080-NLR-NLR-V-67-G.-A.-S.-PERERA-and-another-Petitioners-and-SIRIMAVO-DIAS-BANDARANAYAKE-Respo.pdf
1965Present : Sirimane, J.
G. A. S. PERERA and another, Petitioners, and SIRIMAVO DIAS
BANDARANAIKE, Respondent
Election Petition No. 37 of 1965—Attanagalla
Election petition—Quantum of security for costs—Computation of number of“ charges ” —Ceylon (Parliamentary Elections) Order in Council (Cap. 381),8. 77 (a), Rule 12 (2) (3) of Schedule 3.
The petitioners sought to challenge the validity of the election of the respon-dent as a Member of Parliament. Paragraphs 3 and 4 of the petition allegedthat she was guilty of undue influence and corrupt practice respectively. Para-graph 5 of the petition stated further :—“And your petitioners further state thatby reason of misconduct on the part of the respondent, her agents, hor supportersand others interested in promoting her candidature, and by reason of othercircumstances (particulars of same to be furnished with the particulars of theafore-mentioned charges) the majority of electors were or may have been pre-vented from electing the candidate whom they preferred within the meaning ofSection 77 (a) of the Ceylon (Parliamentary Election) Order in Council. ”
Held, that the petition contained four complaints, grounds or charges withinthe meaning of Rule 12 (2) of the Ceylon (Parliamentary Elections) Order inCouncil. They were (1) Undue influence, (2) Corrupt practice, (3) Misconduct,and (4) Other circumstances. Accordingly, the security in a sum of Rs. 5,000given by the petitioners was not sufficient.
El LECTION Petition No. 37 of 1965,—Attanagalla.
A. H. C. de Silva, Q.C., with Izzadeen Mohamed and A. C. M. Uvais,for the Petitioners.
George E. Chitty, Q.C., with Colvin P. de Silva, Felix R. DiasBandaranaike and Hannan Ismail, for the Respondent.
J.G. T. Weeraratne, Senior Crown Counsel, with. H. L. de Silva, CrownCounsel, as amicus curiae.
Cur. adv. vult.
September 30, 1965. Sirimane, J.—
The respondent moves that this pet'tion challenging her election to theAttanagalla Electorate be dismissed on the ground that the petitionershave failed to furnish security as required by Rule 12 sub-section 2 of theCeylon (Parliamentary Elections) Order in Council (Chapter 381). ThatRule is as follows :—
“ The security shall be to an amount of not less than Rs. 5,000. Ifthe number of charges in any petition shall exceed three, additionalsecurity to an amount of Rs. 2,000 shall be given in respect of eachcharge in excess of the first three. The security required by this Ruleshall be given by a deposit of money. **
The petitioners have given security in a sum of Rs. 5,000.
It is contended for the respondent that there are at least four charges inthe petition.
Paragraph 3 of the petition alleges that the respondent has beenguilty of undue influence.
Paragraph 4 alleges that she has been guilty of a corrupt practice.
Paragraph 5, which is the relevant paragraph, reads as follows :
“ And your petitioners further state that by reason of misconduct on thepart of the respondent, her agents, her supporters and others interested inpromoting her candidature, and by reason of other circumstances (parti-culars of same to be furnished with the particulars of the afore-mentionedcharges) the majority of electors were or may have been prevented fromelecting the candidate whom they preferred within the meaning of Section77 (a) of the said Order in Council. ”
The question is whether paragraph 5 contains more than one charge.
The election of a candidate as a Member can be declared void on any ofthe grounds set out in Section 77 of Chapter 381. The relevant sectionfor the purposes of this inquiry is Section 77 (a) which is in the followingterms :
“ 77 (a) That by reason of general bribery, general treating orgeneral intimidation, or other misconduct, or other circumstances,whether similar to those before enumerated or not, the majority ofvoters were or may have been prevented from electing the candidatewhom they preferred. ”
In my view every one of the grounds set out in Section 77 (a) constitutesa separate and distinct charge and the petitioners in paragraph 5 allege(a) misconduct (6) “ other circumstances (particulars of same to befurnished with the particulars of the afore-mentioned charges) ”, toreproduce the words in the petition itself. “ Misconduct ” would meansome act on the part of the respondent (other than those specified earlierin the petition) which affects the result of the election.
Those matters which do not come under “ misconduct ” but still affectthe result of the election would be “ other circumstances ” e.g. a flood, acyclone, the collapse of a bridge—any factor which prevents voters fromproceeding with reasonable safety to a polling booth.
I am unable to agree with the contention of learned Counsel for thepetitioners that a charge is something which can be alleged against aperson and must be a corrupt practice or an illegal practice.
A charge in an election petition, in my view, is a complaint, i.e. some-thing the petitioner has reason to complain of, which prevented themajority of electors from electing the candidate whom they preferred.A charge in this sense may include “ an act of God ”, like a flood.
Reliance was also placed by the petitioners on the dictum of Drieberg,J. in TiUaJcaivardena vs. Obeyesekere1 where he stated : “ In my opinionby the word ‘ charges ’ in Rule 12 (2) is meant the various forms ofmisconduct coming under the description of corrupt and illegalpractices. ” Drieberg, J. was there dealing with charges of corrupt andillegal practices and I think it is fairly clear that the definition is notexhaustive. In several cases the word “ charge ” has been applied to anyallegation made against the validity of an election. (See, for example,IJlangaratne v. G. E. de Silva 2 where the word “ charge ” was used withreference to “ unprecedented floods ” which, it was alleged, had affectedthe election.)
My attention was also drawn to a decision of Hearne J. in Jeelin Silva v.Kvlaratne 3 which was later followed by Sri Skanda Rajah, J. in Piyasenav. Rativatte *.
In Jeelin Silva v. Kularalne (supra) the petition contained charges ofundue influence, treating and impersonation. It was also prayed thatthe election be declared void by reason of general intimidation andimpersonation on a large scale and of general treating. The question tobe decided was whether there were more than three charges. Hearne J.expressed himself thus : “ The only question is how many charges did thepetition contain ? The answer, as a matter of simple calculation, is four.There were 3 of corrupt practices alleged to have been committed by therespondent or his agents and one of general intimidation, general treating,etc. which if proved would have had the effect of unseating the successful
candidate” I am inclined to agree with the submission of
learned Counsel for the respondent, that once it was established in thatcase that there were more than 3 charges the learned Judge did not findit necessary to carefully examine the question whether the prayer whichcontained the fourth charge, also contained within it more charges thanone. If the decisions cited above are relied on as authority for the pro-position that any or all the grounds set out in Section 77 (a) which resultin the majority of voters being prevented from electing the candidate oftheir choice form only a single charge because the result is the same,
I regret I am unable to share that view, and with great respect mustrecord my dissent therefrom.
The purpose in taking security is to defray, as far as possible, the coststhat may be incurred by a successful respondent in defending himselfagainst various charges. The evidence needed to meet a charge of generalintimidation would be different from that needed to meet a charge ofgeneral bribery and the evidence required to meet one of “ other circum-stances ” would be different from both.
Merely because the ensuing result must be shown to be the same (viz.that the majority of the electors were prevented from electing the candi-date they preferred) it would be unreal, in my view, to regard all thecharges as set out above as one single charge.
1 (1931) 33 F. L. R. 65.* (1942) 44 N. L. R. 21.
* (1948) 49 N. L. R. 16V at 183.* (1965) 67 N. L. R. 473, 68 G. L. W. 41.
In Silva v. Karaliyadde1, where a question very similar to theone in the present case came up before Drieberg, J., the learnedJudge said :“In my opinion the charges of general bribery, general
treating and general intimidation were distinct charges from those ofbribery, treating and undue influence in regard to ascertained and named
persons” I am in respectful agreement with that view.
In my opinion the petition contains four complaints, grounds or chargeson which it is sought to challenge the election. They are :—
Undue influence,
Corrupt practice,
Misconduct, and
Other circumstances.
As only a sum of Rs. 5,000 has been deposited, the petitioners havefailed to give security as provided by Rule 12, and acting undersub-section 3 of that Rule I dismiss the petition with costs.
I am grateful to learned Counsel who appeared for the parties and toCrown Counsel who appeared as amicus curiae for the assistance renderedat the argument.
Petition dismissed.