132-NLR-NLR-V-54-H.-ABRAHAM-SINGHO-Petitioner-and-MRS.-KUSUMASIRI-GUNAWARDENA-Respondent.pdf
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Abraham Szngho v. Gunaward&na
1953Present : Swan J.
H. ABRAHAM SINGHO, Petitioner, and MRS. KUSTJMASIRIGUNAWARDENA, Respondent
Election Petition No. 15 of 1952 (Avissawella)
Election Petition—Particulars of charges not furnished—Duty of election judge undersuch circumstances—■Ceylon (Parliamentary Elections) Order in Council, 1946,
’ s. 86 (1) and Schedule III, Rules 21 to 26.
Where, in an election petition, the petitioner stated that he was unable tofurnish particulars of the charges and to proceed with the petition—
Held, that under the Parliamentary Elections Order in Council the functionsof an election judge are purely judicial. So, when at the trial, no evidence isled on the charges, the judge is not bound to proceed any further. He mustdismiss the pe’tit’on.
Per Swan J.—“ There is no reason for me to suspect that the abandonmentof the petition is collusive, dishonest or fraudulent. But even if there is roomfor suspicion X do not think there is anything X can do in the matter,’'
1H J LECTION petition No. 15 of 1952 (Avissawella).
C. S. Barr Kumarakulasinghe, with Ivan Perera, for the petitioner,iS. Nadesan, with A. B. Perera, for the respondent.
V. Tennelcoon, Crown Counsel, as amicus curiae.
Cur. adv. vult.
June 22, 1953. Swan J.—,
The Election for the Avissawella Electoral District No. 15 was heldon 30.5.52. There were two candidates, Mrs. Clodagh Jayasuriyaand the respondent. The respondent was elected. The result waspublished in the Government Gazette of 2.6.52.
The petitioner claiming to be a registered voter in the district filedthis petition on 21.6.52 in which he seeks to have the respondent un-seated on the ground that she and her agents were guilty of the corrupt
SWAN J.—Abraham Singho r. Qunawardena
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practice of undue influence. He also seeks to have the election declaredvoid on the ground that by reason of general intimidation the majorityof the electors were prevented from electing the candidate they preferred.
When notice of presentation of the petition was duly served on therespondent she entered an appearance and appointed an agent to represenher. On 20.10.52 I was appointed Election Judge and on 15.1.53I fixed the trial of the petition for 23.3.53 which date was subsequentlyaltered to 9.6.53.
On 4. 5. 53 the respondent’s agent moved for an order on thepetitioner to deliver to him on or before 12.5.53T particulars of thecharges. On 13.5.53 counsel saw me in Chambers and the petitioner’sproctor agreed to furnish the particulars asked for on or before 25.5.53.The case was called the following day and, as no particulars were furnishedand no application was made for further time, I directed that the trialdate should stand.
On 9.6.53 the petitioner and respondent were present. Mr. IvanPerera appearing for the petitioner stated that the petitioner was unableto furnish the particulars asked for. Mr. A. B. Perera thereupon movedthat the charges be struck out and the petition dismissed. As theRules made no provision for a situation like this, I adjourned the hearingfor 12.6.53 and requested the Attorney-General to send a representativeof his Department to be present as amicus curiae.
On 12.6.53 the petitioner was represented by Mr. C. S. Barr Kumara-kulasinghe with Sir. Ivan Perera, and the respondent by Mr. S. Nadesanwith Mr. A. B. Perera. Mr. V. Tennekoon, C.C., appeared as amicuscuriae. Mr. Barr Kumarakulasinghe repeated what Mr. Ivan Pererahad stated on 9.6.53 but explained at length why the petitioner couldnot proceed with the matter. Mr. Nadesan thereupon moved that thepetition be dismissed with costs. Having heard Crown Counsel I saidI would like to consider the matter further and I accordingly reservedmy order for 22.6.53.
Rules 21 to 26 deal with an application to withdraw a petition andlay down the procedure to be followed when such an application ismade. But this is not an application to withdraw and I cannot treat itas such, nor can I compel the petitioner to make an application to with-draw so that I may follow the procedure laid down in these rules. Whatthen are the duties and powers of the Court when a petitioner says he-is unable to furnish particulars and proceed with the petition ?
Before the Corrupt and Hlegal Practices Prevention Act of 1883-Election Judges in England considered their functions to be judicialrather than inquisitorial. Thus in Windsor x, when the petitionerexpressed a desire not to go on with the charges and the respondentseemed reluctant to proceed with the recriminatory case Willes J. didnot seem to think it incumbent on him to pursue the matter any further.In Taunton2, Grove J. said :—
" It must be borne in mind in these cases, that although the objectof the statute by which these election tribunals were created was to-prevent corrupt practices, still, the tribunal is a judicial and not an1 (1869) O’M & H. 6.2 (1874) 2 O’M db H. 74.
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SWAif J.—Abraham Singho v. Gunawardena
inquisitorial one ; it is a court to hear and determine according to lay,and not a commission armed with powers to inquire into and suppresscorruption.”.
In Canterbury1, where the petition charged corrupt practices, and therespondent stated that he could not answer the case, the Court (Denman& Lopes J J.) intimated that their functions were judicial, not inquisitorial,.and pointed out that while they were ready to hear any evidence whichthe petitioner might desire to bring forward, such evidence would haveto be produced at the sole cost of the petitioner, and would be givenwithout being subject to cross-examination. The petitioner thereuponintimated that he did not feel called upon to prosecute the petition athis own expense, and Denman J. said :—
‘‘ This is the most satisfactory course because after carefully con-sidering the provisions of the Act, I have been quite unable to seehow we could have proceeded either satisfactorily or usefully withoutany protection for the witnesses.”
After the Act of 1883, however, Judges took a different view. Itwill be noted that this Act required the judges to report whether corruptand illegal practices had extensively prevailed and also provided thatthe Director of Public Prosecutions should attend the trial and. obeyany directions given by Court with regard to the summoning and examin-ation of witnesses and the prosecution of offenders, and should causeanyone who he thought was able to give material evidence to attend.There was no such requirement or provision in the ParliamentaryElections Act of 1868.
Thereafter the Judges felt it their duty to probe allegations of corruptand illegal practices very fully. Thus in Ipswich 2 Denman J. said :—
“ In this Act there are provisions which render it impossible, ifthere be any indications of impurity in the election, to shorten thecase by concessions between the parties, and which really compelthe judges to sit as long as there is anything which can be broughtbefore them not only by the parties themselves but by the officersitting here in the interest of the public, whose duty it is not to letanything drop which may 'tell in favour of the theory that there hasbeen improper conduct, so that it may not escape or go unpunished,and still more, perhaps, in order that there may not be that which wasan intolerable burden upon a place, namely, commissioners comingdown to hold a further inquiry.”
Rodgers in his Treatise on Parliamentary Elections and Petitionsf(-20th Ed. Vol. II, pp. 243-245) cites several cases where the judges tookthis view. I need refer only to one of them, namely, North Louth3.In this case two corrupt practices were proved to have been committedby an agent of the respondent. Counsel for the respondent thereuponstated that he was prepared to submit to an order that the election wasvoid. The Court, however, decided to go on, and Madden J. said :—
“ I entirely adopt the language of Mr. Justice Denman, referring tothe Corrupt and Illegal Practices Prevention Act, 1883, that there1 (1880) 3 O’M <& H. 103.2 (1886) 4 O’M db H. 71.
3 (1911) 6 O’M db H. 103.
SWAN J.—Abraham Singho v. Gunawardena
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are provisions in that Act which render it impossible, if there be anyindication of impurity in the election, to shorten the case by aconcession between the parties.”
The Parliamentary Elections Act of 1868, the Ballot Act of 1872 asamended by the Representation of the People Acts of 1918, 1920 and1948, and the Corrupt Illegal Practices Prevention Act of 1883 remainedthe law in England till they, and all other statutes affecting Parliamentaryand Local Government Elections, were replaced by a consolidatingmeasure—namely, the Representations of the People Act of 1949. Sowhen our Order in Council was prepared it is reasonable to presume thatit was based on the English Law and Procedure as it existed in 1946, thedraftsman having before him as a model and guide The Ceylon (StateCouncil Elections) Order in Council, 1931.
The point I wish to stress is that neither in that Order nor in thepresent Order was any provision made for an official of Government toperform a duty corresponding to that of the Director of PublicProsecutions in England at an election trial.
I should also mention that in the Representation of the People Act of1949 the rights and duties of the Director of Public Prosecutions havenot been altered to any great extent. He is no longer required to bepresent at the trial but still has to “ obey any direction given him by theelection court with respect to the summoning and examination of anywitness to give evidence at the trial” (Sec. 123 (5)), and “ without anydirection from the Court cause any person appearing to him to be ableto give material evidence as to the subject of the trial to attend thetrial and with the leave of the court examine him as a witness ” (Sec. 123(6) ). The Act also makes it necessary for the court to report “ whethercorrupt and illegal practices have, or whether there is reason to believethat corrupt or illegal practices have, extensively prevailed at theelection ” (Sec. 124 (2) ).
Under our Order in Council an election judge has at the conclusion ofthe trial to determine whether the member whose return or election iscomplained of or any other and what person was duly returned or elected,or whether the election was void ; and certify such determination to theGovernor. He has also to report in writing to the Governor—
(а)whether any corrupt or illegal practice has or has not been proved
to have been committed by or with the knowledge and consentof any candidate at the election, or by his agent, and the natureof such corrupt or illegal practice, if any ; and
(б)the names and descriptions of all persons, if any, who have been1 proved at the trial to have been guilty of any corrupt or illegal
practice.
In my opinion under our Order in Council the functions of an electionjudge are purely judicial. So when at the trial no evidence is led onthe charges the judge is not bound to proceed any further. He mustdismiss the petition.
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HOSE O. J.—Seemon Singho v. Paddawala Police
With the Order in Council certain rules have been published. Section86 (1) sets out :—
“ Subject to the provisions of this Section the procedure and practiceon election petitions shall, until Parliament otherwise provides, beregulated by the rules contained in the Third Schedule to this Order.”
If Parliament thinks it necessary or desirable to add to or amendthose rules in order to meet a situation like the one that confronts mein this case, it is open to it to do so.
There is no reason for me to suspect that the abandonment of thepetition is collusive, dishonest or fraudulent. But even if there is roomfor suspicion I do not think there is anything I can do in the matter.
The charges are struck out and the petition dismissed. The petitionerwill pay the respondent Its. 1,000 by way of costs. I think this sum issufficient in view of the stage at which this petition is dismissed. But Ido think it desirable that a scale of costs should be prepared and addedto the rules.
Petition dismissed.