayalce v. Xfavaratne
further its execution. A. fortiori, we would be straining unduly themeaning of a phrase (which has long since acquired a well-recognisedmeaning in the language of election laws) if we i egard the return of electionexpenses as having taken place “ in pursuance or in furtherance of ”the act or acts involved in making a false declaration before a oerson autho-rised to administer an oath or an affirmation. I did not understandMr. Nadesan to press this part of his argument very strenuously.
I appreciate that, in the English language, the phrase “ in furtheranceof ” may “ apply equally to mean the advancement of things before theycome into existence and after they have begun ”. JR. v. Tearse L But,as Wrottesley J. pointed out, the meaning of a phrase, in a particularstatutory context, may be controlled by its “ history ”. The Court ofCriminal Appeal in England accordingly decided that, in legal enactmentsrelating to trade disputes, the words “ acts in furtherance of a strike ”presuppose the existence of a strike. For precisely the same reason,I would say that the language of Section 83 (1) (a) presupposes the priorcommission of a corrupt practice which was intended to be advancedor further implemented by a later “ payment ” or “ act ”. In any event,it is manifest to my mind that the words cannot be applied to an “ act ”which is identifiable with the offence itself (whether (already committedor not). If that had been the intention of the Legislature, I see noreason at all why the proviso should not have been enacted so as to read :
Provided that—.
an election petition questioning the return on election or returnupon the ground of a corrupt practice alleged to have been com-mitted after the date of such return or election by the memberwhose election is questioned or by an agent of the member orwith the privity of the member or his election agent may, sofar as respects such corrupt practice, be presented at any timewithin 28 days after the date of the commission of such corruptpractice.
The complicated concept of an act which is done in pursuance or cn further-ance of itself (or of something that at least includes itself) introduces problemsto which I have tried in vain to accommodate my mind. I
I agree that an election may in certain circumstances be declared voidon the ground that some prohibited act was committed after the dateof the election. As Gunasekara J. points out in Ponnambalam's case(supra), the combined effect of Sections 59 (4) and 77 (d) might wellinvalidate an election if a disqualified person should be engaged as theelection agent of the successful candidates “ after the election”. Buthere again, it will be observed, the procedural machinery of the Order-in-Council does not provide for every such contingency. Let us consider,
(1945) K.B.l.
GRATIAEN J.—Senanayake v. Navaratne
227
for instance, the appointment of a disqualified election agent 22 days afterthe result of the election has been gazetted. In that event, it would bejust too late to present a petition under Section 83 (1) ; nor would anyof the provisos be applicable, because the Order-in-Council has notdeclared win t is prohibited by Section 59 (i) to be either a “ corrupt ”or an “ illegal ” practice. And yet, this hypothetical situation iscertainly not beyond the realms of possibility, because the services ofan election agent may still be required to perform various functionsallocated to him by law after the expiry of the time limit prescribed bySection 83 (1), e.g. the obligations laid down in Section 70. It is thereforequite wrong to assume that the machinery of the Order-in-Council isdevoid of gaps. The remedy lies with the Legislature and not with us.
Mr. Nadesan has submitted that certain observations made by LordColeridge C. J. in Maude v. Lowley 1 and by Lord Halsbury in Gremerv. Lowles2 support the case of the respondents. Maude v. Lowley(supra) was concerned with an election petition presented underthe Corrupt Practices (Municipal Elections) Act 1872 which containsprovisions similar to those prescribed in Section 83 of our Order-in-Council. The petitioner sought, after the 21 days limit had expired,to amend his petition by adding an allegation of a distinct offence whichhad been committed before the date of the election. The Court heldthat there was no jurisdiction to allow the proposed amendment. Inthe course of his judgment Lord Coleridge incidentally said :—
“ The enactment is distinct, and the petition must be presentedwithin 21 days, except in the one specified case of an offence, notdiscovered since the election but which has taken place since theelection ; and in such case the petition may be presented at any timenot after the discovery of the offence, but after the taking place,of that which constitutes the offence.”
Similarly, Keating J. said that the section of the English Act corre-sponding to section 83 (1) proviso (a) provided1 for “the excepted ease ofbribery since the election ”. The judgments also appear in 43 L. J. G. P.105 where the observations of Lord Coleridge (as I have reported) areless capable of supporting Mr. Nadesan’s argument. Be that as it may,
I cannot imagine that the dicta quoted by me were intended to implythat “ bribery since the election ” could vitiate a bygone election unless .it was the complement of something which had previously influencedthe minds of voters.
In Gremer v. Lowl&s (supra), the Court rules that, where a Parliamentaryelection petition alleging bribery, treating and undue influence hadnot been amended within the prescribed time limited for amendment,the petitioner could not be permitted to tender evidence of an illegalpractice committed after the date of the petition. Lord Halsbury decidedthat it was *‘ monstrous to suggest that on an unamended petition
(1874) L. R. 9 C. P. 165 at 173,
(1896) 1 Q, B, 504507.
228
GRATIAEN J.—-Senanayake v. Navaratne
brought in August evidence could be given of matters which occurredseveral months afterwards He then proceeded to make the followingobservations :—
“ It is said that the result of our decision is that offences committedsubsequently to the presentation of the petition will escape withoutpunishment, but this is incorrect. Any such offence may, under 46and 47 Viet. c. 51. s. 40 be the subject of a charge against a member,which may be brought either by amendment of the petition withinthe time limited for amendment, or by a petition filed within theprescribed time after the offence was committed: if, for example, apetition was presented in August, and the respondent committed anillegal practice by payment of money in October, the petition couldbe amended and proceeded with.”
Here again, this part of the judgment is somewhat differently wordedin 65 L.J.Q.B. at p. 291 :
“ Then it is said that, if that be so, the alleged offences may goaltogether unpunished. But this is not necessarily so, because anamendment might be made within the proper limit of time, or a newpetition may be brought.”
4>
Assuming that the earlier report is more authentic, it is quite unsafeto regard these dicta as purporting authoritatively to interpret the words“ in pursuance or in furtherance of ” in relation to a corrupt practiceunder section 6 (2) of the Act of 1868 or in relation to an illegal practiceunder section 40 (1) (6) of the Act of 1883. The evidence expresslyrejected by the Court in Cremer v. Lowles involved an allegation of“ illegal practices respecting the return and declaration of election ex-penses ” for which section 40 (1) (a) and 40 (3) of the 1883 Act introducea special procedure which the petitioner had not invoked within theperiod specified. In regard to a further allegation, however, as to “ theprocuring of prohibited persons to vote, and providing money forprohibited payments ” the Court of Appeal made no order, but sent thecase back for Lawrence J. to decide in chambers after hearing furtherargument.1 It is in regard to the latter kind of charge that a consideredjudgment would have assisted us, because that allegation necessarilyimplied that “ the procuring of prohibited persons to vote ” had takenplace before the election. If, therefore, the “ prohibited payments ”were allegedly made after the election “in furtherance o'f ” the earlieroffence, I do not doubt that an application to amend the petition withinthe prescribed time would have been allowed under either section 6 (2)of the Act of 1868 or section 40 (1) (6) of the Act of 1883.
Having considered all the arguments raised and all the authoritiescited before us by learned counsel (for whose invaluable assistance weare very much indebted) I have arrived, though not without regret,at the following conclusions :
.*9
A. the words “ in pursuance or in furtherance of such corrupt practiceappearing in section 83 (I) proviso (a) do not possess a meaningwhich permits of their legitimate application to a payment
1 (1896) 1 Q. B. at 505 footnote 1 and 65 L. j. Q. B. at 290.
GRATIAEN J.—Senanayake v. Navaratne
229
or act unconnected with a corrupt practice previously com-mitted ; according to the true meaning of those words, theproviso applies only to some payment or act which is allegedto have subsequently implemented a corrupt practice com-mit .ed before the election with a view to influencing improperlythe mind of a voter ;
an allegation that a corrupt practice has been committed in con-travention of section 58 (1) (/) is not under any circumstancescovered by section 83 (1) (a).
In the result, the amendment dated 25th July 1952 of the respondents’original petition dated 16th June 1952 was made out of time, and I amtherefore compelled to admit that I had no jurisdiction, even provision-ally, to allow that amendment. Accordingly, the learned election judgehad himself no jurisdiction to unseat the appellant upon the basis ofthat allegation. If, as the learned judge has held, the appellant did infact commit a corrupt practice on 27th June 1952 punishable undersection 58 (1) (/), the only remedy open to the respondents was (andstill is) to institute a prosecution against the appellant after havingfirst obtained the sanction of the Attorney-General under section 58 (3).It is because this remedy is still available that I consider it imprudentto cause any possible embarrassment by analysing in detail the evidencewhich Mr. Nadesan submitted to be conclusive proof of the appellant’sguilt (but which Mr. Perera on the other hand contended to beinconclusive).
I do not accept without qualification the argument of Mr. H. V. Pererathat a corrupt practice exclusively conceived and consummated afterthe date of an election can never form the basis of an election petition.This proposition is, in my opinion, perfectly correct with respect towhat I have previously described as corrupt practices proper (such asbribery, treating and undue influence). Offences of that kind from theirvery nature involve an element of corruption which was “ operativeon the election ”, even though they were fully implemented at a laterdate ; because the mischief had already contaminated the votes of personswho had come under its influence. Section 77 (c) by itself does not inmy opinion preclude statutory corrupt practices of a different kind—such as offences under section 58 (1) (/)—from forming the basis of anelection petition if committed after the election. The right to includesuch charges in election petitions ultimately depends, however, onwhether the procedural provisions of the enactment are wide enoughto catch up the particular case. It is at this point that the scheme ofthe Order-in-CouncM seems to have broken down, and. we are not vestedwith jurisdiction to invent a procedure to deal with a casus omissus.
I have not considered it necessary to consider very closely, for thepurposes of this appeal, provisos (6) (1) and (6) (2) of Section 83 (1)which apply to petitions questioning a return or election upon allegationsof illegal practices. Suffice it to say that proviso (6) (1) is in my judg-ment applicable to illegal practices committed before or after an election,
23a
PXJLLE J.—Senanayake v. Navaratne
but within the time limit therein prescribed. With regard to proviso(6) (2), the words ” in pursuance or in furtherance of ” njust necessarilyhave the same meaning as in proviso (a)—and would therefore catch upany illegal practice committed before the date of publication of the noticerequired by Section 71, provided that it was “ pursued ” or furthered ”after that date by a subsequent “ payment ” or “ act
I would reverse the determination of the learned election judge,because in my opinion
the decision against the appellant under section 58 (1) (c) wascontrary to law ; and
there was no jurisdiction to adjudicate upon the allegation that
the appellant had committed a corrupt practice under section 58
(/) on 27th June 1952—i.e. after the last date for presentingpetitions under Section 83 (1) had expired.
In this view of the matter, I would decide that, upon the material whichwas properly before the learned Judge, the appellant was duly returnedand elected as a Member of the House of Representatives on 24th May,1952.
I have prepared my judgment while on circuit, and have been deprivedof the opportunity of reading the judgments of my Lord the acting ChiefJustice or of my brother Pulle. I understand, however, that they donot share my views as to the inapplicability of Section 83 (1) proviso
to corrupt practices punishable under Section 58 (1) (6). The Order -in-Council certainly presents many difficulties, and it is not perhapssurprising that “ though we have entered the labyrinth together, wehave unfortunately found exit by different paths ”, per Lord Buckmasterin Greed Western Railway Co. v. Raterl. In view of the decision of themajority of the Court, it follows that the order of the learned Judgeinvalidating the appellant’s election must be upheld.
Pulle J.—
For the reasons set out in the judgment of Gratiaen J. I am of opinionthat the finding against the appellant that he was guilty of a corruptpractice under section 58 (1) (c) cannot be sustained. During thecourse of the argument I gathered that the case of Weerakoon v. Ranhamy 2was cited to Windham J. at the hearing of Perera v. Jayawardene3.In the view that Windham J. took of what constituted the essentialelements of the offence it was not necessary for him to refer in his judg-ment to Weerakoon v. Ranhamy (supra) and it could not, therefore, besaid that he reached a decision without regard to a relevant and binding
» (1922) 2 A. C. 1 atp. 1U* (1921) 23 N: L. R. 33.
(1948) 49 N. L. R. 241.
PTJLLE J.—Senanayake v. Navaratne
231
authority. It may -well be, as Mr. Nadesan argued, that in Englandwhere the mental element of dishonesty or corruptness is not specificallystated in the statutory description of the offence the burden rests on therespondent to show that his action was not tainted. This shifting ofthe burden h ft unaffected the question as to what the Judge had ulti-mately to find, namely, whether the acts expressly prohibited weredone or not done with the intention of corruptly influencing the vote.
As section 58 (1) (c) stood before it was amended by Act No. 26 of1953, not only a candidate or his election agent but every person printing,publishing, distributing or posting up any advertisement, handbill,placard or poster which refers to any election and which did not bearupon its face the names and addresses of its printer and publisher wasguilty of a “ corrupt ” practice. Now, if the words of section 58 (1)
were intended to penalise any act howsoever innocent then thereis no alternative but to give effect to the intention of the Legislature.The court would not then be concerned with the seriousness of the penalconsequences. I do not, however, assent to the proposition that a scaleof heavy penalties provided for the breach of the provisions of a statuteshould be disregarded in ascertaining the proper meaning of the statute.One can visualise a , number of acts coming strictly within the letter ofsection 58 (1) (c) which are irreproachable by any ethical standard.Before saying that the commission of any such act involves the forfeitureof a seat in Parliament and the deprivation of civic rights for a numberof years one must examine besides the language of the provision the background of the law from which we derive the very concept' of a corruptpractice. The expression “ corrupt practice ” as used, at least inreference to the acts done before and during an election, has been inter-preted in England to mean the doing of such acts with a corrupt mind.I consider it perfectly legitimate to Gonstrue section 58 (1) (c) as WindhamJ. did in Perera v. Jayawardene (supra) by applying the ratio of thedecision in the Stepney case1 in which the element of corruptness wassaid to form part of the offence of personation, although the words“ corruptly or wilfully ” or “ corruptly or knowingly ” did not appearin the definition of the offence..
It is not necessary to elaborate the remaining topics arising out ofthe charge under section 58 (1) (c) because I am in agreement with whatGratiaen J. has said about them. The provisions of the amendingAct No. 26 of 1953 could not alter the meaning of the words in section 58
(c) as they fell to be interpreted by the learned election judge. Theconstruction placed by Parliament on these words in 1953, if it is at allpossible to ascertain what that construction is on a reading of the Actof 1953, would be irrelevant in the judicial determination of the truemeaning and scope®of section 58 (1) (c). The retrospective operationof the Act of 1953 could not give a new and retrospective meaning tosection 58 (1) (c). How section 58 (1) (c) read in conjunction with theAct of 1953 should be interpreted dees not in my opinion arise fordetermination because the success of the appellant in the first appealon the first charge renders it unnecessary to consider the second, appeal.
{.1886) 4 O’M. & J3T. p. 34.
232
PULLE J.—Senanayake v. Navaratne
On the second charge that the appellant knowingly made the declarationas to election expenses required by section 70 falsely the-learned electionjudge came to a finding against the appellant, which he was entitled to,on the evidence placed before him. Our appellate functions limited tocorrecting errors in law preclude us from disturbing this fading.
The next question whether the corrupt practice is caught up bysection 83 (1) (a) is not free from difficulties but having given the mostanxious consideration to all the arguments so powerfully urged on behalfof the appellant I do not feel that the difficulties are of such a magnitudeas to convince me that the offence of knowingly making a false returnof election expenses cannot be brought within section 83 (1) (a). Iwould certainly hesitate to dissent from the considered opinions of twoJudges of this court in S. V. Kunasingham ef al. v. G. G. Ponnambalam1and 8. J. V. Chelvanayalcam v. S. Natesan2, unless I was satisfied thatthey were clearly wrong.
I need not recapitulate the history of the legislation in England whichrendered it possible after the passing of The Corrupt and Illegal PracticesAct, 1883, (46 and 47 Viet. C. 51) to challenge an election by a petitionalleging an offence relating to the return and declarations respectingelection expenses. I find it fully set out in the judgment of Gratiaen J.One fact is undoubtedly obvious that both in the Ceylon (State CouncilElections) Order in Council, 1931, and the Ceylon (ParliamentaryElections) Order in Council, 1946, there is no provision in terms similarto section 40 (3) of the Act of 1883. One of the questions raised at theargument was whether the omission to reproduce in terms section 40 (3) •in our Orders in Council, be the omission accidental or deliberate, hasresulted in there being made no provision for challenging an election onthe ground of making a false return of expenses. While the omissionto make express provision is a circumstance to be borne in mind, ulti-mately the question which has to be decided on this part of the appealturns on whether upon a reasonable interpretation of sections 77 (c)and 83 (l)(<z) the corrupt practice in question is brought within theirambit. I confess that if it can be brought I would not be shocked atthe result.
In regard to the application of section 77 (c) I am satisfied that thecorrupt practice of making a false return of expenses can be said to be onecommitted “ in connection with the election ”. Making a return isa necessary adjunct of an election. Section 70 (3) renders a memberwho fails to transmit a return within the prescribed time liable to penalties,if he sits or votes in the House of Representatives and he is further guiltyof an illegal practice under sub-section 6 which ought to be a ground foravoiding the election. It has been argued that thb word “ candidate”in section 77 (c) read with the words “ was committed ” point to thelimitation of the jurisdiction of election courts to investigate chargesof corrupt or illegal practices committed when the member was onlya candidate and that, therefore, the corrupt or illegal practices mustbe those committed prior to the publication of the result of the' election
3 (1952) 54 N. L. B. 304.
(1952) 54 N. L. B. 36.
PTJLLE J.—Senanayake v. Navaratne
233
under section 50. Reliance is placed on the definition of the word“ candidate ” in section 3 (1). In my opinion the word “ candidate ”means the candidate elected as a member. I do not think I need saymore than that in many places in the Order in Council the words“ candidate ’ and “ member ” are interchangeable. It is also unlikelythat the framers of the Order in Council intended to leave out of thepurview of section 77 (c) those illegal practices like payments of moneyafter the prescribed time in meeting liabilities justly and properly incurred.In other words, I find it difficult to reconcile myself with an interpretationwhich would divide corrupt and illegal practices into two classes, thosewhich can be the basis of an election petition and those in which aprosecution of the member would be the only way of vindicating the law.I am strengthened in the view I hold by the opinion which Gratiaen J.appears to favour that if a false return is made within twenty-one daysof the declaration of the result of the election, a petition challenging theelection under section 77 (c) could be maintained.
I come now to section 83 (1) (a). Prime facie the “ corrupt practice ”referred to in that paragraph would include the offence of knowinglysending a false return of expenses. Can it be said that the act of making 'the declaration was an act done “ in pursuance or in furtherance ” ofthat corrupt practice 1 A large part of the argument was devoted tothe comparison of section 83 with the corresponding provisions of section 6
of the Parliamentary Elections Act, 1868, and section 40 of the Corruptand Illegal Practices Prevention Act, 1883. Section 83 had its exactcounterpart in Article 80 of the Order in Council of 1931. Corruptpractices in 1931 were limited to personation, treating, undue influence,bribery and false declaration as to election expenses. It is manifestthat when the draftsman of 1931 modelled himself on the English Actshe purposely omitted to make express provision similar to that in section40 (3) of the 1883 Act. In regard to “ illegal ” practices being theground for challenging an election by a petition filed after twenty-onedays substantially the whole of the English provision was taken over.There was a departure in the language so far as corrupt practices went.Whereas section 6 (2) of the Act of 1868 read “ and specifically allegesa payment of money or other reward to have been made by any member.”Article 80 (2) (a) of the Order in Council of 1931 stated “ and specificallyalleging a payment of money or other act to have been made or done sincethe date aforesaid by the 'member The variation in the language wasobviously intentional. Whereas section 6 (2) of the Act of 1868 envisagedonly the corrupt practices of bribery and treating the Orders in Councilof 1931 and 1946 (Article 80 and section 83) were intended to embracea larger class of corrupt practices. The only question is whether thisintention has been frustrated, so far as false returns as'to election expensesare concerned, on the ground that the language used in section 83 (1)(a) (and in the corresponding Article 80) is inapt. In the absence ofauthority defining comprehensively the expressions “ in pursuance ”and “ in furtherance ” one is entitled to give to them one of the dictionarymeanings sensible in the context. One of the simplest meanings of
234
PTJX.X.E J.—Senanayalce v. Navaratne
either expression would be the “ prosecution ” or the “ promotionof the thing. Referring to a person acting “ in furtherance of a strike ”the Court of Criminal Appeal in England said in Bex v. Tear.se “Ifthese words fell to be construed apart from the consideration of previous-legislation and pronouncements on that legislation, it miglit be difficultto suggest that any restriction should be placed on the meaning of the-word ‘ furtherance’. In English literature it is found applied equallyto mean the advancement of things before they come into existenceand after they have been begun, but the words ‘ in furtherance of atrade dispute ’ have a history.” . In Tearse’s case a restricted meaningwas given to the phrase “ in furtherance of” because in an earlier case,Conway v. Wade 2, which went up to the House of Lords where the words“ an act done in contemplation or furtherance of a trade dispute ” hadto be construed, two of their Lordships stated in the particular contextin which the words occurred that “ an act done in contemplation ”meant an act done before the dispute arose and “ an act done in further-ance ” meant an act done when the dispute had come into existence.It would thus be seen that the phrase “ in furtherance ” was given arestricted meaning because it was associated with and preceded by thewords “ in contemplation of ”. I have not been convinced that the-phrases in section 83 (1) (a) or, for that matter, tire same phrases bi-section 83 (1) (b) (ii) should be given a restricted meaning. It is truethat in England in cases falling under section 6 (2) of the Act of 1868the phrases have been held to describe the implementation after theelection of a corrupt pre-election promise to treat or a promise to givea voter a money reward or its equivalent. Such cases are obviousexamples of acts done “ in pursuance ” or “ in furtherance” of corruptpractices. Does it, however, follow by logical necessity that there is noscope for the application of either phrase to the corrupt practice ofmaking a false return 1 I am constrained to say “ No ”. This corruptpractice is one which by its nature can be committed only after the-declaration of the result of the election. I see, therefore, no compellingreason why the idea of a nexus between a pre-election promise and itsimplementation should affect the approach to what is an independentproblem, namely, whether the act of making a declaration for thepurposes of section 70 of the Order in Council is an act done in pursuanceor in furtherance of the corrupt practice penalised by section 58 (1)(/)• '
In the final result I hold that the appeal from the finding under section58 (1) (c) succeeds and that the learned election judge had jurisdiction,by reason of the provisions in section 83 (1) (a), to try the charge ofcorrupt practice of making a false-return as to election expenses.
I agree with my Lord, the Acting Chief Justice, ap to the final^ordei-which would result from the conclusions at which we have arrived.
Appeal dismissed'.
(1945) 1 K.B.1 (cap. 5.)
(1909) A.. C. 506-