ILANGARATNE et al., Pettitioners, and G. E. DE SILVA Respondent

055-NLR-NLR-V-49-ILANGARATNE-et-al.-Pettitioners-and-G.-E.-DE-SILVA-Respondent.pdf


Jlangaratne o. O. E. de Silva.
169
1948Present: Windham J.
ILANGARATNE et al., Petitioners, and G. E. DE SILVA,
Respondent.
In the Matter of the Election for the Kandy Electoral
District.
Elections Petitions Nos. 4 and 5 of 1947.
Election petition—Ceylon (Parliamentary Elections) Order tn Council, 1946—Sections58 (I) (d), 77 (a) and (c)—Proof of false statement of fact relating to candidate’spersonal character—Proof of circumstances preventing majority of electorsfrom polling—Treating—Undue influence—Evidence—Proof of contents ofwritten statement—Evidence Ordinance (Cap. 11), ss. 35, 114 (J).
One of the charges set out in an election petition was that the respondenthad made false statements of fact in relation to the personal character and conductof the petitioner to the effect that the petitioner had ns a clerk in the Governmentservice accepted or obtained illegal gratifications and had consequently beendismissed from Government service. The latter part of the charge, relatingto dismissal from Government service, was not proved.
Held, that the sting of the false accusation against the petitioner was thathe had taken bribes, and this alone was sufficient to constitute an offenceunder section 58 (1) (d) of the Ceylon (Parliamentary Elections) Order inCouncil, 1946. The unproved remainder was mere surplusage.
Held, further, that a police officer’s official report of a speech at an electionmeeting is admissible under section 35 of the Evidence Ordinance and is notany the less admissible from the fact that his original rough note made duringthe actual course of the speech, and a rough draft of the report made immediatelyafterwards, have since been lost or destroyed. It is the report itself whichis admissible, and nothing in the law requires the production of the roughnote or draft of such a report.
Where it was alleged, under section 77 (o) of the Ceylon (ParliamentaryElections) Order in Council, 1946, that owing to circumstances arising fromfloods and the housing of the refugees in camps “ the majority of electorswere or may have been prevented from electing the candidate whom they,preferred ”—
Held, that evidence should have been led as to what number of the refugeeswere voters and whether, if they were voters, they abstained from polling,or polled for the respondent, by reason of circumstances directly arising fromthe floods.
Held, further, that succouring the refugees with the only motive of alleviatingtheir distress was not “ treating ” -within the meaning of section 77 (a).
A charge of undue influence has to be proved beyond reasonable doubt.In such charges a strong suspicion is not enough.
If in the course of giving evidence a statement whether verbal or reducedinto writing which contains relevant facts previously made by a witness isspecifically put to him as having been made by him, and he admits that hemade it and that what he stated therein is true, the relevant facts in the state-ment may be treated as if they had been deposed to in the ordinary way in thewitness box.
No adverse inference should be drawn under section 114 (f) of the EvidenceOrdinance against a party who omits to call witnesses who might seem bestcalculated to support his case but who will decline to give evidence in bisfavour for fear of inculpating themselves.
17 – N.L.R. Vol – xlU
170
WINDHAM J.—llangaratne v. O. E. de Silva.
X HESE were two election Petitions Presented against the return'of the respondent as member for the Kandy Electoral District,at an election held on August 23,1947.
Petition No. 4 alleged (a) that the respondent had by himself, his.agents and other persons on bis behalf made and published, for thepurpose of affecting the return of the petitioner, false statements of fact-in relation to the personal character and conduct of the petitioner to theeffect that the petitioner had as a clerk in the Government serviceaccepted or obtained illegal gratifications and had consequently beendismissed from Government service ; (6) that the respondent's son, whowas an agent of the respondent and acted with knowledge and consentof the respondent, made payments of expenses incurred on accountof the election although he was not the respondent’s election agent;
that by reason of circumstances attending on or following floodsin the District, the majority of the electors were oi might have beenprevented from electing the candidate whom they preferred.
Petition No. 5 alleged that the respondent was guilty of the offencesof treating, undue influence and bribery.
E. F. N. Gratiaen, K.C., with S. Nadesan and G. T. Samerawickrama,for the petitioner in Petition No. 4.
E. F. N. Gratiaen, K.C., with B. H. Aluwihare and S. E. J. Fernando,for the petitioner in Petition No. 5.
R. L. Pereira, K.C., with U. A. Jayasundera, J. A. L. Cooray andS. J. Kadirgamar, for the respondent in Petitions Nos. 4 and 5.
C. S. Barr Kumarakulasingham. with A. I. Rajasingham and VernonWijetunge, for Fred, de Silva.
Our. adv. vult.
February 24, 1948. Windham J.—
The two petitions in this case, which are being dealt with as one inaccordance with rule 6 of the Parliamentary Election Petition Rules, 1946,are presented against the return of the Honourable Mr. George Edmundde Silva as member for the Kandy Electoral District, at an election heldon August 23, 1947. The result of the election, as published in theCeylon Government Gazette of September 2, 1947, was as follows :—
Mr . George E. de SilvaMr. T. B. llangaratneMr. A. GodamuneMr. D. B. Wadugodapitiya
7,942 votes7,737 votes2,350 votes172 votes
The petitioner in petition No. 4 is the unsuccessful candidate Mr. T. B.llangaratne over whom the respondent polled a majority of 205 votes.The petitioner in petition No. 5 is Mr. John Weerasekera, a person whovoted at the election, and a supporter of Mr. llangaratne.
The charges set out in petitionNo. 4 are four in number, and aie framedas follows:—
“ 3. Your petitioner states that before and during the said electionthe respondent by himself, his agents and other persons on his behalfmade and published for the puipose of affecting the return of the
WINDHAM J.—Ilangaratne v. O. E. de Silva.
171
petitioner, false statments of fact in relation to the personal characterand conduct of your petitioner to the effect that the petitioner hadas a clerk in the Government Service accepted or obtained illegalgratifications and had consequently been dismissed from service.
Tour petitioner further states thatthe respondent’s son, Fred deSilva, Mayor of Kandy, who was an agent of the respondent, andacted with knowledge and consent of the respondent made paymentsof expenses incurred on account of and in respect of the, said electionalthough he was not respondent’s Election Agent in contravention ofArticle 62 of the CeyIon(Parliamantary Elections) Order in Council,1946.
Your petitioner further states that by reason of circumstancesattending on or following recent floods in the District including thedisorganisation of the life of large sections of the voters, the segregationof refugees who were voters, disturbance of communication and trans-port and the scarcity of petrol, the majority of the electors were or mayhave been prevented from electing the candidate whom they preferredat the said election.
Your petitioner rurther states that the respondent was at thetime of the election a person disqualified for nomination and/or election as a member in that he was a Public Officer, within themeaning of Article 13 (3) (6) of the Ceylon (Constitution) Orderin Council, 1946, which objection regarding disqualification was takenby the petitioner on the date of nomination and disallowed by theIteturning Officer
Three further charges are set out in petition No. 5 as follows :—
“ 3. Your petitioner states that George Edmund de Silva, therespondent above named, was guilty of the offence of treating in thathe himself, his agents and other persons, acting on his behalf, with hisknowledge or consent, did before and during the said election provide■drink, refreshment and provisions to voters and other persons for thepurpose of corruptly influencing the said voters to cast their votesat the said election in favour of the respondent.
Your petitioner further states that the respondent was guiltyof the offence of undue influence in that he himself, his agents, andother persons acting on his behalf with his knowledge and consent did,before and during thesaid election, threaten to inflict temporal damage,harm and loss upon persons in order to induce or compel the saidpersons to refrain from voting at the said election.
Your petitioner further states that the respondent was guilty ofthe offence of bribery in that he himself, his agents, and other personsacting on his behalf with his knowledge or consent, before and duringthe said election, directly or indirectly gave or agreed to give moneyor valuable consideration and procured orendeavoured to procure office,place or employment to electors in order to influence the said electorsto cast their votes in favour of the respondent
I will deal with the charges in the above order. First, however, I willstate very briefly the circumstances attending the election which are notin dispute. The respondent was the sitting member for the Kandy
172
WINDHAM J. —Ilangaratne v. O. E. de Silva.
Electoral District, and was at the same time the Minister for Health.He had had a long .and distinguished political career, and he was, and inthe 1947 election stood again as, the candidate for the UnitedNational Party. The petitioner Mr. Ilangaratne, aged 34, had until 1947had an inconspicuous career in the Government service, and was thenserving as a clerk in the Lands Department in the Kachcheri in Kandy.In 1945 he had been elected President of the Kar.dy branch of the ClericalService Union, and in March, 1947, he became President of the wholeUnion. He presided at a Public Servants’ rally on the Galle Face Greenon May 28, 1947, and as a result of this he was interdicted, together withothers. A general strike of public servants ensued, as a protest.Mr. Ilangaratne tendered his resignation from Government service,but it was at first refused pending disciplinary proceedings against himfor his having taken part in the meeting of May 28 contrary to PublicService Regulations. He pressed to be dismissed from GovernmentService, having now decided to contest the Kar.dy seat in the pendingelection, and eventually on July 23 he was dismissed, the sole groundfor his dismissal being his unauthorised participation in the meeting ofMay 28. He handed in his nomination paper as a candidate for theKandy seat three days later, on July 26, that being nomination day.
The election campaign was a short one, lasting a bare four weeks,polling day being August 23. Towards the erd of it, namely from theevening of August 14 until four or five days later, unprecedented floods,due to excessive rainfall, occurred in much of the low lying areas in theelectorate, destroying many houses and necessitating the removal of thehomeless inhabitants into improvised refugee camps within the electoralarea. Whether the circumstances attending their billeting in these camps,prevented the election from being a free one is the subject matter of tbefifth ground of petition No. 4. In all events the floods had subsidedby election day, August 23, although most of the refugees, still homeless,remained in the camps ; they were, however, given all facilities to go to thepolls.
I will now turn to consider the first ground for avoiding the electionnamely paragraph 3 of petition No. 4. Evidence has been called to provethe maiding and publication of three false statements of fact in relationto the personal character ar.d conduct of the petitioner Mr. Ilangaratneunder this head.
The first of these is the making of such a false statement by therespondent himself in a speech at M&panawatura, in Kandy, on July 27,1947, at an election meeting which about 150 persons attended. Thepetitioner’s main witness to this was a police officer, Sergeant A. M.Ratnayake, who upon orders from his superior, the Superintendent ofPolice of the Central Provicne, Mr. J. G. de Saram, attended the meetingand submitted a written report of it on the same night. This reporthas been produced by Sergeant Ratnayake in evidence as exhibit P 1.According to it, the respondent during the course of his speech said that“ one person who had served in the Kachcheri for 17 years had come tothe field, and further said that the Kachcheri is a place where one has togive bribes to get anything done and that tbe candidate, who had,collected some money which he had taken as bribesfromthe poor people,
WINDHAM J.—Ilangaratne v. Q. E. de Silva.
173
had come forward to contest a seat in. the Parliament”. If this allegationwas in fact made, it was a clear imputation that the petitioner Ilangaratnehad taken bribes. He alone of the three candidates opposing therespondent, had worked in the Kachcheri, and he had admittedly workedthere for a number of years. His recent notoriety made the electoratewell aware of this. It is true that in fact he had not served in theKachcheri for as long as 17 years, but had been in Government Servicefrom 1934 to 1939 and thereafter in the Kandy Kachcheri ; but I attachno importance to this slight inaccuracy. Secondly the statement was afalse one. There was no attempt on behalf of the respondent to provethat Mr. Ilangaratne had ever taken a bribe; and all the evidence withregard to his moral character, on both sides, negatived such a possibility.Mr. Ilangaratne himself denied it in evidence, and I accept his denial.
A legal point was raised on behalf of the respondent that the report P 1ought not to have been admitted in evidence at all, because SergeantRatnayake himself did not in specific words repeat from the box thepassage in it which is relied on, or say that he in fact heard those wordssaid by the respondent at the Mapanawatura meeting, although he didsay that P 1 was a true report of what happened when I was there ”.This objection was not raised at the time, but in his closing addressMr. Jayasunclera for the respondent drew attention to a passage in theIndian case of Jagan Nath Luthra v. Emperor, reported in All IndianReport {1932) Lahore, page 7, to the effect that where a police witnesshas made a written note of something which has been said to him, it isnot enough for him to point to the note and say ‘‘that is what was said”,unless he goes on to say that he had forgotten what was said. But in thepresent case the record was, as it was not in the Lahore case, an officialone, and was thus admissible under section 35 of the Evidence Ordinance.Moreover the exact point is covered in the following passage from thejudgment oi" Fisher C.J. (in a bench of three) in King v. Silva1. “ As to
. primarily, the only evidence of witnesses called at a trial which thejury are entitled to take into consideration is the evidence then givenby them in the witness box. This general rule is, of course, subject tosome qualifications. For instance, if in the course of giving evidenceat the trial a statement whether verbal or reduced into writing whichcontains relevant facts previously made by a witness is specificallyput to him as having been made by him. and he admits that he made itand that what he stated therein is true, the relevant facts in the statementmay be treated as if they had been deposed to in the ordinary way. Thisis not really an exception to the general rule, because in effect the witnessrepeats what he had previously said ”. Lastly, I do not consider thatSergeant Ratnayake’s report, P 1, is any the less admissible from the factthat his original rough note made during the actual course of therespondent’s speech, and (apparently) a rough draft of the report madeimmediately afterwards, have since been lost or destroyed. Nothingin the law requires the production of the rough note or draft of such areport. It is the report itself which is admissible under section 35 of theEvidence Ordinance. It would, of course, have been possible forRatnayake, after attending the meeting, to have wrongfully inserted in
1 (1928) 30 N. L. B. 193 at p. 194.
174
WINDHAM JT.—Ilangaratne. v. G. E. de Silva.
PI an allegation that the respondent in his speech had accusedMr. Ilangaratne of taking bribes ; but it was not even suggested to himthat he did so.
And that brings us to the question of credibility. On the respondent’sside the respondent himself, and his son Mr. Fred de Silva, then Mayor ofKandy, denied that the respondent had made the allegation of bribery.■So also did the respondent’s witnesses Kahapola, Romanis Perera, andRajapakse. But mere numbers count for nothing, and of all thesewitnesses on both sides, the only one whose evidence in my view was notlikely to be biassed or partisan was the only one who made a writtenresume of the respondent’s speech on the spot, when it must have been•fresh in his memory, namely Sergeant Ratnayake himself. SergeantRatnayake’s evidence must by considered, therefore as the most reliable,unless it can be shown that he too was biassed. This in my view therespondent has failed to show. I accept the evidence of SergeantRatnayake, and of his report P 1, for the following reasons:—
First, he impressed me as a truth-telling witness. Secondly his reportalone was official and contemporaneous ; and although not speciallytrained in precis writing, he had been doing this kind of work for somethree or four years. Thirdly, the witnesses to the point called for therespondent admitted or betrayed themselves as being his supporters,and accordingly their evidence was not so readily acceptable ; briefly,I find myself unable to accept it. Fourthly, Sergeant Ratnayake’ssuperior, Superintendent de Saram, whose evidence I accept in its entirety,stated in evidence that Ratnayake was a very efficient and trustworthyofficer and that he had no reason to believe he was favouring Mr. Ilanga-ratne at any time.
Fifthly, I am unconvinced by the evidence of Mr. Fred de Silva that hehad seen Sergeant Ratnayake talking to a man on the eve of the election,and had suspected him of canvassing that'man. Mr. Fred de Silva was avictim of conflicting loyalties,-—loyalty to the truth, and loyalty to hisfather ; and regrettably though understandably I must conclude that the' latter prevailed, and that he has attempted to show that the evidence ofRatnayake, which if true would be damning to the respondent’s case,was the fabricated evidence of a partisan. Mr. Fred de Silva states thathe complained to Superintendent de Saram, before the election, that hehad seen Sergeant Ratnayake apparently canvassing ; but Mr. de Saramdenies this, and I must accept his denial. It is significant that theincident was not put to Ratnayake in the box in cross-examination, as itought to have been. He was asked generally if he had done any can-vassing and he denied it. But from the fact that this pajticua lr incident—which even if true could well have had an innocent explanation—was notput to him, I can only conclude that it was an invented afterthought,designed to discredit Ratnayake. Moreover Mr. Fred de Silva statesthat he spoke to the man to whom Sergeant Ratnayake had been talking,and that what that man told him confirmed his suspicions. He says thatthe man’s name was Martin. And yet that man has not been called togive evidence. No reason has been given for his not having been calledto testify that Ratnayake was indeed canvassing him and not merelytalking to him. And Mr. Fred de Silva’s own evidence on the incident,
WINDHAM J-—llangaratne v. Q. E. de Silva.
175
even if true, shows nothing against Satnayake. For similar reasonsI reject the evidence of the respondent’s witness A. E. de Soysa, that hehad seen Ratnayake on more than one occasion visiting Mr. Hangaratne’shouse. This was put neither to Ratnayake nor to Mr. llangaratne. Iconsider that the allegations against the police generally, in this case,and against Sergeant Ratnayake in particular, were unwarrantable andimproved.
The sixth reason which leads me to accepting the evidence of SergeantRatnayake and of his report PI is a consideration of the questionwhether the respondent was a person who would be likely to make suchan allegation of bribery against Mr. llangaratne in the heat of an electionspeech,—that is, even if (though I conclude otherwise) it was not madedeliberately of set purpose. And from an observation of him in thewitness box, after making all allowances for the strain to which thispetition must have been subjecting him, and for his ill-health, I thinksuch an allegation was in character. An irascible temperament such aswould cause a person to make in the heat of the moment unfoundedaccusations against those who are thwarting him is by no meansincompatible with the aggressive qualities which no doubt have enabledthe respondent to render his acknowledged valuable services to hiscountry- And such a temperament he showed himself to possess evenwhile giving evidence. Time and again he threw out general accusationsof iniquity against all and sundry which he was unable to support, andsome of which he appeared shortly afterwards to have forgotten havingmade. His protestations in the box that he would never have accusedMr. llangaratne of bribery because he had no grounds for supposingthat he took bribes, were for this reqson unconvincing. I consider that,on his own testimony and demeanour alone, it is far from unlikely thathe made such an accusation against Mr. llangaratne at a time when thelatter, whose opposition he had at first treated with amused contempt,was beginning to show that, though an “ upstart ”, he was an opponentto be seriously reckoned with, and without delay.
Lastly, the evidence goes to show that this accusation of briberydid not merely slip out in an unguarded moment, for it was made againstMr. llangaratne not only orally by the respondent in his speech atMapanawatura, but also in pamphlets distributed by the respondent’sagents, or with his knowledge, as I shall proceed to show in dealingwith the remaining two cases of publication of the same allegation.
On all these grounds I am convinced beyond reasonable doubt, and Ifind as a fact, that the respondent did at the Mapanawatura meeting onAugust 27, 1947, during the election campaign, made the above falsestatement of fact in relation to the personal character and conduct of thecandidate llangaratne. That it was made for the purpose of affectingthe latter’s return admits of no reasonable doubt, having regard to thecircumstances in which it was made.
Only one point remains to be considered, namely that paragraph 3 ofpetition No. 4 alleges the false statement to have been not merely thatMr. llangaratne had accepted or obtained illegal gratifications, but thathe had “ consequently been dismissed from (Government) Service ”.This latter part of the charge was not proved, for it did not form part of"
176
WINDHAM J,—llangaratne v. O. E. de Silva.
Sergeant Ratnayake’s report. Nevertheless I do not consider that thecharge as a whole must therefore be held to be not proved. The sting ofthe false accusation against Mr. llangaratne was that he had takenbribes, and this alone was sufficient to constitute an offence under section58 (1) (d) of the Ceylon (Parliamentary Elections) Order in Council, 1946.The unproved remainder was mere surplusage. These observations willapply equally in the case of the remaining two instances of the publicationof the same false accusation, which now fall to be considered.
On these grounds I hold that the respondent has committed a corruptpractice as defined in section 58 (1) (d) of the Order in Council, with theresult that, in virtue of the provisions of section 82 (3) he will be subjectto the incapacities set out in section 58 (2). And in accordance withsection 77 (c), the election of the respondent as member of the Kandyelectoral district in 1947 is declared void.
The second form of publication of a similar charge of bribery againstMr. llangaratne by the agents of the respondent, or with his knowledge,in proof of which the petitioner has adduced evidence, is the distributionof an election pamphlet, which was produced in evidence as exhibit P 2.The relevant passage in this document (the original of which was printedin Sinhalese) after making an express reference to Mr. llangaratne,continues—“ What service has this gentleman rendered to his country orthe people ? We know he was a clerk in the Kandy Kachcheri; theservice rendered by him is the expectation of a “ pugga ” (bribe) of evenIts. 2 (two rupees) when we the suffering went to obtain a Rice RationBook .” This is clearly a false statement. As I have
observed already, it is not even contended for the resp8n'dent that it istrue; moreover Mr. llangaratne, though he was employed in theKachcheri, worked in the Lands Department, and never in a departmentwhere he had anything to do with the issue of rice ration books. Therespondent in evidence himself admits that if this pamphlet P 2 wascirculated, it must have done Mr. llangaratne a lot of harm. Indeed,in view of the respondent’s narrow majority ever him, it may well havetipped the scale against his victory.
What, then, is the evidence regarding the publication of this documentP 2, to prove that it was published by the respondent, or with hisknowledge or consent, or by any agent of his ? To begin with, there wasthe.police witness, Police Sergeant Fernando. No attempt was made toshow that he was a partial witness, and I accept his evidence. He statesthat he saw copies of this document (produced by him as exhibit P/8a,but identical with P 2) being distributed on nomination day, July 26,immediately after nomination. He did not know who distributed them,nor even whether the distributors were supporters of the respondent,though he presumed from the tenor of the document that they were.His evidence, however, establishes that the document was in existenceon that day. It is corroborated by the evidence,of Mr. Uangaratnehimself. I may say at this stage that Mr. Hangaratne, though naturallya far from' disinterested witness, impressed me favourably and that,subject to a tendency to feel slighted where no slight was intended(understandable in view of the overbearing and contemptuous attitudeof his formidable opponent), I consider that he was telling the truth
Wi-NUHAM J.—Ilangaratne v. G. E. de Silva.
177
throughout. He stated that on nomination day he saw P2 beingdistributed at the Kachcheri by one David Pinto, whose name appearson it as the author, and that a copy of it came into his hands on thefollowing morning. I accept this evidence.
The next witness on the point was the Police Sergeant Ratnayake,whose evidence with regard to the respondent’s speech at the Mapana-watura meeting on July 27, we have already considered. He states thathe saw P 2 being distributed at that meeting, and in fact he inserted a-statement to that effect in his report P 1, attaching to it a copy of P 2.He stated in evidence that the names of the two persons whom he saw-distributing it were Romanis Perera and Kahapola. Their names were-only elicited from him in re-examination, Counsel for the respondenthaving declined to elicit them in cross-examination upon being told thatthe witness knew who they were. The respondent subsequently calledthose two persons, who denied having distributed them. I prefer, how-ever, to accept the evidence of Sergeant Ratnayake on the point.Romanis Perera admitted having spoken at this meeting at the respond-ent’s roquest. Kahapola admitted that he (Kahapola) was the respond-ent’s agent stating that he had taken the respondent round to variousareas in the electoral district during the campaign, and that “ hegenerally asked me to supervise various areas and see to the workingof the election” and that the respondent had asked him to do canvassingfor him while he (the respondent) was in Colombo, and that he had in factworked for him. This, I consider, establishes that Kahapola was a generalagent of the respondent.
The above evidence, which I accept, makes very probable the evidence-of the next witness, one W. Ratnayake (who appears to have no connec-tion with the Police Sergeant with the same name). He was admittedlyan active supporter of Mr. Ilangaratne ; at the same time I .accept' hisevidence, not merely because he impressed me as speaking the truth,but also because it is rendered probable by the evidence of the distributionof P 2 to which I have already referred and by further evidence to whichI will presently refer. The evidence of W. Ratnayake is to the effectthat he attended a meeting of Mr. Ilangaratne at the Esplanade, Kandy,,on August 1, and that at the meeting the pamphlet P 2‘was distributedby two supporters of the respondent, namely Daniel Pinto (whose name,as I have already mentioned, appears at the foot of it as the author) andone Devendra. He also states (and I accept his statement) that he sawPinto distributing P 2 at the respondent’s meeting on August 20, and atother meetings too. Mr. Ilangaratne himself corroborates that he sawDevendra distribute P 2 at his meeting on August 1.
Finally, we have the police report P 10, of Police Constable M. K.Rajah, the accuracy of which is not challenged, to the effect thatMr. Ilangaratne, in one of his own election speeches delivered on the verynext day, August 2, emphatically denied the allegations of bribery whichhad been made against him, saying—“ I hear that I am alleged to havetaken bribes at the rata of Rs. 1 -50 for changing one rice ration book,but I tell you this is a great lie. I have never worked in the Food ControlDepartment during my service in the Government. Then how was it-
ns
WINDHAM J.—Ilangaratne v. G. E. de Silva.
possible for me to take bribes for changing rice ration books? ” Can itseriously be doubted (notwithstanding that P 2 mentions bribes of“even Rs. 2 ”, and not Rs. 1-50) that this denial had reference to therecently circulated P 2. Mr. Ilangaratne states in evidence that it didrefer to P 2, and I entirely believe him.
All the above evidence, which I accept in preference to the evidence ofthe respondent’s witnesses that P 2 was not distributed as alleged for thepetitioners, and in preference to the respondent’s improbable assertionthat he never allowed pamphlets to be distributed at his meetings,proves to my mind beyond any reasonable doubt that the pamphlet P 2was published, that is to say distributed to the public, by agents of therespondent and with his knowledge, for the purpose of affecting the return•of Mr. Ilangaratne.
Much stress has been laid by Mr. R. L. Pereira for tbe respondenton the fact that Councel for the petitioner failed to call what wouldhave been the very best evidence directly to saddle the respondent withresponsibility for the publication of P 2, namely, Daniel Pitno, thealleged author and distributor, Devendra, another alleged distributor,and William Silva, who was the proprietor and manager of the TilakaPress, Kandy, where P 2 purported to have been printed. The namesof theso persons were on the list of witnesses both of the respondent andof the petitioner. No doubt, under section 114 (/) of the EvidenceOrdinance, the Court is entitled to presume that their evidence wouldhave been unfavourable to the person who withheld it, and no doubtit was the petitioner who in the first instance withheld it. But the Courtis not required to presume that it would have accepted the evidence sowithheld. And a Court trying an election petition cannot be blind to thefact that the reason why a petitioner omits to call witnesses who mightseem best calculated to support his case is frequently, as I am convincedthat it was in the present case, because such witnesses have indicatedthat they will decline to give evidence in his favour,—evidence wherebythey might inculpate themselves in the commission of a corrupt practice.It would be quite unreasonable for a respondent cynically to argue thatthe petitioner ought to call such witnesses. The petitioner in the present“ case did attempt this course on one occasion, when he called the witness
K.D. Karunaratne, known as James, alias“ Times”, who failed to givethe evidence for which he had been called, and instead gave evidencewhich was" palpably false and bore every indication of having beensuborned. In the present case, for the reasons which I have given, I holdthat the petitioner, upon the evidence which he did produce, has shownbeyond reasonable doubt that P 2 was published by the respondent’sagents and with his consent. I do not say that the burden ever legallyshifted upon the respondent to call those witnesses Daniel Pinto,Devendera and William Silva, to refute the body of circumstantial•evidence against him; but I do say that the fact that the respondent•did not see fit to call any of them is a further circumstance which goes toreinforce the case which the petitioner has established against him. It isto be noted that Daniel Pinto and the Tilaka Press had admittedlywritten and printed, respectively, other election literature for 'therespondent.
WINDHAM J.—Hangaratne v. G. E. de Silva.
179
I accordingly hold that by the publication of the false statement P 2,.the respondent again committed a corrupt practice as defined in section58 (1) (d) of the Ceylon (Parliamentary Elections) Order in Council, 1946,with the same legal results as I have indicated in the cace of his oral falsestatement with which I have already dealt.
The third charge of publication of a similar allegation of bribery againstMr. Hangaratne by the respondent concerns a pamphlet which has beenproduced by the petitioner’s witnesses as exhibit P 7. This pamphlet,which is in Sinhalese, bears a portrait of the respondent, Mr. George E.de Silva, upon the front page. The passage in it which is said to consti-tute a false statement of fact in relation to the personal character andconduct of Mr. Hangaratne reads as follows :—“ The people have alreadyunderstood the object of funny attempts of helpless people who havenever rendered any service to society but whose only claim to greatnessis their criticism of public workers—in trying to discredit such greatpatriot as Mr. George E. de Silva. What a great folly it is on the part oflow individuals who when in Government service cultivated the disgrace-ful practice of taking bribes ranging from a salted Kumbalawa (herring)to a Tea Estate, to expect the confidence and votes of the public ? Whatgood can the public expect of such low base people who had made it their-profession to take illegal gratification from a drop of ink to a bag of moneyand who taking advantage of an accidental opportunity hope to enterParliament and as heroes expect to have the life of a prince ? ”
Now although the above passage makes no mention of Mr. Hangaratneby name, there is no doubt whatsoever in my mind, if only from the factthat Mr. Hangaratne was the only opponent of the respondent who hadbeen in Government Service, that it was intended to be a deliberatereference to him, and that anybody of the electorate who read it, knowing(as they must have known from the recent notoriety of Mr. Hangaratne inconnection with the strike of Government Servants) that he had been inGovernment employ, would take it as being an allegation that he wasin the habit of taking bribes while so employed. Its affinity with theidentical accustations against him with which we have already dealt willat once be noted.
This pamphlet P 7 is headed “ Vijaya ”, and immediately beneathappear the words “ 1947—August—Special Supplement—No. 3 Thearticle in which the offending passage occurs, which constitutes the entirepamphlet with the exception of the front page (save for certain verses)and which commences -with a eulogy of the respondent, purports to bewritten by “ an elderly patriot ”. Now in the respondent’s electionreturns (exhibit P 22) there appears a receipt (exhibit P 24) signed withthe name B. Amarasiri, worded as follows :—" Received from the Hon’bleMr. George E. de Silva the sum of Rupees two hundred and fifty (Rs. 250)-being the full amount due to me for the five thousand copies of thepamphlet called Vijaya supplied to him ”.
The petitioner contends that this receipt P 24 refers to the copies of the“ Vijaya ”, P 7, containing the libellous statements against him, and alsothat P 7 was in fact distributed by the respondent’s supporters at morethan one meeting, namely, at two held on behalf of the respondent and.one in support of the petitioner, and that a speaker recited from it at a
180
WINDHAM J.—Hangar at ne v. {*. B. de Silva.
meeting attended by the respondent. The respondent denies the distri-bution of P 7 at any of these meetings, and the recital therefrom, andwith regard to the receipt P 24, he alleges that this was given not inrespect of the printing of P 7, but for the printing of a different andentirely innocuous number of Vijaya ” which was produced as exhibitR 32. This document, like P 7, bore on its front page a photograph ofthe respondent, but in addition it bore a photograph of the Primo Minister,Mr. D. S. Senanayake.
Now with regard to the distribution of P 7 at meetings, five.witnesses(including Mr. Ilangaratne himself) testified, and after considering theirevidence and also the denials of the respondent and his witnesses, I haveno hesitation in accepting that called for the petitioner. There was alsothe evidence of Police Sergeant Rajah, entirely impartial and reliable,that a copy of P 7 came into his hands before election day, and this disposesof any suggestion that it was a post-election fabrication. With regard toits distribution at meetings, Mr. Ilangaratne, corroborated by the witnessW. A. M. Charles Perera, states that he saw it being distributed at one ofhis own meetings, organised by the communists, at the Phoenix TeaGardens, on August 19. The witness K_. Michael Perera, who impressedme very favourably, states that he saw it being distributed at one of therespondent’s meetings, at which the respondent spoke, at Asgiriya, onAugust 10. He was sure it was a Vijaya ” but was a little doubtfulwhether it bore one, or two, photographs on the front page ; since,however, Counsel for the respondent did not suggest to him that it mighthave been R 32, I have no hesitation in concluding that it was the“ Vijaya ” P 7. Lastly the witnesses Ranasinghe and W. Ratnayakeand K. Michael Perera stated that they had seen P 7 being distributed,and also being recited from by a speaker named Nissanka who statedthat he was reciting from the “ Vijaya ”, at the respondent’s meetingat the Phoenix Tea Gardens on August 20. The above evidence, as Ihave said, I accept ; and I reject the evidence called for the respondentto contradict it. Not one of these witnesses, it is true, stated by whomhe saw P 7 being distributed, with the-exception of Ranasinghe, who saidthe distributor was that very unsatisfactory witness to whom I havealready referred in another connection, namely James alias “ Times ”.Their evidence as to the distribution alone, therefore, is insufficient toshow beyond a reasonable doubt that P 7 was distributed by any agentof the respondent, and, since there was no positive evidence that thereciting from it at the respondent’s meeting of August 20 took place afterthe respondent’s arrival at that meeting, it is likewise insufficient to showthat P 7 was distributed with his knowledge or consent.
Nevertheless, if the innocuous electioneering pamphlet “ Vijaya ”,R 32, had not been produced for the respondent, the above evidence ofthe distribution of P 7, and the reciting from it at the respondent’smeeting, when coupled with the receipt P 24 given by the respondenton August 17 for “ five thousand copies of the pamphlet Vijaya suppliedto him ”, and the attendant circumstances (including the similar libellousstatements already considered) would have left no reasonable doubtthat the “ Vijaya ” to which the receipt referred was P 7, and wouldthus have brought its publication home to the respondent. Now R 32
WINDHAM J.—Ilangaratne r. G. E. de Silva.
181
■was first produced only after the petitioner’s case had closed. To not•one of the petitioner’s witnesses who spoke to P 7 was it suggested incross-examination that what they had seen was not P 7 but R 32. Thiswould appear to lend colour to the suggestion urged on behalf of thepetitioner that R 32 was an afterthought,—a fabrication to which theotherwise damning receipt P 24 might be innocently linked. Admittedlyit is not the respondent’s case that it was R 32 which was distributedat the meetings and not P 7. The respondent’s case is that, whatevermay be the position as regards the distribution of P 7, (though he deniesits distribution and the recital from it) the petitioners have failed to provebeyond a reasonable doubt that it emanated from him or his agents. Asto R 32, his case is that this was the document to which the receipt P 24referred, antf^|hat while a large number of copies of it were distributed,he does not seek to establish that they were distributed at electionmeetings. It was not therfore incumbent upon the respondent to suggestto the petitioner’s -witnesses that it was R 32 which they had seen being•distributed rather than P 7, and thereby to disclose his defence. And asregards the receipt P 24, its wording is as applicable to R 32 as it is to P 7.
There are, at the same time a number of features in the evidenceconcerning R 32 which lead me to the suspicion that it is a fabrication.First of all, the respondent’s own story of how he came in August toorder the article in R 32 to be written and published by a Buddhistpriest B. Amarasiri (whose name it will be recalled, appears as the giverof the receipt P 24), with the mediation of one Ratnayake (not either ofthe petitioner’s witnesses of that name), seemed to me to be a little tooneat and plausible a reconciliation of R 32 with P 24 to be convincingthough taken alone it was not a palpably false or improbable story.
Secondfy, of the number of witnesses (including Mr. Fred de Silva,the respondent’s son) who, having each been obviously called for someother purpose, testified that they happened by chance to have seencopies of R 32 either being distributed (not at meetings) or lying invarious offices, not one carried conviction. When it came to this aspectof their evidence, each one of them gave every indication, by his de-meanour in the box, of telling a coached story, in short, of lying. Someof them furthermore made the incredible allegation that they had neverdiscussed R 32 with, or been shown R 32 by, anybody at all since thetime they saw it, in August, 1947, until they got into the witness box.. Iam unable to believe any of these witnesses on the point. Nor can Ibelieve the respondent himself on the point. His testimony on the■question of his election literature was of very little value because•although he was his own election agent, he confessed that he kept nocomplete file of it, and that it was his clerks who got it printed.
Thirdly, it is true that the name of the Rev. B. Amarasiri, whichappears as the donor of the recipt P 24, appears in R 32 as the authorof the article therein, whereas it does not appear in P 7. That, of caurse,is equally consistent with R 32 being genuinely the pamphlet to whichthe receipt P 24 referred and with its being fabricated so as to make itseem so. When the petitioner’s witness Lokubalasuriya, howevor,whose direct testimony I accept, stated, that he had visited theRev. B. Amarasiri, and that the latter had shown him the “ Vijaya ” P 7
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WINDHAM J.—IlangartUne V. 6. B. de Silva.
and that he (Lokubalaauriya) has seen on the same file as contained P 7,other numbers of the “ Vijaya ”, produced as exhibits P 36 to P 39,.Counsel for the respondent never showed him R 32 or suggested that it wasR 32 which he had seen on Amarasiri’s file and not P 7. This would havebeen his proper course had he wished to rebut the strong circumstantialcase made out by the petitioner—I refer to the distribution of the“ Vijaya ” P 7 at meetings, the recital from it, and the giving by Amarasirito the respondent of the receipt P 24 for 5,000 copies of the “ pamphletVijaya supplied to him One is left with a strong suspicion either thatR 32 was not yet in existence, or at least that reliance upon it was adefence decided upon and prepared at the last moment, after it hadbecome clear that the original defence (which would seem to have beenthat P 7 did not refer in sufficiently express terms to Mr. Hangaratne)was not likely to carry much weight.
Lastly, the respondent did not himself call Amarasiri, nor any officialof the “Weerawardena'r press which purported to have published R 32.The petitioner could not have called the latter, of course, since R 32 wasonly sprung upon him after the close of his case. With regard to-Amarasiri, who was called by neither side, my earlier observations onthe subject of the non-calling of the witnesses, Daniel Pinto and WilliamSilva, apply equally here. If Amarasiri did write or print the libellous P Tthe petitioner could hardly expect him to come into Court and admit it.He was entitled to rely on the strong circumstantial evidence which hewas able to adduce. The same consideration applies to the non-callingby the petitioner of Herbert Samarasena of the Vijayasekera Press,whose name appears at the foot of P 7 as its printer and publisher.
In short the respondent’s evidence with regard to R 32 having provedentirely unconvincing we are left with the case of the petitioner, basedon the very strong circumstantial evidence which I havealready reviewed.Upon this evidence I am convinced beyond any reasonable doubt, andI hold that the pamphlet P 7 was published by the respondent, forthe purpose of affecting the return of Mr. Hangaratne (the circumstancesleave no room for doubt as to the purpose of its publication), that itcontained a false statement of fact in relation to Mr. Ilangaratne’spersonal character and conduct, and that accordingly the respondenthas committed a third corrupt practice as defined in section 58 (1) (d)of the Ceylon (Parliamentary Elections) Order in Council, 1946, withthe same legal results as I have indicated in the case of the two corruptpractices with which I have already dealt.
I turn now to paragraph 4 of petition No. 4. Of the charges set out inthe particulars under this paragraph, the only one in respect of whichevidence was tendered (save for one which is bound up with a charge ofbribery in petition No. 5, with which I will deal later) was that the sumof Rs.144 was paid to one K. W. Daivd, of a Socony Petrol Stationin Kandy for petrol supplied on the order of Mr. Fred E. de Silva (therespondent’s son and the then Mayor of Kandy) for furthering therespondent’s candidature, between August 17 and 23, 1947. Themain evidence called for the petitioner on the point was that of theclerk of the petrol station concerned, and it amounted to this that Mr.Fred de Silva had paid out of his own pocket an amount of Rs. 100 for
WINDHAM J.—Ilangaratne v. G. E. de Silva.
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petrol supplied to certain private cars upon chits issued "by him. Owingto the floods, the ordinary petrol rationing system, against coupons,was suspended, and petrol was issued only to municipal vehicles, or, upon-chits issued by the Mayor, to cars requiring it for the purpose of reliefwork among the victims of the flood. The suggestion made on behalf-of the petitioner is that the petrol so paid for was supplied to these carsfor the purpose of their doing electioneering work for the respondent,and not flood relief work. It is argued that if they had been engaged inflood relief work, there would have been no need for Mr. Fred de Silvato pay for their petrol out of his own pocket, but that he could havecharged it to the Mayor’s Relief Fund, which existed for the purposeof financing flood relief. But no cogent evidence wm adduced to showfor what purpose these cars were issued with the petrol or what workthey proceeded to do on it ; and upon considering all the circumstances,I am quite prepared to accept the explanation which Mr. Fred de Silvagave in the box, namely that although he paid personally for this petrol,which he could have charged up to the Mayor’s Relief Fund, neverthelessthe cars to which it was supplied required it for the purpose of floodrelief work only. The petitioner has certainly failed to prove this chargepositively ; at most he has done no more than to raise a suspicion. The-charge accordingly fails.
The next charge in petition No. 4 arises, as I have stated earlier, out■of the circumstances attending the unprecedented floods which beganon the evening of August 14, and lasted for some four or five days, thatis to say until four or five days of the election. It is uncontested thatthese floods occurred, and that they destroyed many houses in a largenumber of low lying places in the electoral area, affecting upwards of3,000 persons and rendering about 1,000 of them temporarily homeless.Some of these persons sought refuge with relations in unflooded areas,but the majority of them were housed in temporary refugee camps.They were not (as was alleged in the particulars) forcibly removed bythe police, but most of them can have had no alternative but to be housedin these camps. Nor were they, as further alleged in the particulars,segregated in the camps. Both the respondent himself, in his capacityas Minister of Health, and still more his son Fred de Silva (well knownto the electorate as his agent and supporter) in his capacity as Mayorof Kandy, naturally played a prominent part in arranging for the accom-modation of the refugees and for their welfare. It is contended for thepetitioner Ilangaratne that by reason of the circumstances attendingthe flood, the refugees were not in the mood for voting ; and secondly,that they would naturally place to the personal credit of the respondenthis official activities in seeing to their welfare, and those of his son,which would give him an unfair electoral advantage over his opponent,who having no official ontree to their camps, might- appear to their.simple minds to be less zealous for their welfare. It is further contendedthat the petitioner and his agents were, as the respondent and his werenot, obstructed from having access to the refugees in the camps and fromcanvassing and contacting them. All these circumstances, it is argued,had the result that, in the words of paragraph (a) of section 77 of theCeylon (Parliamentary Elections) Order in Council, 1946, “ the majority
184
WINDHAM J.—Ilangaratne v. O. E. de Silva.
of electors were or may have been prevented from electing the candidatewhom they preferred On this ground the election is sought to bedeclared void.
liet us now consider these points one by one. First, it is said that thehomeless refugees were not in the mood for voting. There were witnesseswhose sincerity I have no reason to doubt, who stated that the refugeeswhom they had visited did seem to be in no mood to vote. And evenwithout such evidence it may be well imagined that the first preoccupationof most of them was the loss of their homes and possessions and evenof members of their families, rather than politics. But when we turnto ascertain from the evidence whether the inmates of these camps, andalso those other homeless persons who found refuge with friends, didin fact refrain from going to the polls, we are faced with a completelack of evidence to show that they refrained, or if so why they refrained,and such evidence as is available is more consistent with the presumptionthat they dit not. To begin with, while it appears that the numbersadmitted to the camps ran into some hundreds, there has been no evidenceto show what number of these persons, and of the other refugees, or ofother persons affected by the floods, were voters, although it wouldseem from questions put on behalf of the respondent in cross-examinationthat he admits that 44 of the refugees were voters. Still less has itbeen shown how many of such of them as were voters abstained frompolling, or that if any did so abstain it was by reason of circumstancesarising from the floods. The total number of voters on the electoralregister was 32,119. Of these, 57 -7 per cent, voted, which was a higherpoll percentage than the average for the whole of Ceylon, namely 56'2per cent. Nor was there any evidence to show that the polling percentagewas lower in those districts in the electorate which were the worst affectedby the floods. Finally, as I have said, the floods had subsided somefour days before polling day, and there was no restriction whatever uponrefugees in the camps and elsewhere from going to the polls.
Accordingly I cannot hold on the evidence that the majority ofelectorate were or may have been prevented from electing the candidatethey preferred by reason of the circumstances having prevented them fromvoting for any candidate at all. The next point to consider, however,is whether the official activities of the respondent and his son, as Ministerof Health and Mayor of Kandy, respoctively, in seeing to the housingand comfort of the refugees, gave them an unfair advantage in the eyesof the electors over the petitioner Ilangaratne and the other candidates,so that electors voted or may have votod for the respondent who wouldotherwise have voted for another candidate. Now it is not allegedfor the petitioner under this charge that the respondent did anythingcorrupt. And upon a consideration of all the evidence, including thatof the respondent himself and his son, the Mayor of Kandy, I am fullysatisfied that the first thought of both of them was the welfare of thehomeless refugees, and that neither of them, nor any of their supporters,attempted to turn their official positions and activities in that connectionto electoral advantage. The evidence of the respondent and of his sonupon this whole aspect of the case, as opposed to their evidence on suchmatters as the pamphlet P7, was candid and sincere. I am satisfied
WINDHAM J.—Ilangaratne v. O. E. de Silva.
185
that neither of them, nor any of their supporters, attempted to do anycanvassing among the refugees in the camps during the floods, feelingrightly that this was not the proper time for it. There is more evidenceto establish that the petitioner Ilangaratne and his supporters hadthemselves at least attempted to canvass among these refugees at thistime, in particular, at Kings wood College camp on the evening of August15, and I accept this evidence. There were then about 200 refugeesin that camp. By August 18, the numbers had so increased that itbecame necessary to remove them to the Military Barracks, Kandy, andthe number of refugees at those barracks between August 18 andAugust 23 (polling day) reached a maximum of 750. A smaller numberof refugees were also accommodated at camps' at Katugastota untilafter polling day.
It is alleged on behalf of the petitioner Ilangaratne that there wasdiscrimination against him and his supporters in the refugee camps,as compared with the respondent. Now it is not disputed that therespondent and his son always had free access to the camps by virtueof their official capacities. But I am satisfied on the evidence that thepetitioner and his supporters had equal access. I was not convincedby Mr. Ilangaratne’s rather lame story of his being on one occasionbullied or laughed out of his attempt to canvass at the Katugastotacamp on August 17. I also reject the evidence of U.B. Ekenayake andR. M. Abeyratne that they were forbidden to distribute ballot papers-on behalf of Mr. Ilangaratne at the Military Camp on August 21. Therewas, it is true, uneontrsdicted evidence that at the Kingswood Camp,from the evening of August 15, until the removal of its inmates to theMilitary Barracks on the 18th, candidates were told not to canvassthere. This was a very proper administrative instruction, since in theconfusion reigning in that camp during the first three days of the flood,to have allowed persons to canvass there would have created still moretrouble and chaos, as it had already begun to do on August 15. But therespondent equally with Mr. Ilangaratne was told not to canvass,though in the former’s case he had not attempted to do so. Similarly,and for similar good reasons, from August 18 to 21, Mr. Fred de Silvahimself, as Mayor of Kandy, gave verbal'instructions to Mr. Jayasuriya(who was in charge there) that no canvassing should be allowed in theMilitary Barracks Camp, while refugees were still being transportedto it. But in both cases there was no evidence to show that there wasany discrimination as between Mr. Ilangaratne and the respondent, andtheir respective followers, nor was any obstruction placed in the wayof Mr. Ilangaratne and his followers to prevent their entering the campsin order to give help or material comforts to the refugees, had they desiredto do so. On August 21, even the ban against canvassing was lifted,on the verbal instructions of the Mayor. I attach no importance tothe evidence that Mr. Jayasuriya sent to the Mayor, on August 21, butbefore receiving the latter’s verbal instructions,- a note (exhibit P 27)asking him whether the ban on canvassing should be lifted. The Mayoronly received this note after election day (August 23), having been toobusy electioneering to go to his office from 21st to 24th, and it was bythen naturally futile to reply to the note.
I8-N.L.R. Vol-xlix
380WINDHAM J.—Ilangaratne v. O. E. de Silva.
On. all the evidence I find no discrimination against Mr. Ilangaratneor the other candidates opposed to the respondent. Another matter inrespect of which it is alleged that there was such discrimination, or thatthe respondent enjoyed an unfair advantage, was in the issue of petrolfor cars for relief work, upon chits signed by the Mayor, during theperiod commencing with the floods, when the ordinary petrol rationingsystem was suspended in Kandy. Here again the petitioner has failedto show that there was any such discrimination, or unfair advantage,and I am satisfied that petrol was issued to all such cars, irrespectiveof the politics of their occupants or the electoral signs which they bore,the only criterion being their desire to bring relief to the floodvictims.
Finally, it is alleged that the respondent himself brought mats andbread and other food and provisions to the flood victims in the camps,And that this was done with the corrupt object of influencing the inmatesto vote for him. Insofar as this charge alleges corruption, it constitutes•one of the later charges, in petition No. 5, namely treating ; but it willbe more convenient to deal with it now. I am not satisfied with theevidence of the petitioner that the respondent brought food in his carto the Kingswood Camp. The respondent himself denies it ; but whatweighs even more is the evidence of a quite impartial witness,Miss Elias, who was working at the camp and states that she never sawhim bringing any food, although he visited the camp four or five times.It may well be that he brought mats ; the evidence of Mr. Ilangaratneon that point had the ring of truth. But I am not satisfied that therespondent brought them with any corrupt intention. As I have said,I am satisfied that his only motive in succouring the refugees was toalleviate their distress. Many other public spirited citizens were doingthe same thing, with the same motive. The charge of treating musttherefore fail. With regard to the bringing of provisions generally tothe refugees, the evidence goes to show that they were provided largelyby the Government and the Kandy Municipal Council, but also by allmembers of the public who desired to do so, irrespective of politicalallegiance. Indeed it is tQ be noted that the person who supplied alarger number of free meals (namely three) to the refugees at the MilitaryBarracks than any other individual, was the proprietor of the CastleBakery and Brownrigg’s Hotel, Kandy, Mr. John Weerasekera, thepetitioner in petition No. 5, a strong supporter of his fellow petitionerMr. Ilangaratne.
Can it be said, upon all this evidence, that the circumstances attendingthe floods and the housing of the refugees in camps were such that themajority of electors were or may have been prevented from electingthe candidates whom they preferred ? Did the respondent, even thoughhe may not have aimed at it, achieve through his official activities asMinister of Health, such a popularity among those of the refugees, andperhaps of the constituency generally, who were voters, as caused themajority of the electors to vote for him, although he was not the “ candi-date whom they preferred ” ? I do not think that the petitioner hasproved his case upon this charge. In the first place, as I have said, therewas no evidence that any more than 44 of the refugees had votes.
WINDHAM J.—llangaratne v. G. E. de Silva.
1ST
Secondly there is no evidence that the respondent or his supportersever told or suggested to the refugees that it was he who was bringingthem the relief to their distress, still less that they should therefore votefor him. According to the evidence of Miss Elias they appear to haverealized that it was the Government and the Municipality who wereofficially supplying them with their food. I do not think that the factof the respondent’s having been a Minister in the Government and hisson the Mayor of that Municipality can be assumed to have influencethe votes of persons in the respondent’s favour who would otherwisehave voted for any of the other candidates. Gratitude is not a qualityso widely distributed among human beings that one can safely make suchan assumption, in the absence of a shred of evidence that any one voterexpressed or showed himself to have been won over to the respondent’sside by reason of what he or his supporters had done for them duringthe floods.
Lastly, I do not consider that the forbidding of canvassing by anyparty, for the period August 16 to 21, in the refugee camps, can reasonablybe held to be a circumstance whereby the majority of electors may havebeen prevented from electing the candidate whom they preferred,particularly in view of the petitioner’s own contention that they werenot in the mood to think much about politics during that period. Theban was impartially applied, and was lifted two days before the polling..The election campaign had been going on for nearly three weeks beforethe floods began, and it must be presumed that the electors who becamerefugees had had sufficient opportunity during that time of acquaintingthemselves with the merits and politics of the competing candidates.
For all these reasons I hold that the charge set out in paragraph 5of petition No. 4, and the prayer that the election be declared void onthe grounds there set out, must be dismissed.
The final ground in petition No. 4 for declaring the election void,set out in paragraph 6 of that petition, has been abandoned by reasonof the amendment of the definition of “ public officer ” in section 3 (1)of the Ceylon (Constitution) Order in Council, 1946, effected by the Ceylon(Constitution) (Amendment No. 2) Order, in Council, 1947, wherebythe respondent became excluded from the definition of “ publicofficer ” for the purpose of Article 13 (3) (b) of the principal Order inCouncil.
I turn now to the three charges in petition No. 5. In support of thefirst of these, namely treating, the only evidence called was that relatingto the bringing of food and comforts by the respondent to the refugeecamps, and with this I have already dealt and found the charge to benot proved. The charge of treating accordingly fails.
The next charge in petition No. 5, set out in paragraph 4, is that ofundue influence. Evidence has been called to prove that on threeunrelated occasions, during his election campaign the respondent, ina fit of irascibility, upon learning or suspecting that certain formersupporters of his had gone over to the si<f e of Mr. llangaratne, threatenedthese persons, (or in one case, the son o'f the person concerned) that hewould see that they were removed fron their present jobs. The charge
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WINDHAM J.—Ilangaratne v. O. E. de Silva.
in respect of one of these three incidents has admittedly not beenestablished because there was no evidence that the person concernedj(by name Dissanayake) was a voter.
Of the remaining two incidents, the first was testified to by the witness"Piyasena, an estate dispenser, who stated that the respondent, after■endeavouring without avail to persuade him to keep his promise towork for him, threatened that he would see that he (Piyasena) wasout of the estate very soon. The witness Pethaiya corroborated theincident except as regards the vital offending words, stating that hedid not stay to hear them. The respondent himself, while admittingthe incident, denied having made the threat, and in this he was■corroborated by the witness Sunderamany. Piyasena impressed meas a witness more favourably than did Sunderamany ; and this, coupledwith the impression which the respondent made in Court as havingthe irascible temperament which might easily lead him to make sucha threat in a moment of petulence, although he might not mean to carryit out,—these considerations make it highly probable that the threatwas made. Nevertheless, viewing the conflicting evidence as a whole,
I am not satisfied beyond a reasonable doubt as to where the truth lay.In these circumstances I cannot hold the charge to be proved.
The same considerations apply in the case of the next incident, wherethe evidence consisted of the sole testimony of the witness AugustinePeiris against the denial of the respondent. The circumstances weresomewhat similar. According to Pieris, who assisted his father whowas a Postmaster in the Sub-Post Office at Ampitiya, the respondentcame into the Post Office and said to him (Augustine Pieris) “ I haveauthentic proof that your father is working against me. I have beenresponsible for giving you this Post Office. I shall see that it is sliiftedfrom here ”. Again, the words ring true to character. But in viewof the paucity of evidence,—one man’s word against another’s, 1 cannotsay that the charge has been proved beyond reasonable doubt. Andin such charges a strong suspicion is not enough. The charges of undueinfluence accordingly all fail.
Finally, we reach the last charge in petition No. 5, which is that ofbribery. Of the numerous instances of acts of bribery by agents ofthe respondent, evidence has been adduced to establish one only.This evidence, consisting primarily of the direct testimony of thewitnesses K. M. Perera and K.. B. Seneratne, is to the following effect.On about August 8th, an election committee to support the petitionerIlangaratne was formed at Asgiriya. It consisted of 35 members.On August 10th some ten or twelve of the committee met at the houseof one Abeysekera, its president, where they unanimously decided towoTk and vote for Mr. Ilangaratne. On the next day, Abeysekera sent amessage to one of the members the witness K. B. Senaratne, askinghim to tell members to assemble at his (Abeysekera’s) bungalow thatday, August 11th. At about 6.30 p.m. three of the members convenedat Senaratne’s house, namely the witness K. Michael Perera, DanielFernando and Andy Singho, and the four of them proceeded from thereto Abeysekera’s house at about 7.30 p.m. There in the verandah theyfound, with Abeysekera, one James Appuhamy, who was a stomg
WINDHAM J.—Ilangaratne v. G. E. de Silva.
189
supporter of the respondent. James Appuhamy, after advising themto cease supporting Mr. Ilangaratne and to work for the respondentcalled them inside the house and into the kitchen, and there, takingout of his pocket Rs. 100 in notes, said “Here is Rs. 100. You hadbetter see that something is done with the people here Aheysekeraprotested that the amount was too small, whereupon James Appuhamyhanded him Rs. 250 which he accepted. Immediately after the moneywas handed to Abeysekera, Mr. Fred de Silva, the respondent’s son,came in. Thus far, the evidence of K. M. Perera and K. B. Senaratnehas differed in no material particular. Thereupon, according to thewitness K. M. Perera, Mr. Fred de Silva said—“You must help myfather. James Appuhamy will see to your trouble and you must workwholeheartedly for us ”. According to the witness K. B. Senaratne,he said—“ What I have got to tell you gentlemen is that you shouldall help my father. I have nothing more to add to what I say now.Anything more will be said by James Appuhamy ”. Then, accordingto both witnesses, Mr. Fred de Silva and James Appuhamy left.Abeysekera thereupon went into a room at the back of his house, cameout again after about two minutes, and proceeded to pay the committeemembers who were present their shares of the Rs. 250 bribe. He offeredRs. 25 to K. M. Perera, who refused it. K. B. Senaratne, however,accepted (with, according to his own testimony, a show of reluctance)the Rs. 25 offered to him. According to both witnesses, the remainingtwo committee members present, Daniel Fernando and Andy Singho,took Rs. 15 and Rs. 10 respectively. As a result of the bribe, thisparticular committee broke up and Abeysekera wont over to therespondent’s side. There was never any suggestion that the respondentpersonally knew anything about the whole incident.
The evidence of the above two witnesses was corroborated by thatof L. B. Herath and S. B. Ekenayake, two other members of thecommittee, who had not been present at the Abeysekera’s house on theevening when the bribe was paid over. They state that on the followingday, August 12th, they went independently to Abeysekera’s house—Herath after hearing about the bribe from Senaratne who advised himto claim his share, and Ekanayake going direct, on committee business,being unaware of the bribe—and that Abeysekera thereupon paid HerathRs. 5, and offered Rs. 10 to Ekanayake who indignantly refused it.
Such is the evidence of the act of bribery. The whole incident wasdenied in evidence by both James Appuhamy and Mr. Fred de Silva.Both of them were of opinion that the story was a fabrication of theirenemies on the petitioner’s side, and James Appuhamy gave a reasonwhy he considered K. M. Perera to be prejudiced against him, a reasonwhich was repudiated by K. M. Perera in cross-examination.Abeysekera himself was not called to deny the story.
In deciding whether the story of the petitioner’s witnessess is to beaccepted as true, beyond a reasonable doubt, I have consideredcarefully certain factors which have been stressed by counsel for therespondent as showing that it should not be accepted. First thereis the fact that, when the particulars were first submitted, August 12thand not August 11th, was given as the date of the paying of the bribe
190
WINDHAM J.—Ilangaratne v. G. E. de Silva.
by James Appuhamy. The particulars were allowed to be amended,during the course of the proceedings, for reasons recorded. It appearsunclear whether the date given by all or any of the witnesses, originally,to the petitioner or his proctors, was 12th or 11th. Nevertheless, I donot consider this discrepancy is one which must cause me to reject thewhole story as false. It may well be that the confusion arose because itwas on the 12th that Abeysekera paid or offered to the witnesses Herathand Ekanayake their share of the bribe, and that this was mistakenlyput down as the date of the payment of the Rs. 250 to Abeysekera byJames Appuhamy. At the same time I have taken this discrepancyinto account in weighing the evidence.
Secondly, it has been contended that -it would be most unlikely fora bribe to be paid so openly, in such circumstances as would invitetestimony upon it in the event of an election petition. I have taken,this factor also into account, though I do not think it carries very muchweight.
But the matter remains mainly one of credibility. In my veiw the-evidence of the four witnesses for the petitioner, two of whom werenot accomplices, having not accepted the bribes offered to them, wasconvincing. K. M. Perera in particular impressed me favourably.James Appuhamy, on the contrary, did not impress me, and he wasat too much pains during his cross-examination to show that he wasnot interested in politics in general or in the welfare of the respondent’scandidature in particular, though he eventually admitted that he workedfor the respondent at the latter’s request. In brief, I accept the storyof the petitioner’s witnesses, in so far as it concerns James Appuhamyas true, with the result that James Appuhamy, being an agent of therespondent, is found to have committed a corrupt practice, namelybribery. That James Appuhamy was the agent of the respondent issufficiently established by his own statement that he worked for therespondent during the election campaign at the latter’s request, andby the respondent’s admission that he was his loyal supporter. Theelection must accordingly, on this ground also, be declared void inaccordance with section 77 (c) of the Ceylon (Parliamentary Elections)Order in Council, 1946.
With regard to the implication of Mr. Fred de Silva in the act oFbribery, however, notwithstanding some equivocal evidence with regardto a certain “ cash ” cheque for Rs. 250 drawn by him a few days before,I do not consider that the evidence is sufficiently strong to establishbeyond reasonable doubt his knowledge that James Appuhamy wasgoing, not merely to persuade the committee to come over to therespondent’s side, but to bribe them to do so. He is alleged to havecome on the scene only after the Rs. 250 was paid over, and there is adiscrepancy as to the words then spoken by him. Indeed, Mr. Fred deSilva’s denial of having ever gone to Abeysekera’s house at all on theevening of August 11 carried more conviction than did that ofJames Appuhamy. Without deeming it necessary to make a findingon that point, I do hold that no case has been made out against him to-enable me to hold that he was a party to this act of bribery.
BASNAYAKE J.—Chellappah v. CheUiah.
101
That concludes the case on both petitions, the result of which, asI have said, is that the election of the respondent, the HonourableMr. George E. de Silva, as member for the Kandy Electoral District,Ceylon, upon August 23, 1947, is declared void, and the respondentwill become subject to the incapacities set out in section 58 (2) of theCeylon (Parliamentary Elections) Order in Council, 1946.
After hearing counsel on the question of costs, and upon taking intoconsideration those charges upon which the petitioners have respectivelyfailed to succeed, I fix the costs payable by the respondent to eachpetitioner as follows : Rs. 7,500 to the petitioner in petition No. 4, andHa. 3,000 to the petitioner in petition No. 5.
Election declared void.