012-NLR-NLR-V-51-In-re-FRED-E.-DE-SILVA.pdf
NAGALTNOAM J.—In re Fred E. de Silva
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1949Present: HagaUngamJ.In re FRED E. de SILVA
In the Matter of the Election Petition for the ElectoralDistrict of Kandy and in the Matter of an Applicationunder Sections 74 and 75 of the Ceylon (ParliamentaryElections) Order in Council, 1945, as amendedby Parliamentary Elections (Amendment)
Act, No. 19 of 1948
Election petition—Illegal practice—Notice to show cause—Return of expenses—Can notice issue to a witness ?—Excuse—Inadvertence—Ignoranceof law■—Meaning of “ clerk ”—Parliamentary Elections Order inCouncil,1946—>Sections 68, 74, 75 and 82.
The term “ all persons ” in section 82 of the Parliamentary ElectionsOrder in Council embraces every individual who may have been provedat the inquiry to have been guilty of a eorrupt or illegal practice and isnot limited to any particular class.
A translator is not a clerk within the moaning of section 68 of (heOrder in Council.
Ignorance of the law is not inadvertence and is not sufficient groundfor relief under soctions 74 and 76.
Application for orders under sections 74 and 70 of the Parlia-mentary Elections Order in Council, 1946,
G. E. Chitty, with G. T. Samaraurickrema, for applicant.
M. Tiruchelvam, Grown Counsel, for Attorney-General as amicuscuriae.
Cur. adv. vult.
April 7, 1949. Nagalingam J.—
This is an application by the petitioner for orders under sections 74and 75 of the Order in Council allowing, firstly, the payment of Rs. 40made by him to one Ganeshan for translating his English manifesto intoTamil to be an exception from the provisions of the Order in Counciland, secondly, the failure to include the payment of the said sum of Rs. 40in the return of election expenses made by him to be an authorisedexcuse.
The application is a sequel to a notice issued on the petitioner in termsof section 82 of the Order in Council directing him to show cause whyhe should not be reported for having been guilty of illegal practice inconnection with the Kandy bye-election. The facts, evidence of whichwas given at the trial of the election petition by the petitioner himselfand which formed the basis of the notice issued on him, have not beenchallenged but evidence of certain surrounding circumstances has beenled in order to explain the conduct of the petitioner and in mitigationof it.
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Tho following facts may bo accepted as proved: The petitioner whowas a candidate at the bye-election referred to had prepared his electionmanifesto in English and in order to place the contents thereof beforethoso electors who were unacquainted with the English language andacquainted only with the Tamil language caused a translation of hismanifesto to be prepared by one Ganeshan. At the time that Ganeshanwas entrusted with the task of translation the petitioner says he had noidea that he would have to make payment for the reasons (a) that heconsidered Ganeshan to be one in sympathy with his candidature andtherefore out to assist him in his campaign, mid (6) that he regardedGaneshan as a friend of his.
On the footing, therefore, that he had incurred no liability in regardto the Tamil translation of his manifesto, the petitioner says that he sentin his return respecting his election expenses and the return in thesecircumstances contained no, and could not very well have containedAny, reference to a debt due to Ganeshan or to a claim by tho latter.Tho petitioner, however, says that about two or three weeks after hohad furnished his return to the Returning Officer, Ganeshan askedhim for payment for the translation ho had made and that he thereuponpaid a sum of Rs. 40 for such translation. Ganeshan supports thepetitioner’s statement that at tho time he undertook the task nothingwas said about payment for his services and that in fact he himselfregarded the task as a labour of love for he thought that he was doing thework for a friend and not for a fee. Ganeshan also says that at the elatehe made the translation he was a full-time employee as sub-editor of theVeerakesari, a Tamil newspaper. Ho further says that later his serviceswere dispensed with by that paper and being short of funds he appliedto the petitioner for payment for the translation and the latter readilymade payment. Tho evidence of both these witnesses thereforeestablishes that at the time Ganeshan rendered liis services to the peti-tioner it was the intention of both parties that no foe was to be paidhut after the return of election, expenses had been made payment was madefor those services and, it must therefore follow, gratuitously.
Before I enter upon a discussion of tho grounds relied upon by thepetitioner as entitling him to the relief prayed for, I shall deal with apreliminary objection raised by Counsel on his behalf; for, accordingto Counsel, if the objection succeeds, the notice issued on the petitionerunder section 82 would fail and the petitioner would not unduly beperturbed as to the result of this application. The objection taken isthat the notice on the petitioner directing him to show cause why heshould not be reported in terms of section 82 had issued per incuriam,as on a true construction of the section it would be found that thelegislature did not contemplate the reporting of persons other than (1)the successful candidate, (2) persons who with the knowledge and consentof such candidate had committed corrupt or illegal practice, (3) the agentof such candidate and (-1) the unsuccessful candidate on whose behalfthe seat is claimed. The contention, in other words, is that (l) personswho may have been proved to have been guilty of corrupt or illegalpractice but who nevertheless did not do so with theknowledge and consentof the successful candidate and (2) the unsuccessful candidate on whose
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behalf no recriminatory case had been set up, cannot be reported underthe seotion. Mr. Chitty’s argument, as I understood it, ran somewhaton these lines: He argued that sub-section (a) of section 82 dealt withthree classes of persons who were liable to be reported : (1) tho candidate,(2) other persons who had committed corrupt or illegal practice with theknowledge and consent of the candidate, (3) the agent of the candidate ;the necessity for restricting the term " candidate ” in all these casesto a successful candidate and for tho inclusion of the unsuccessfulcandidates on whose behalf seats were claimed as a separate class hebased upon the proviso to the section.
It is hardly necessary to set out in detail the logical process by whichtho result was arrived at, for the premises from which ho deduced hisinferences arc fallacious, A reading of sub-section (a) of section 82reveals only two classes or persons who could bo reported at best. Isay “ at best ” for the primary concern of the sub-section is not so muchwith persons as with offences. It requires that a report should be madewhether corrupt or illegal practice has or has not been proved to havebeen committed, not that a person or persons should be reported; ithowever proceeds to limit and narrow down the offences that are to bereported by confining them to offences committed by certain classesof persons. The reference to persons in this sub-section is thereforeincidental to the sole question whether offences have been committed,and strictly speaking, the report contemplated by sub-section (a) shouldrun not in the active or personal form but in the passive or impersonalform, that is to say, not that X has been proved to have committedcorrupt or illegal practice but that corrupt or illegal practice has beenproved to have been committed by X ; although for practical purposesone form has nothing to commend itself more than the other, neverthelessthe adherence to the proper form would tend to afford a clearer insightinto the meaning of the section and the mind of the Legislature.
In regard to the classes of persons dealt with by the sub-section, itwill be seen that it deals with two classes of persons and not with threeas contended by Mr. Chitty. The two classes are (1) the candidates and(2) their agents. It is true that in regard to candidates it is not onlyoffences committed by them that become liable to be reported but alsooffences which have been committed with their knowledge and consentby, it must necessarily be, other persons. I do not think Mr. Chifcfcyis right when ho contends that the persons who commit offences withthe knowledge and oonsent of a candidate constitute a third class ofpersons who become liable to be reported. In fact no such class isexpressly referred to in this sub-section and any such class can only beinferred, and in view of what I have said earlier it will be apparent thatpersons who with the knowledge and consent of a candidate committho offences or illegal or corrupt practice do not become liable to beroported under this sub-section. Nor can I see any reason why the term" candidate ” in this sub-soction should bo limited to the successfulcandidate alone. The words used are “ any candidate ” and there isnothing in the section whioh constrains one to limit the section to offencescommitted only to those by a successful candidate, and to exclude thosecommitted by an unsuccessful candidate. In fact, the proviso to the
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NAGALINGAM J.—In re Fred B. it Silva
section mates it quite clear, for it expressly dispenses with notice in regardto a candidate on whose behalf the seat has been claimed at the electionpetition before a report is made against him, implying clearly, therefore,that a candidate on whose behalf the seat has not been claimed ishimself liable to be reported but that before any report is madeagainst such a candidate he should be given an opportunity of showingcause against it.
Mr. Chitty's further argument was that sub-section (6), in viow of theconstruction he placed on sub-section (a), is limited to those persons whohad been proved to have committed offences with the knowledge and con-sent of the candidates and that it is only those persons who are liable tobe reported.
I do not agree that this construction is sound either. The words“ all persons ” contain no restriction whatever, and there is nothingin the context to warrant any limitation being placed on them. In fact,Mr. Chitty sought to reinforce his argument by his assertion that hehas not been able to come across a single reported case where a noticehad been issued to a person who was a witness simpliciter in an electionpetition inquiry, and not a party to it.
Mr. Tiruchelvam appearing on behalf of the Attorney-General referredto the case of Q. v. Mansel Jones1 which shows that a notice had in pointof fact issued on a witnoss, but the point that came up for considerationwas whether in view of the occur ence of the words “ by himself ” alterthe words “ an opportunity of being heard” in the provision corre-sponding to the proviso to our section 82, the party noticed had a rightto appear by Counsel or Solicitor. In that very case, there is also areference to another case of a witness being noticed to show cause. Onthe question, however, as to whether a notice can issue on a witness ora person who, though not a witness, is proved at the inquiry to havecommitted the offence of corrupt or illegal practice, with a view to repor-ting him, it is correct to say there is no direct authority, and the reasonfor that is that the language of the section is simple and admits of noargument. The proviso to the section itself is a dear pointer in thedirection that the term “ all persons ” embraces every individual whomay have been proved at the inquiry to have been guilty of corrupt orillegal practice, whether a witness or not, a candidate or not, and is notlimited to any particular class. In my view a candidate himself is liableto be reported under section 82 (6) provided the other requirements aresatisfied.
The objection, therefore, fails.
Now to turn to the merits of the application, the first contention putforward is that the payment is in itself a legal one and that it does notinfringo the provisions of section 68 of the Order in Council. It is saidthat this section permits a candidate to employ clerks and that Ganeahanwhen he was called upon to translate the English manifesto into Tamilbecame clothed with the mantle of a clerk. I do not think that a personwho is employed because of the special knowledge he has of particular» K1S80) l. R. 2'. <>. fK 2
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languages for the purpose of translating a document in one languageinto another is a clerk. A clerk is one whose function it normally isto keep accounts or to attend to correspondence. It may be that wherethe main duties of a person are strictly clerical and he is called upon,as ancillary to his main employment, to render a document in one lan-guage into another, although he may in so rendering really act otherwisethan as a clerk, may yet for all practical purposes be deemed to continuehis clerical character. But whero a person doe3 none of the normallyrecognised functions of a clerk and is not employed in a clerical capacitybut is only employed to make a translation from one language to anotherand when further it is shown, as it lias been in this case, that the personso employed pursues the occupation of a translator to add to his income,it is well nigh impossible to regard such a person as a olerk.
Learned Crown Counsel himself submitted that as the constituenciesin the country were inhabited by people speaking not one languagebut different languages, the employment of a translator may be necessaryto further one’s candidature and that the term " clerk ” therefore insection 68 should be given a very wide interpretation so as to include atranslator. I do not think I should be j ustified in assenting to this view.Learned Crown Counsel’s argument to my mind proceeds upon a fallacy.Apparently, it is assumed in the argument that English is the language ofthe constituency. I have not been referred to any provision of the lawwhich in fact supports this assumption, On the contrary, I think thereis every reason to hold, and common sense will dictate, that no onelanguage where several languages are spoken can be deemed to bethe medium for conducting an election campaign. One language mayreach a larger number of voters than another but that is faT from sayingthat the language of the majority of the voters or for a matter of that oftho minority of the voters, as in the case in this instance, is the languagewhich the law recognises as the language for the purposes of the election.
It is quite conceivable that a candidate who may have no knowledgeof the English language may wish to reach the English speaking sectionof the voters in his electorate and he may then be justified in employinga person who has a command of the English language to do an Englishtranslation of his manifesto. I do not think Crown Counsel went to thelength of saying that in such a case the English translator would alsocome within the category of clerks and that his employment too must bedeemed to be sanctioned by section 68. If Crown Counsel’s contentionis sound, in fact one might go further and contend that persons may beemployed for remuneration in order to interpret a speech delivered inone language into other languages as such persons would then fall underthe category of clerks. I do not think the argument went so far. If it bethought that it is desirable that translators or interpreters should bepermitted to be employed by a candidate, then that is a matter for theLegislature to step in and make the necessary amendments in the law.Tho Court certainly cannot torture words which have well known andwell accepted meanings into meaning something different for no purposeother than that of enabling a party to do that which it is deemed desirablehe should possess the power to do but which the Legislature has notempowered him to do.
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NAGALINGAM J.—-In re Fred E, <U Stiva
The conclusion X reach, therefore, is that a translator is not a clerkwithin the meaning of Bection 68 of the Order in Council and that thepayment to such a person offends against the provisions of that sectionand is illegal.
The next contention is that if the payment is deemed to be illegalthen the payment was made without the petitioner realising that howas contravening tho provisions of the Order in Council and as aresult of inadvertence and not from any want of good faith. That thepayment must necessarily bo deemed to have been made for the purposeof promoting the election of the petitioner has not been contested.Further, that at the time the services of Ganeshan were accepted not onlywas there no agreement to pay any remuneration for those services butthat in faot no payment was to be made for those services was whatwas within the contemplation of both the petitioner and Ganeshan ismanifest from the evidence of both of them.
The petitioner has stated specifically that he did not regard Ganeshanas his clerk. It follows therefore that up to the time that the petitionermade his return in respect of his election oxpenscea he had conductedhimself quite properly and in accordance with and without violatingthe relevant provisions of the Oder in Council. His conduct "and hisbehaviour therefore clearly demonstrate that far from not having beenaware of the provisions of tho Order in Council he had acquired a suffi-cient knowledge of its provisions. That the petitioner is a proctor ofexperience cannot bo ignored and it can hardly be said that it wasbeyond his legal attainments to have appreciated the simple provisionof the law when it says that any claim against a candidate in connectionwith the election should be sent to the election agent within the timeprescribed by the Order, namely within a period of fourteen days of thedeclaration of the polls and that any claim not so sent would be barredand that no payment should be made in respect of such a claim.
The plea of the petitioner really turns on the question whether theterm “ inadvertence ” includes a case of ignorance of the law. Theterm “ inadvertence “ has received varying meanings dependent onwhether the inadvertence was ono which was slight and excusable inthe circumstances of its commissioner whether it was grave and culpable.In the former case, ignorance of the law has been sometimes hold tobe covered by the term “inadvertence In the latter the contraryview has been expressed.
The case of Nicol v. Fearby and Nicol v. Robinson 1 illustrates the first-part of this proposition. In that case the two defendants, Fearby andRobinson, had been returned as the successful candidates at a Municipalelection. Both of them had failed to make a return of their oleetionexpenses within the poriod specified by law and continued to sit and vote.They were sued by the plaintiff as common informer to recover penaltiesunder section 21 (4) of the Municipal Elections (Corrupt and IllegalPractices) Act, 1884. Application was made to the Judge for an autho-rised excuse in terms of sub-scction 7 of the same section, which is similarto section 75 of our Order in Council. It was also found by tho Judge‘ (J023) 128 L.T.R. 662.
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that the defendants had relied upon the Town Clerk to inform them of theobligations imposed on them under che Act but the Town Clerk harbouredanimosity against both of them and deliberately abstained from informingthem of their duties. Though the defendants were each allowed tospend a sum of £48 in connection with the election, Fearby had spentonly £4 10#. 9d. and Robinson £3 19#. 6rf. In this state of facts McCardieJ. held that:
*' Ignorance of tho law may, as I have held, be inadvertent. Itdoes not follow however that relief should be given for acts or omissionsdue to ignorance of law ”
and he saw his way to granting tho applications o! the defendant.
A case of the latter class is that of Walsall1. In that case, contraryto the provisions of the Order which prohibited any payment being modefor the purpose of promoting or procuring the election of a candidateat an election on account, inter alia, of “ flags, banners, cockades, ribbonsor other marks of distinction ”, the candidate ordered and paid forprinting of hat-cards which were to be stuck on the hats of voters a sumof £2 I8s. Baron Pollock, with whom Hawkins J. agreed, refused toallow ihe application for an authorised excuse, expressing himself thus :—
” This therefore being an illegal practice, the only question is whetherit can be relieved against, on the ground of inadvertence or accidentalmiscalculation or other ground of a like nature under section 23. Ifit were once allowed that a breach of the law, in the sense that therewas a misconception of the law, is to be treated as an inadvertence,I do not know where there is to be any limit. If one man is entitledto say, 11 did this by way of inadvertence, because I did not think,or it did not occur to me, that this was a mark of distinction anothermight just as well say, ‘ Well, I know there was an Act of Parliament,and I know one of the sections was directed against music and flagsand so on, but I did not read it; somebody told me about it. Itnever ooourred to my mind that so innocent a thing as a cockade orribbon could be an illegality ‘ ”
and the candidate was unseated. So that, whether the term “ in-advertence ” includes a case of ignorance of the law depends on thecircumstances of each case. In the case of Niool v, Fearby and Nicol v.Robinson (supra) McCardy J., after referring to certain earlier decisionswhere the true meaning to be attached to the term u inadvertence ”had been considered, proceeded to say :
“ In the West Bromwich case (1911) 6 O’M. & H. at p.289 BuoknillJ.said; * I am not going to attempt a definition of * inadvertencebut it certainly does not include ignorance of the law. * Ridley J.in the same case used less definite diction. He appeared to thinkthat in some cases ignorance of the law may be * inadvertence in othercases not, and he added (0 O'M & H. at p. 287}; ‘ Inadvertence doesnot cover a case where in the immediate duty which he is performinghe ought to have a full knowledge of the law If this dictum becorrect, it follows that ignorance of the law' may be inadvertence|* i O'.M. <t- h ns.
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but that whether it in fact be so or not depends on the circumstanoes.
It is difficult to extract a principle from the decisions already cited,
unless it is to be found in the above dictum of Ridley J. ”
The petitioner should have, and must indeed be held to have known—and that is clear from his own conduct—that not only was there a timelimit for claims to be sent but also for claims to be paid and, what ismore, that the return in regard to the election expenses had to be madewithin a prescribed period of time. The slightest attention to theseprovisions would have made him pause to ask himself the questionwhat the position was in respect of claims not so preferred or paid orincluded in the return. The answer to that question he certainly wouldhave discovered when he attended to the making of his return. Itwould, therefore, be idle for the petitioner to say that he was not awarethat he was contravening the provisions of the Order when he made thepayment to Ganeshan. The more reluctant am I to take any otherview inasmuch as at the trial of the election petition one of the groundsupon which it was sought and in fact the successful candidate was un-seated was that false statements of fact in relation to the petitionerhad been made, suggesting that he had employod men to write out forfee or reward his election manifesto. While that allegation was falsein fact, the conduct of the petitioner, however, shows that when therewas no legal claim on him he made a payment to a person for havingpromoted his candidature. The fact that the payment was madegratuitously though there was no legal obligation to do so makes theconduct of the petitioner more heinous than it would otherwise be, forthe payment assumes the character of a bribe. Section 57 (9) of theOrder in Council provides, to quote the words relevant for the purposeof the present discussion, that every person who after any electiondirectly or indirectly by himself receives any money on account of hishaving induced any other person to vote at such election would beguilty of bribery. This sub-section, therfore, tends to assign to thepetitioner the role of one who paid a bribe. In this view of the matter,even the allegation of good faith fails.
I do not think that the very salutary provisions of the Order in Councilshould be whittled away by relaxing their stringency, for by doing sothe Court will only be encouraging laxity on the part of candidates,leading to the purity of elections being grievously assailed.
Having regard to the foregoing, I cannot but hold that the petitionerwas aware of the provisions of the Order in Council and that he madethe payment deliberately and that there was also lack of good faithin making the payment. But even if the petitioner be held to havebeen ignorant of the relative provisions of the Order in Council and evenif one were inclined to adopt the reasoning of McCardie J. it cannot besaid that the conduct of the petitioner fails within the category of slightand excusable acts that it could justifiably be excused, more so as therehas also been lack of bona lidos in making the payment.
I am therefore not satisfied that the petitioner has made out a sufficientcase to entitle him to the relief applied for. The application fails andis refused.
Application refustd.