41 Hettiarachchige
Silva Suneetha Mallika Sooriyapaluwa 363
42. Weerasinghe
Kamalawathie Arachchige Kandaliyadda Paluwa 1.520
The aforesaid acts of impersonation along with numerous otherimpersonation of electors was organised by the 1 st Respondent'ssupporters and facilitated by several Police Officers and members ofthe official staff at Polling Stations.
Jayasinghe v. Jayakody fSharvananda. CJ.)
(4) (C) The petitioner states that the following matters constituteother circumstances referred to above :
The following polling agents of the SLFP candidates werearrested by officers from Veyangoda and NittambuwaPolice Stations on 18th May 1983 at about 4.00 a.m. andheld in custody for several hours after polling hadcommenced, thereby not being able to perform theirfunctions till the time shown below
Name of the Polling Agent Polling BoothTime of Arrival at
the Booth
1. P. L. Weerasinghe2 E. A. Piyasena
W. Jayakody
W. Dharmawardena
The detention of the polling agents resulted in :
The.facilitation of impersonation.
The demoralisation of sympathisers of the SLFPcandidates.
Creating the impression that Government machinery couldbe used against persons sympathetic to or espousing theSLFP cause.
Loudspeaker permits for holding of public meetings of the SriLanka Freedom Party were refused by Police Officers anxious tosupport the Government Party namely the United National Party.The details are set out below.
Application on To Police Station For Meeting at Refused
(a) 29.04.83 Weerangala Malwatu-
Hiripitiya 07.05.83
«J) 03.05.83 Kadawatie Enderamulla 07.05.83
(c) 03.05.83 Kadawatte Kadawane 07.05.83
Police Officers throughout the electorate –
harassed and threatened the Sri Lanka Freedom PartyOrganisers and supporters throughout the electioncampaign and on election day ;
Sri Lanka Law Repons
[1985] 2 Sri L .R.
permitted unauthorised persons to enter polling booths andto intimidate electors in the polling queues ;
<c) unlawfully arrested Reggie Ranatunga on 5th May. 1983and held him in unlawful custody in order to prevent himfrom carrying out of his functions of a Chief Organiser forthe S.L.F.P. in Uruval Peruwa area and to dissuade theother organisers and supporters of the S.L.F.P.
5. The petitioner states that the election of the 1st respondentaforesaid is void on the ground of non-compliance with the provisionsof the Ceylon (Parliamentary Elections) Order in Council 1946 relatingto elections and the failure to conduct the election in accordance withthe principles of such provisions which non compliance affected theresults of the election.
The petitioner states :
that ballot box from Natbuduwa polling booth contained 49ballot papers more than the number issued according to thereturn sent by the Senior Presiding Officer of that booth andannounced by him at the polling booth ;
that a ballot box from lhalakaragahamune polling boothcontained one ballot paper less than the total issued at thepolling station according to the announcement of the SeniorPresiding Officer and the returns made by him.
that a ballot box from Rahatara polling booth contained oneballot paper less than the total issued at that polling stationaccording to the announcement of the Senior Presiding Officerand the returns made by him.
The Election Judge has after a careful analysis of the severalsubmissions made by Counsel for the appellant-petitioner andrespondents computed the total amount of security that should havebeen furnished by the petitioner to be Rs. 52,500. The amount ofsecurity in fact deposited by the petitioner is Rs. 5Q.000. The ElectionJudge has held that the amount deposited is short by Rs. 2.500 andas Rule 12(3) states that no further proceedings should be heard onthe petition, if the security as stipulated is not deposited, he dismissed* the petition on that ground.
Jayasinghe v. Jayakody (Sharvananda. C.J.)
The learned Election Judge's computation is as follows
Para 3 (a) {■} – 1 st charge of undue influence against the 2ndRespondent – Attracts
Para 3 (a) (ii)and (iii) – 2 additional charges of undue influenceagainst the 2nd Respondent – Attracts
Para 3 B (i) and (ii) -2 charges of undue influence against the3rd Respondent – Attracts
Para 4A- 1st charge of general intimidation on the distinctground of likely prevention of free voting – Attracts
Para 4A (v)-(vii) – 3 additional charges of undue influenceagainst the 2nd Respondent – Attracts
Para 4A (xi)-(xiv) – 4 charges of undue influence against the 1 stRespondent – Attracts
Para 4B – Misconduct – the 2nd charge on the distinctground of likely prevention of free voting – Attracts
Para 4C(i) — 1 st distinct type of "othercircumstances’ -Attracts
Rs. c.
007.50000 00
Para 4C(ii) & (iii)(a) and (c) – 2nd distinct type of 'othercircumstances' – Attracts
2.500 00
Para 4C (iii) (h) – 3rd distinct type of 'other
circupistances' – Attracts..2.500 00
Para 5 – 1st charge on the distinct ground of 'non compliance' . .5.000.00
There was no controversy as regards paragraphs 3A(i) to (iii). 3B(i)to (ii) of the petition. There was also no controversy in regard toparagraph 5 of the petition. Mr. Senanayake referred to Rule 12(2):
'Security shall be an amount. … in respect of the 1st chargeconstituting a distinct ground on which the petitioner relies, and afurther amount … in respect of each additional chargeconstituting any such ground'
and submitted that the security is payable in respect of a charge whichthe petitioner relies to sustain his prayer. He stated that in paragraph4A the petitioner has set out the ground of general intimidation and inconnection therewith he has set out several items, some of which,might amount to acts of undue influence. His explanation is that thepetitioner is relying on the cumulative affect of the several incidentspleaded in paragraph 4(A) to establish the ground of prevention or
Sri Lanka Law Reports
(1985] 2 Sri L.R.
likely prevention of free voting. He said that the corrupt practices ofundue influence relied upon by the petitioner for the avoidance of theelection have been set out in paragraphs 3A and 3B of the petition. Hecontended that it was not open to the counsel for respondents toextract items pleaded under general intimidation and say that they aretantamount to corrupt practice of undue influence and thereforeattract security, for the reason that the petitioner is not relying onthose items to support his charge of corrupt practice.
The Election Judge did not agree with this submission of Mr.Senanayake. In my view, he is correct in rejecting this submission.
In appeal. Counsel for the petitioner submitted that Rule 12(2)confines the amount of security to charges on which the petitionerrelies. According to him, section 77(a) sets out one ground viz:prevention of free vote, and one of the means by which this could beeffected is by intimidation of a generalised nature. He said that thoughin paragraph 4(a) (v) to (vii) the 2nd respondent is alleged to havecommitted four separate acts of undue influence and in paragraph4(a) (xi) to (xiv) the 1st respondent (the returned candidate) to havecommitted four separate acts of undue influence, the petitioner wasnot seeking to avoid the election on the basis of the allegations in 4(a),(v) to (vii) and 4(a) (xi) to (xiv). He stated that since the petitioner wasnot relying on those charges to avoid the election, the petitioner wasnot obliged by Rule 12(2) to furnish security in respect of thosecharges. It is to be noted that each of these allegations contains all theingredients of the charge of corrupt practice of undue influencecommitted in connection with the election by the candidate or by anagent of the candidate sufficient, in terms of section 77B, to avoid theelection. The question arises whether the Election Judge is bound bythe charges preferred by the petitioner on the material facts furnishedby him in the petition and is inhibited from identifying the chargeswhich the averments reveal. Section 81 requires the Election Judge todetermine at the conclusion of the trial of an election petition whetherthe election was void. In terms of this section, if at the conclusion ofthe present election petition the Election Judge finds that any one ofthe allegations set out in 4(a), (v) to (vii) or 4(a) (xi) to (xiv) is proved tohave been committed he will have to hold that a corrupt practice hasbeen committed in connection with the election by the returnedcandidate (1 st respondent) or by the 2nd respondent, an agent of the1st respondent (vide paragraph 3 of the petition) and consequentlydetermine that the impugned election is void.
Jayasinghe v. Jayakody (Sharvananda, C. J.)
Mr. Senanayake's reply was that section 81 does not givejurisdiction to the Election Judge to declare the election void on anyground or charge which had not been specifically relied on by thepetitioner in his petition for the avoidance of the election. I cannotaccept this limitation placed on the jurisdiction vested in the ElectionJudge by section 81. This section provides that'at the conclusion ofthe trial of an election petition the Election Judge shall determine . . .whether the election was void, and shall certify the determination inwriting under his hand." There is no warrant for reading into thissection the words "whether the petitioner has proved the charge reliedon by him and if so whether the election is void". The section does notplace any limitation on the Election Judge to declare void the election ifthe evidence on record led under any head establishes any one of thegrounds set out in section 77. The Election Judge's jurisdiction todetermine an election void is not confined to the charges preferred bythe petitioner. Section 81 read with section 77 obligates the ElectionJudge to declare void the election of the 1st respondent when acorrupt practice in connection with the election, whether relied on bythe petitioner or not has been proved to his satisfaction to have beencommitted by the 1 st respondent or by his agents, the 2nd or 3rdrespondent.
It is true the petitioner has pleaded in paragraph 4(a) the aforesaidacts of undue influence committed by the 2nd respondent and the 1 strespondent, in support of the ground of general intimidation and not inconnection with the charge of corrupt practice and has studiouslyabstained from labelling them as corrupt practice by the candidate orhis agent. But they could have, without any further avermentappropriately been included in paragraph 3 of the petition where thepetition sets out items of the corrupt practice of undue influencecommitted by the agents of the 1st respondent and been propersubject-matter of charges under section 77(c).
If Mr. Senanayake's submission is accepted it would enable thepetitioner to avoid furnishing security in respect of allegations ofcorrupt practice by the candidate or his agent by categorising them asinstances of general bribery, intimidation etc., while putting thecandidate and/or his agent in hazard of punitive consequences undersection 81 or 82. The candidate or his agent will then be put in asituation of having to defend themselves against the charges of suchcorrupt practice without the petitioner furnishing necessary security #for such charges. In my view this cannot be permitted. Under Rule
Sri Lanka Law Reports
(1985)2 SriLR.
12(2) to determine the grounds or charges on which the petitioner isasking relief court is not restricted to what he specifically alleges for hisground or charge in the petition but what are the grounds or chargeswhich the petition discloses. If the material facts on which thepetitioner relies exhibits a ground or charge for avoidance of anelection under section 77. irrespective of the fact whether thepetitioner has chosen to prefer a charge based on them, the petitionerwill have to give security for such charge. The petitioner relies on thefacts set out in his petition for the avoidance of the election and if thefacts so set out disclose a charge or ground for the avoidance of theelection, it is immaterial whether the petitioner has framed such acharge or ground for the avoidance of the election. The petitioner isrelying on facts which constitute a charge or ground and hence has togive security in respect of such charge or ground. The security is forthe benefit of the respondents and it is from their perspective as to thehazard they are put to that the amount of security has to becalculated.
The instances of undue influence given in 4A (ii) and (iii) are thesame as instances given in 3B (i) and (ii) and therefore do notconstitute new charges of undue influence.
I agree with the Election Judge that in respect of the matterspleaded in paragraph 4A of the petition the petitioner should havedeposited a total sum of Rs. 22,500.
The acts of impersonation pleaded in paragraph 4B of the petitionconstitute other grounds of 'misconduct' and attract Rs. 2500 assecurity.
The arrest of the agents of the S.LF.P. by the Police on 18.5.1983(the election day) and keeping them in custody as set out in paragraph4C(i) constitute one distinct type of 'other circumstances' and attractRs. 2500 as security.
I agree with the Election Judge that the refusal by the Police ofloudspeaker permits for holding public meetings and acts ofmisconduct by the Police, set out in paragraph 4C (iii) (a) and (c)committed during the election campaign constitute a distinct type of‘other circumstances' and attracts Rs. 2500.
The acts of the Police in permitting unauthorised persons to enterpolling booths and to intimidate electors in the polling queues on theelection day referred to in paragraph 4C (iii) (£>) constitute a third• distinct type of 'other circumstances' and attracts Rs. 2500 assecurity.
Jayasinghe v. Jayakody (Sharvananda, C. J.)
The allegation of non-compliance with the provisions of the Ceylon(Parliamentary Elections) Order in Council. 1946, relating to elections,constitutes a distinct ground and attracts Rs. 5000 as security.
I therefore agree with the Election Judge on the computation of thesecurity required to be furnished by the petitioner in respect of theallegations contained in the petition.
The Election Judge has held that the petitioner has set out as bestas he can full particulars of the several corrupt practices alleged by thepetitioner and that the Election Judge could in the exercise of hispower under section 80C (i) direct amendment or amplification of theparticulars, if he thinks necessary. No argument was urged, faultingthis conclusion.
The Election Judge has upheld the objection that the affidavit filedby the petitioner is inadequate.
Paragraph 2 of the affidavit of the petitioner, accompanying thepetition states "that the averment of facts set out in my petition andthe particulars of commission of corrupt practice set out therein aremade from my own personal knowledge and observation or frompersonal inquiries conducted by me in order to ascertain the details ofthe incident referred to in the petition." The Election Judge states thatthe petitioner does not say in his affidavit which facts in the petitionare based on personal knowledge and which of them are based oninformation. He however holds that the affidavit can be one based onpersonal knowledge or on information and belief provided that if thelatter, the deponent must disclose the source of information and thegrounds of his belief. He also held that the function of an affidavit is tocertify and support the allegation of corrupt practice made in thepetition and an affidavit that fails to perform the function is not anaffidavit in the eye of the law. The Election Judge has held that theaffidavit is defective in that the deponent has not disclosed the sourceof information and the ground of his belief. He concludes-
"I reject the affidavit filed by the petitioner on the ground that thepetitioner has not verified and confirmed the facts stated in thepetition I uphold the objection that there was no proper affidavitsupporting the allegation of corrupt practice pleaded in the petition^and therefore the petition was defective.
Sri Lanka Law Reports
[1985] 2 SriL.R.
Section 80 of the Ceylon (Parliamentary Elections) Order-in-Councilprovides that –
‘The petition shall also be accompanied by an affidavit in theprescribed form in support of the allegation of such corrupt or illegalpractice and the date and place of the commission of suchpractice."
Admittedly no form has been prescribed for the affidavit to conformto.
I agree with the Election Judge that where some of the statementsin the paragraph of the affidavit accompanying the election petition arebased on the knowledge of the deponent and some on informationreceived from others,the affidavit is defective. But I do not agree withthe Election Judge that the petition should be dismissed on thatground of defect in the verification. The allegation of corrupt practicecannot be ignored merely on the ground that the source ofinformation, is not disclosed, when the allegation is based oninformation, as it is not a requirement of law that the source ofinformation or the ground of the deponent’s belief should be set out.since the form of the mandatory affidavit has not been prescribed. Inmy view the Election Judge was in error in upholding this objectionregarding affidavit.
I agree with Samarawickrama, J., that an election petition shouldnot be dismissed on the ground of defective affidavit, where no formhas been prescribed by law.
Though I do not agree with the Election Judge in his conclusionrespecting the objection regarding the persons to be joined asrespondents to the petition and in respect of the adequacy of thepetitioner's affidavit. I agree with the Election Judge that the securityfurnished by the petitioner is not sufficient in terms of Rule 12 (2). Itherefore dismiss the appeal, but I do not make any order regardingcosts.
COUN-THOME', J. – I agree.
ATUKORALE, J. – I agree.
H. DE ALWIS. J. – I agree.
Jayasinghe v. Jayakody
The two appeals, S.C. 4/84 and 5/84, were consolidated and heardtogether although the petitioners and the respondents in therespective appeals are different. They deal with the same election andthe same electoral seat, and some of the legal issues argued before usare common to both appeals.
In these election petitions the petitioners have asked for adeclaration that the election of the 1 st respondent as a member ofParliament for Mahara (Electoral District No. 17) is void. The petitionerin the second petition and the 1 st respondent were two of the fivecandidates who contested the election.
The election was held on 18th May, 1983, pursuant to Article168 (1) (d) (iii) of the Constitution, as amended by the FifthConstitutional Amendment, and was conducted in terms of theprovisions of the Ceylon (Parliamentary Elections) Order-in-Council1946.
The petitioner in the first petition (No. 4/84) is a voter. The fourrespondents are : the successful candidate (the 1st respondent),Sarathchandra Rajakaruna (the 2nd respondent), who is incidentally amember of Parliament and a Deputy Minister, Ranil Wickremasinghe(the 3rd respondent), also a member of Parliament and a CabinetMinister, and the Returning Officer for the electoral district (the 4threspondent).
Paragraph 3 A of the petition alleges three charges of corruptpractice of undue influence against the 1 st respondent, committed byhis agent the 2nd respondent.
Paragraph 3 B of the petition contains two charges of corruptpractice of undue influence against the 1 st respondent, committed byhis agent the 3rd respondent.
In paragraph 4, the petitioner has stated that by reason of generalintimidation or other misconduct or other circumstances, the majorityof electors may have been prevented from electing the candidatewhom they preferred. Paragraph 4 A lists 14 such instances. Thisintimidation has been done by the 1 st respondent himself and by thesupporters of the 1 st respondent, and includes two instances by the
Sri Lanka Law Reports
11985) 2 Sri L.R.
3rd respondent and three instances by the 2nd respondent as agentsof the 1 st respondent. These allegations are of a very grave nature andone transaction involved the shooting and the death of a S L.F.P.supporter standing by the side of or very close to the unsuccessfulcandidate Vijaya Kumaranatunga, the petitioner in the second petition.The other cases disclose assault, thuggery and intimidation ofnumerous supporters of the S.L.F.P. at various times and at variousplaces by individuals and gangs, and in one case by a group of about150 persons.
Paragraph 4 B of the petition lists 42 cases of impersonation asconstituting other misconduct.
Paragraph 4 C states certain other circumstances that prevented atrue vote. It contains a list of 31 names of polling agents of the
S.L.F.P. candidate who had been unlawfully arrested and held incustody for several hours after the polling commenced and weretherefore unable to perform their functions. Paragraph 4 C. (ii) liststhree cases where loud speaker permits had been wrongly refused tothe S L.F.P. Paragraph 4 C (iii) alleges a number of wrongful acts onthe part of the Police including the arrest of a chief organiser of the
S.L.F.P. in Uruval Peruwa area.
In the second petition (No. 5/84) Mr. Vijaya Kumaranatunga, theunsuccessful candidate, has sought a declaration that the election isvoid on the ground that the 2nd respondent Mr. J. R. Jayewardene(the President of the Republic) as agent of the 1st respondent,committed the corrupt practice of making false statements of fact inrelation to the personal character and conduct of the petitioner. Thatpetition would be dealt with in the latter part of this judgment.
The election had been hotly contested and the result was veryclose. The 1st respondent polled 2.4,944 votes as against 24,899polled by Mr. Kumaranatunga, the petitioner in the second petition.The majority was a mere 45 votes. There is reason for anxiety in thiscase when we consider the serious nature of the allegations in thepetition in the context of the slender majority.
When the election petitions came for hearing before the ElectionJudge, the respondents at the outset raised certain preliminary• objections and prayed for the dismissal of the petitions. The ElectionJudge has upheld those objections and dismissed the petitions. The
Jayasinghe v. Jayakody (Wanasundera, J.)
present appeals are from that order. The dismissals of the petitions inlimine by the Election Judge did not permit the court to go to trial andinquire into the several allegations made in the petitions.
The preliminary objections raised in the first petition (No. 4/84) arethe following
that sufficient security has not been given by the petitioner inrespect of his petition.
{b) that persons who are required to be joined as respondents tothe petition have not been so joined.
that the petition has failed to set out full particulars of theseveral corrupt practices alleged by the petitioner as required bythe law.
that the affidavits filed by the petitioner are inadequate and donot comply with the legal provisions.
At this stage it would be convenient to set out in extenso the legalprovisions that are relevant for a consideration of this matter. Theapplicable legal provisions are contained in the Ceylon (ParliamentaryElections) Order-in-Council 1946, as amended by Act No. 9 of 1970.They are as follows
"80 A. (1) A petitioner shall join as respondent to his election
petition –
where the petition, in addition to claiming that the election of allor any of the returned candidates is void or was undue, claims afurther declaration that he himself or any other candidate hasbeen duly elected, all the contesting candidates, other than thepetitioner, and where no such further declaration is claimed, allthe returned candidates ; and
lb) any other candidate or person against whom allegations of anycorrupt or illegal practice are made in the petition. 2
(2)Any candidate not already a respondent to an electionpetition shall, upon application in that behalf made by him tothe Election Judge, be entitled to be joined as a respondent*to such petition :
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[1985] 2 SriL.R.
Provided that no candidate shall be entitled to be joined of his ownmotion as a respondent to such petition under the precedingprovisions of this section unless he has given such security for costsas the Election Judge may determine.
80 B. An election petition –
shall state the right of the petitioner to petition within section 79of this Order:
shall state the holding and result of the election ;
shall contain a concise statement of the material facts on whichthe petitioner relied ;
shall set forth full particulars of any corrupt or illegal practice-that the petitioner alleges, including as full a statement aspossible of the names of the parties alleged to have committedsuch corrupt or illegal practice and the date and place of thecommission of such practice, and shall also be accompanied byan affidavit in the prescribed form in support of the allegation ofsuch corrupt or illegal practice and the date and place of thecommission of such practice ;
shall conclude with a prayer as. for instance, that somespecified person should be declared duly returned or elected, orthat the election should be declared void, or as the case maybe, and shall be signed by all the petitioners ,
Provided, however, that nothing in the preceding provisions of thissection shall be deemed or construed to require evidence to be statedin the petition.
80C. (1) The Election Judge may, upon such terms as to costs orotherwise as he may deem fit, allow the particulars of any corrupt orillegal practice specified in an election petition to be amended oramplified in such manner as may in his opinion be necessary forensuring a fair or effective trial of the petition so, however, that heshall not allow such amendment or amplification if it will result in theintroduction of particulars of any corrupt or illegal practice notpreviously alleged in the petition.
Jayasinghe v. Jayakody (Wanasundera. J.)
Every election petition shall be tried as expeditiously aspossible and every endeavour shall be made to conclude the trial ofsuch petition within a period of six months after the date of thepresentation of such petition. The Election Judge shall make hisorder deciding such petition without undue delay after the date ofthe conclusion of the trial of such petition.
81. At the conclusion of the trial of an election petition theElection Judge shall determine whether the Member whose returnor election is complained of, or any other and what person, was dulyreturned or elected, or whether the election was void, and shallcertify such determination in writing( under his hand.
Such certificate shall be kept in the custody of the Registrar of theSupreme Court to be dealt with as hereinafter provided.'
These provisions have to be considered in conjunction with Rule 12of the Rules. Rule 12 contained in the Third Schedule is as follows
‘12. (1) At the time of the presentation of the petition, or withinthree days afterwards, security for the payment of all costs, chargesand expenses that may become payable by the petitioner shall begiven on behalf of the petitioner.
The security shall be. an amount of hot less than fivethousand rupees in respect, of the first charge constituting a distinctground on which;the petitioner relies, and a further amount of not lessthan two thousand five hundred rupees in respect of each additionalcharge constituting any such ground. The security required by this ruleshall be given by a deposit of money. 3
(3)Jf security as in this rule provided is not given by thepetitioner, no further proceedings shall be had on the petition, and therespondent may apply to the Judge for an order directing the dismissalof the petition and for-the payment of the respondent’s costs. Thecosts of hearing and deciding such application shall be paid as orderedby the Judge, and in default of such order shall form part of the •general costs of the .petition r
Sri Lanka Law Reports
[1985] 2 Sri LR.
For the purpose of their submissions, counsel for the respondentshave drawn the attention of the court to certain grounds and chargesin the election petition. According to paragraph 3 of the petition thegrounds and charges are as follows
3A. Corrupt practices of undue influence committed by the 2ndrespondent as agent of the 1 st respondent. Three charges.
3B. Corrupt practices of undue influence committed by the 3rdrespondent as agent of the 1 st respondent. Two charges.
■ In paragraph 4, the petitioner has alleged the ground of “generalintimidation or other misconduct or other circumstances' whereby themajority of the electors may have been prevented from electing thecandidate whom they preferred. As stated earlier, this groundcontains three instances of intimidation by the 2nd respondent andtwo such instances by the 3rd respondent.
The parties were at issue oh the question as to what is a ground andwhat is a charge of undue intimidation and how many such chargesare contained in the petition. It was the respondents' contention thateach of the charges referred to above is a charge of corrupt practiceand carries with it the need to give security, the need for a coveringaffidavit and the joinder as a respondent of the person against whomsuch an allegation is made. This relates specifically to the chargesunder paragraph 4 of the petition which has been a bone of contentionbetween the parties and all the issues before us arise from implicationsflowing from its contents. I
I shall first deal with the question of security. The^ petition has beendrafted on the basis that paragraph 3A (i), (ii) and (iii) contains threecharges with the first charge carrying a security of Rs. 5,000. Thetotal security due according to the petitioner therefore is Rs. 10,000.Paragraph 3B contains two charges of undue influence against the 3rdrespondent. The security according to the petitioner is Rs. 5,000.Paragraph 4A contains one charge of general intimidation on theground of the prevention of free voting. This the petitioner statescarries a security of Rs. 5.000. Paragraph 4B is a charge of'misconduct on the same ground as 4A and, according to thepetitioner, attracts a security of Rs. 2,500. Paragraph 4C is another‘charge on the same ground and again according to the petitionerattracts a security of Rs. 2,500. Paragraph 5 dealing with
Jayasinghe v. Jayakody {Wanasundera, J.j
non-compliance is a first charge on a distinct ground and attracts asecurity of Rs, 5,000. The total- security in respect of all charges,according to the petitioner, is Rs. 30,000. The petitioner has howeverdeposited a sum pf Rs. 50,000 leaving a large margin for error.
Both counsel for the respondents disputed this computation.Mr. Candappa had contended before the Election Judge'that theproper amount of security is Rs. 72,500'; but according to Mr. MarkFernando it was Rs. 60,000. In the appeal before us it was_submittedby both the. respondents that the proper security is a sum ofRs. 60,000.
Since the difference between the sum deposited and what iscontended to be the correct amount is only Rs. 10,000,1 agree withMr. Senanayake that it is not necessary for me to go into a detailedcomputation of the security in respect of all and every ground andcharge. It was sufficient for us, as Mr. Senanayake submitted, that weconfine ourselves to only paragraphs 4A (v), (vi) and (vii) andparagraphs 4A (xi), (xii), (xiii) and (xiv) of the petition on the objectionto the adequacy of security. According to the" respondents, thesecharges carry a security of Rs. 1.7,500. Mr. Senanayake hascontended that paragraph 4A contains only one ground and chargeand that this will carry a security of Rs. 5.000 and if this submission iscorrect, this preliminary objection would fail.
Paragraph 4A purports to have been formulated under section77 (a). This provision requires some comment. Although there hasbeen a divergence of views expressed by the Judges {including myself)in S.C. Election Petition Nos. 1, 2 and 3 of 1977 regarding section77 (a), all counsel before us agreed that this provision contains onlyone ground of avoidance, namely that the majority of electors were ormay have been prevented from electing the candidate whom theypreferred. They also agreed that each circumstance enumerated insection 77 (a) would constitute a charge, e.g the first charge ofgeneral intimidation would attract a security of Rs. 5,000 and chargesof general treating or general bribery etc., would be regarded asadditional charges respectively and would attract a security of Rs.
Now the respondents have contended that paragraphs 4A (v) to (vii)and (xi) to (xiv) constitute in fact.charges of corrupt practice, althoughthey have been formulated as charges under section 77(a). It was the •respondent's contention that the court was not necessarily bound by
Sri Lanka Law Reports
[1985] 2 Sri LR.
the formulation found in the petition and it was the duty of the court,having-regard to the legal provisions relating to elections, to inquireinto the circumstances set out in the petition and find out whether ornot they disclose any allegations of corrupt practice against anyperson.
, The respondent's objections on this matter were upheld by theElection Judge. The reasoning of the Election Judge in regard to thispart of the case is as follows :
'. .. . The security that is payable does not depend on what apetitioner has chosen to label as corrupt practices, for. if this wereso, it will leave the door wide open to the petitioner to tuck away insome part of.the petition, an item of general intimidation, which ifproved would result in avoiding the election. Take, for example,items (xi), (xii), (xiii)-and (xiv) of paragraph 4A of the petition. Theyall contain allegations of assault by the 1 st respondent, who is thesuccessful candidate, or named persons who are SLFP supportersand it is stated that these acts were done in order to prevent thefree exercise of the franchise by several electors who witnessed theincident by placing them under duress. The pleadings in thesesub-paragraphs are exactly the same as those in paragraphs 3B (i)and (ii) against the 3rd respondent. This allegation, if proved at thetrial, will not oniy avoid the 1st respondent's election, but hebecomes also liable to be reported under s. 82 (a) of the ElectionOrder-in-Council with two dire consequences – forfeiture of his civicrights and a criminal prosecution. I agree with Mr. Candappa thatthere are four charges of undue influence against the 1strespondent."
In regard to charges 4A (v), (vi) and (vii), the Election Judge said-
"ln paragraphs 3A (i). (ii) and (iii), definite allegations of undue. influence have been made against the 2nd respondent only, who isdescribed as an agent of the 1st respondent. The persons whosevotes were affected have also been named. All three incidents■ occurred near the Buthpitiya polling booth and the exact times whenthese incidents took place have also been specified. In each of theparagraphs 4A (v). (vi) and (vii) the allegations are against the 2ndrespondent and other persons who acted on his behalf and at his. instigation. The acts of the other persons have been brought hometo the agent of the 1 st respondent. All incidents occurred atButhpitiya polling booth ; the times are not specified. The acts
Jayasmghe v. Jayakody (Wartasundera, J.)
complained of are directed against the same persons named inparag’raphs 3A (i), (ii) and (iii), and also against several otherelectors and in consequence they, also did not vote. The incidentsset out in these sub-paragraphs (v) — (vii) of paragraph 4A cannotbe the same as those set out in paragraph 3A (i) to (iii). Each of theallegations stated in sub-paragraphs (v) – {vii) of . paragraph 4A, ifproved at the trial, will avoid the 1st respondent’s election. Thepetitioner may fail to prove the allegations in paragraphs 3A (i) to(iii), and yet succeed in proving the allegations in paragraphs 4A (v)to (vii). I agree with Mr. George Candappa that there are threeadditional chargies of undue influence against the 2nd respondent inparagraph 4A (v), (vi) and (vii)." .
Section 82 (b) of the Order-in-Council requires the Election Judge.atthe conclusion of the trial of the election petition to make a reportsetting out-
"(a) whether any corrupt or illegal practice has or has not beenproved to have been committed by or with the knowledge andconsent of any candidate at the election, or by his agent, andthe nature of such corrupt or illegal practice, if any ; and
(6) the names and descriptions of all persons, if any, who havebeen proved at the trial to Have been guilty of any corrupt orillegal practice :
Provided, however, that before any person,' not being a party toan election petition nor a candidate on behalf of whom the seat isclaimed by an election petition, is reported'by an Election Judgeunder this section, the Election Judge shall give such person anopportunity of being heard and of giving and calling evidence toshow why he should not be so reported."
This is the peg on which the respondents hang their arguments. Toreiterate their arguments, they submit that there is a duty on theElection Judge to inquire into any allegation of a corrupt or illegalpractice contained in the petition and to make a report specifying anyperson found guilty of any such practice/This they submit is to ensurethe purity of the electoral process; They state that this duty extendsbeyond the case where a specific charge of a corrupt or illegal practiceis made under section 77 (c), but would apply even where a corrupt orillegal practice is merely alleged in the petition. It is their submissionthat the jurisdiction of the court would be activated even when there is
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a reference to a corrupt or illegal practice under any other ground as insection 77 (a). They have sought additional support for this in thedifference in wording of paragraphs (c) and (d) of section 80B„ wherethe terms 'alleges' and 'relies on' are. they submit, used in differentsenses.
On the basis of these provisions they submit that there is a duty onthe Election Judge to identify and furnish a report of all persons provedto have been guilty of any corrupt or illegal practice. This of coursewould be additional to the main duty of court in determining the issueof the avoidance of the election. Mr. Candappa ‘placed his case as highas to state that an election court in this country has the same powersexercised by an election court in’the U.K. and would'havequasi-inquisitorial powers to investigate and report on all allegationsrelating to corrupt and illegal practices. He cited the following passagefrom Halsbury's Laws of England (4th Edition). Volume 15, paragraph834, in support of his submission :
'Subject to the provisions of that Act and the rules made under it,the principles, practice and rules on which committees of the Houseof Commons used to act in-dealing with election petitions are to beobserved, so far as may be, by the High Court and Election Court inthe case of a parliamentary election petition. Where the petitionalleges the commission of corrupt or illegal practices, the electioncourt has quasi-inquisitorial as well as judicial duties, as the courtmust investigate and report whether any corrupt or illegal practiceshave been committed by. "or with the consent of, the candidate, orby any pther person, or whether they have extensively prevailed. Itfollows, therefore, that the election court has jurisdiction to inquireinto any,facts which throw light on the possibility of these offenceshaving been committed even though these facts are not relevant tothe issue raised between the petitioner and the respondent to thepetition’'
While there may not be a difference in the basic principles thatgovern an Election Court in the U.K. and in our country, yet our courtshave been constrained to giOe effect to certain statutory provisionsenacted here to meet the local requirements in the development ofelection laws in this country. Our courts would not have the wideranging jurisdiction claimed by Mr. Candappa. but it would be nearerthe position advocated by Mr. Choksy, who was not prepared to go allthe way with Mr. Candappa.
An analysis of the relevant provisions which is supported by judicialdecision leaves no room for doubting the respondents' submissionthat an election court is vested with dual functions. The dual function’sconnote in this context the conducting of two separate proceedingsnotionally, each involving a different set of issues and each leading todifferent consequences and yielding different results. Even the veryquotation from Halsbury cited by Mr. Candappa in' its concludingsentence makes this clear:
". . . . . that the election court has jurisdiction to inquire into anyfacts which throw light on the possibility of these offences havingbeen committed even though those facts;are not relevant to theissue raised between the petitioner and the respondent to thepetition:" ■■, .
'The main event or proceeding in an election petition proceeding isthe inquiry into the avoidance of the. election. Its result can affect thewhole, electorate and the country. The other function, which issubsidiary, operates at an individual level, both in terms of inquiry andresult. Where the mairijDroceeding i^ based on the ground of a cqrruptor illegal practice, the law by virtue of our amendment now requiresthe person against whom such allegations have, been made should bemade a respondent. It also requires such guarantees as security forthe charges and the backing.of an affidavit.. ,
The main proceeding is also intimately linked with both the groundsfor the avoidance of the election and the charges arising therefrom.These would be the issues in. those proceedings. In the subsidiaryproceedings the grounds for avoidance of the election are,irrelevantand even, a charge qua charge is not a matter in issue. The inquiry isdirected, if Justice Nagalingam is right, not even to the conduct andculpability of the person against whom the allegation is made, butwhether the material merely indicates the commission of a corrupt orillegal practice. In In re Fred E. de. Silva, (1) Nagalingam J. said
"… A reading of sub-section (a) of section 82 reveals only twoclasses or persons who could be reported at best. I say "at best" forthe primary concern of the sub-section is not so much with personsas with offences. It requires that areport should be made .whether acorruptor illegal practice has or has not been proved to have beencomrrlitted, not that a person or persons should be reported ;.. ."•For the purpose of resolving the issues before us, it is equallyimportant that we have a clear understanding of what is a "ground"and what is a “charge*. A fundamental distinction exists betweenthese two expressions. It is now settled law that a “ground" and 3
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'charge" are different concepts and do not mean the same thing. Thegrounds for the avoidance of an election are set out in section 77.Clauses (b), (d) and (e) of section 77 cbntain one ground each, clause
contains two grounds, and clause (a) contains one ground. Allthese grounds are separate from one another and different, A chargewould be an allegation coming under any particular ground referred toin section 77, which, if proved, would be sufficient to avoid anelection. A charge under one ground is strictly confined to that groundand cannot be mixed with a separate ground and considered under adifferent headjn section 77. The entire foundation of the respondents’submission is that a. charge under one ground should also beconsidered as falling under a different ground. This is certainly not thelegal position as I understand it.
The next mistake on the part of the respondents is to ignore thedifferences in nature and content between ground 77 (a) and ground77 (c). I now turn to these'two provisions contrasting ground 77 (a)with ground 77 (c) with reference to an allegation of a corrupt orillegal practice. Under ground (a), namely general intimidation, it ispossible for a petitioner to give one or more instances of a corruptpractice. Now, could such an instance be considered as a charge of acorrupt practice under section 77 (c) for the purpose of the avoidanceof the election ? I do not think so.
First, it should be understood that ground 77 (a) deals with generalbribery, general treating and general intimidation, and the gravamen pfthe complaint is that the majority of the electors were or may havebeen prevented from electing the candidate they preferred. On theother hand, ground 77 (c) deals with a corrupt or illegal practicesimpliciter. Second ground 77 (c) is confined to a corrupt or illegalpractice committed by the candidate or with his knowledge andconsent or by his agent. There is no such limitation in regard to areference to a corrupt practice made under ground 77 (a). This showsthat the charge under (c) is a direct charge of corrupt practice madeagainst the successful candidate, while under (a) the so called'charge' against the successful candidate is not of a corrupt practice,but one of general intimidation. The reference to an instance of acorrupt practice under section 77 (a) is an allegation against theindividual concerned and not against the successful candidate, andsuch an allegation can lead to certain other proceedings being set inmotion against such person. There is another significant differencebetween these provisions which Mr. Choksy sought to bridge by givingus an illustration.
SCJayasinghe v. Jayakody (Wanasundera. J )
. This difference is that ground (a) contemplates a generality, namely,a number of individual cases of intimidation or one act of intimidationinvolving several persons. Ground (c) .deals with an act of intimidationoperating at the individual level. This is borne out by the definition of"corrupt practice' in section 56, which shows that undue influencehas to be exercised 'upon or against any person". Mr. Choksyhowever strove valiantly to equate these two grounds. He gave, as theexample of an agent of the successful candidate intimidating a wholevillage containing 50 voters. This Mr. Choksy submitted was anexample that could fall under both grounds (a) and (c).
While I agree with Mr. Choksy that this example can form a chargeof general intimidation, I am however unable to agree that this canconstitute a single charge under ground (c). This example ismisconceived, for when it is closely examined it would be seen thatthis transaction constitutes both in law and fact a multiplicity ofcorrupt practices in terms of ground (c). There would be in this caseas many corrupt practices as the number of voters who had beenintimidated for the purpose of section 77 I a).
It would be clear from the above analysis that the so called "charge'of a corrupt practice under ground (a) has not the same meaning andlegal effect as one under ground (c).
The disputed charges are 4A (v) to (vii) and 4A (xii) to (xiv). Charges4A (v) to (vii) states that the intimidation was done by-the 2ndrespondent simpliciter, while charge 3A is formulated on the basis thatthe 2nd respondent acted as the agent of the 1st respondent. On theother hand, charges 4A (xii) to (xiv) on which Mr. Choksy relied referto the acts of the candidate himself. He submitted that these chargescould have been brought as a charge under section 77 (c).
When we look at charges 4A (ii) and (iii) and 4A (v), (vi) and (vii) ofthe petition, .we find that these are not based on agency or on the. direct responsibility of the candidate himself. As the pleadings stand,such evidence would not be admissible, so that for the reasons givenearlier, these charges can in no way be equated to a ground undersection 77 (c).
Mr. Choksy however, as to be expected, picked on the strongestcase the respondents could present on this issue and pressed thecharges 4A (xii) to (xiv), where the allegation is against the successfulcandidate himself. Incidentally if this submission fails a fortiori, thesubmission in respect of paragraphs 4A (v) to (vii) must necessarilyfail.
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Mr. Choksy submitted that such an allegation involving thesuccessful candidate has to be considered differently from the othercases because, on the pleadings and as regards the availableevidence, there would be no difference in his case between.a chargeunder'section 77 (c) and an allegation of a corrupt practice undersection 77 (a). While admittedly some difference does exist betweenthe two types 6f cases this is a difference brought about by the verynature of his situation as the main respondent defending the Election,but it can have no other significance This fact does not go to alter thebasic principles outlined earlier and such an inquiry even against thesuccessful candidate would still partake of the nature of a subsidiaryproceeding since the distinction I have drawn in this regard is afundamental one and it cannot be blurred by accidental factors.
No doubt, unlike in the case of an alleged agpnt, there is a possibilityof an elected candidate while succeeding in the trial stilt finding himselfbeing liable to be reported under section 82 with the consequencethat he may find himself disqualified from continuing to hold that seat.This has the appearence of an anomaly. Though that ultimate resultmay seem paradoxical, this is because in such an event the applicablelegal provisions operate by way of two different channels. Thisprovides the clearest proof that an election petition proceeding is dualin its nature and functions. In this example the election of thesuccessful candidate would be sustained by virtue of the certificateissued under section 81. The disqualification on the other handoperates by virtue of the provisions of section 82 read with 82D andsection 58. Even Mr. Choksy conceded that this, position is theoutcome of the operation of the legal provisions and that there wouldbe nothing anomalous about it.
■ The above analysis helps also to dispose of another submissionrelating to section 82 made by the respondents. They state that if theproviso to. section‘82 were to be applied only to persons againstwhom allegations Of a corrupt practice had been made outside section77 (c), then an invidious distinction is being drawn among personsbelonging to the same category. I
I have already shown that a case falling under section 77 (c) isdifferent from the category falling under section 77 (a), andaccordingly these two are different categories constituted by the lawfor different sets of circumstances. The need to join some persons asrespondents have been brought about by the amending law of 1970,
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which has improved the procedural rules so as to give fullerexpression to section 77 (c). A difference in the circumstances hasresulted in this slight difference of procedure, but both procedurescontain the same safeguards and cannot.in my view amount to a caseof discrimination. Incidentally it may be mentioned that the proviso tosection 82 has been retained not only for cases such as this, but alsofor other types of cases, some contemplated by the legislature, othersprobably not. that may fall within the ambit of the proviso. '
Although the respondents' cases have been presented onsomewhat broader lines and touches on a number of charges. I havedealt with the strongest case the respondents could muster. . Myrulings here will necessarily cover all the other charges in respect ofwhich the submissions of counsel carry much less conviction andweight, this finding against the respondents then, that the preliminaryobjections are based on a misconception, is adequate to dispose ofthe preliminary objections relating to all the charges in petitionNo. 4/84, save one. That is the question of the adequacy of theaffidavit in the general context of the whole petition over and above itsrequirement under the impugned charges of corrupt or illegalpractices.
Regarding the general adequacy of the affidavit, I find that thejudgment of my brothers contain a useful discussion of this matter. Itis not necessary to add anything more. I agree with, them; contrary towhat Mr. Senanayake submitted, that ah affidavit is a necessaryrequirement and must be filed with the petition in a case such as this.A document purporting to be an affidavit, however, has been filed withthe petition. It has been contended that this does not constitute, aproper affidavit or an adequate one.. Although the legislatureundertook to prescribe the required, form, it has omitted to do so. Inthe result, the petitioner has been left guessing as to what form heshould follow. In this situation the drastic step of dismissing thepetition for this lapse, if lapse it be, seems excessive. I would considerthis lapse as an irregularity that does not affect the validity of thepetition before court.
In the result I overrule^all the preliminary objections. I wouldtherefore allow the appeal with costs and direct the Election Judge toproceed with the hearing and trial of this petition.1
Appeal dismissed.