003-SLLR-SLLR-1985-V1-KULARATNE-AND-ANOTHER-v.-RAJAPAKSE.pdf
KULARATNE AND ANOTHER
v.RAJAPAKSE
SUPREME COURT.
SHARVANANDA. J., WANASUNDERA. J. AND ABDUL CADER, J.
S.C. No. 1/84 AND S.C. No. 2/84.
ELECTION PETITION No. 8/83.
SEPTEMBER 19. 20. 21. 24. 25. 26. 1984.
Election petition – Corrupt practice of false statement of fact relating to personalcharacter and conduct of petitioner-Section 58(1)(d) of Ceylon (ParliamentaryElections) Order-in-Council – Scope of appellate jurisdiction of Supreme Court in appealfrom determination of Election Judge – Section 82 (A) (1) of Ceylon (ParliamentaryElections) Order-in-Council.
The petitioner an unsuccessful candidate at the by-election for the Mulkirigala ElectoralDistrict held on 18th May 1983 filed this petition seeking to have the election of the 1 strespondent at the said election set aside on the ground that the 2nd respondent had asthe agent and/or with the knowledge and/or consent of the 1 st respondent committedthe corrupt practice of making a false statement relating to her personal character andconduct at a meeting at Middeniya to support the 1st respondent's candidature.
The 2nd respondent had in his speech at the said meeting made statements imputingthat the petitioner had shown no love or gratitude to her late father George Rajapaksewho earlier represented this electorate and that she was a hypocrite and a fraud to askthe voters to vote for her to show their gratitude to the late George Rajapakse. The 2ndrespondent did not dispute making the impugned statements nor did the respondentschallenge the fact of the agency of the 2nd respondent.
The respondents also pointed to a deficiency in the pleadings. The petitioner had failedto aver that the false statements were made for the purpose of affecting her return. Itwas also argued that the statement related to the public or political character of thepetitioner since gratitude to her late father was an election issue.
Held —
1) If the election judge's determination cannot be shown to be erroneous in point oflaw it is final and the finding of the Election Judge cannot be upset in appeal. Section82A (1) of the Ceylon (Parliamentary Elections) Order-in-Council provides for an appealto the Supreme Court only on a question of law and not otherwise. The Supreme Courtcan interfere with the conclusion of the Judge only if it is shown that he had erred in lawor has reached a finding which no reasonable tribunal, properly instructed, could havereached.
The burden is on the petitioner to prove beyond reasonable doubt that thestatement complained of was made by the 2nd respondent and that it is false.
On the evidence and concession made by Counsel for the respondents the Judgewas perfectly justified in concluding that the 2nd respondent was an agent of the 1 strespondent and that the speech was made by the 2nd respondent acting as such agentand with the knowledge and consent of the 1 st respondent.
What is forbidden by section 58 (1) (d) of the Ceylon (Parliamentary Elections)Order-in-Council is a false statement of fact in relation to the personal character of thecandidate for the purpose of affecting the return of such candidate. A politician may becriticised or held up to obloquy for his public conduct but the man beneath the politiciancannot be assailed in respect of his honour, veracity and purity by false statements.
The evidence led justifies the determination of the trial Judge that there has beenno ingratitude on the part of the Petitioner.
In her pleadings it was sufficient for the petitioner to allege that the respondentscommitted the corrupt practice set out in section 58 (1) (d) of the Ceylon(Parliamentary Elections) Order-in-Council without specifying the elements constitutingthe offence. The failure to specify that the false statement was made for the purpose ofaffecting her return is a failure to refer to one element of the corrupt practice. At most itis an irregularity which caused net prejudice and no objection on the point had beentaken at the trial.
The charge of filial ingratitude is essentially a reflection on the private character ofthe petitioner and gravely prejudices her. If the allegation is unfounded as here it is afalse statement affecting private character and will offend section 58 (1) (d) of theCeylon (Parliamentary Elections) Order-in-Council.
Case referred to:
Rajapakse v. Gunasekera (1984] 2 Sri LRI. 17-19.
Edward v. Bairstow [1956] AC 14.,
Pioneer Shipping Co. Ltd. v. B. T.P. Tioxide Ltd. [1982] AC 724. 752.
North Louth case. [19 W] 5 0 M & H. 10.
Appeal from the Election Court.
K. N. Choksy. P.C. with Mark Fernando. D. H. N. Jayamaha. Miss. I. R. Rajepakse andNihal Fernando for 1st respondent-appellant in appeal No. 1/84 and for 1strespondent-respondent in appeal No. 2/84.
Mark Fernando with Daya Pelpola for 2nd respondent-appellant in appeal No. 2./84.
H. L. de Silva. P.C. with Gomin Dayasirifor petitioner-respondent in both appeals.
Cur. adv. vult.
December 12, 1984.
SHARVANANDA, C.J.
The petitioner-respondent filed the present election petition in respectof the by-election for the Mulkirigala Electoral District No. 75 held on18th May, 1983. At the said election the 1 st respondent – appellant
was declared elected as the Member of Parliament for the saidelectoral district. The petitioner was one of the unsuccessfulcandidates. By her petition the petitioner sought for a declaration thatthe election of the 1st respondent was void and/or should be setaside, on the ground that a false statement of fact relating to thepersonal character and conduct of the petitioner had been made andpublished by the 2nd respondent (2nd respondent-appellant in S. C.Appeal No. 2/84) in terms of section 58 (1) (d) of the Ceylon(Parliamentary Elections) Order-in-Council, as the agent of the 1strespondent (1st respondent-appellant in S. C. Appeal No. 1/84),and/or with the knowledge and/or consent of the 1 st respondent.
The petitioner set out the allegation relied on by her as follows inparagraph 5 (a) of her petition :
"At a meeting held at Middeniya in the Electoral District ofMulkirigala in support of the candidature of the 1 st respondent forthe U.N.P., held on or about 14th May 1983, the 2nd respondentmadfe a speech immediately after the 1 st respondent had spoken,and while the 1 st respondent was himself present at the platform. Inhis speech the 2nd respondent said that the petitioner who was thedaughter of late Mr.’ George Rajapakse was campaigning for thevotes of the people upon a poster which called for gratitude or"Kalaguna Selakeema" towards the late Mr. Rajapakse. The 2ndrespondent said that on the day that late Rajapakse was leaving SriLanka for open heart surgery in England, he wanted to see hischildren to say good-bye and had gone to the house where theylived, but that the petitioner had shut the door in his face, refusedhim admission and turned him out."
The petitioner further alleged in paragraph 7 of her petition that theaforesaid statement is false and affects her personal character and/orconduct and that the said statement implied –
that she had no love or gratitude, as daughter towards her own
father;
That she was a hypocrite and fraud in asking for votes on thebasis of the peoples' gratitude for her late father who had beenthe former Member of Parliament for Mulkirigala from 1960 to1976.
After trial the Election Judge held that the 2nd respondent, as agentof the 1st respondent and with his knowledge and consent, made afalse statement of fact in relation to the personal conduct of thepetitioner for the purpose of affecting the return of the petitioner ascandidate for the Electoral District of Mulkirigala and therebycommitted a corrupt practice as alleged in paragraph 5 (1) of thepetition, in breach of section 58 (1) (d) of the Ceylon (ParliamentaryEjections) Order-in-Council. Accordingly he declared that the electionof the 1st respondent as Member of Parliament for the ElectoralDistrict of Mulkirigala was void and he certified that as hisdetermination and directed that the respondent should pay thepetitioner a sum of Rs. 2100 as costs. Against the decision of theElection Judge the 1 st respondent has filed S.C. Appeal No. 1 /84 andthe 2nd respondent has filed S. C. Appeal No.2/84. Both Appealswere taken up together for argument.
In Rajapakse v. Gunasekera{ 1) I referred to the limited scope of theappellate jurisdiction of this Court when hearing an appeal from thedetermination of an Election Judge. Section 82(A)(1) of the Ceylon '(Parliamentary Elections) Order-in-Council provides for an appeal tothe Supreme Court only on a question of law and not otherwise,emphasised there at page 5 that –
"This Court cannot review the findings of fact by a trial Judgeunless a question of law is involved in the finding or the finding itself,is in a legal sense a question of law".
If the determination cannot be shown to be erroneous in point of law,it is final and the findings of the Election Judge cannot be upset by thisCourt in appeal. This Court can only interfere with the conclusion ofthe Judge if it is shown that he had erred in law or has reached afinding which no reasonable tribunal, properly instructed, could havereached. Edward v. Bairstow(2), Pioneer Shipping Co., Ltd. v. B.T.P.Tioxide Ltd. (3) (per Lord Rosknill). Therefore this Court is not entitledto intervene unless it is satisfied that the Election Judge hasmisdirected himself in law arid has reached a perverse finding,unwarranted or unsupported by the evidence of record.
I approach the decision of this appeal with the consciousness of thestatutory limitation of the appellate jurisdiction of this Court that itcannot question the correctness of the findings of fact reached by theElection Judge unless they are not supported by any evidence or are
unreasonable or perverse ; if there is evidence to support the finding offact, the finding is final and this Court cannot vary or reverse thedecision unless it is satisfied that the Election Judge has erred on aquestion of law, but must loyally accept the conclusion of fact reachedby him, though uninhibited by any such limitation, it may find or weighthe facts differently. The Election Judge is the tribunal of fact chargedwith the function of finding and assessing qualitatively the factualcircumstances. It is only if the weight given by him to a particularfactor shows a misdirection in law that this Court in the exercise of itslimited appellate jurisdiction will interfere and substitute its owndecision on the supposition that, but for the error of law, the electiontribunal would not have reached such a decision. In the absence ofsuch a circumstance, this Court cannot review and re-evaluate theevidence placed before the Election Judge.
The entire evidence was subjected to a very critical analysis byCounsel for the appellants in an endeavour to persuade us that theElection Judge had erred in his assessment of the evidence beforehim. I have given my anxious consideration to their submissions,having regard to the consequences which will befall the appellants ifthe decision of the Election Judge is upheld. But to accept theircontentions would amount to this Court usurping the function of theElection Judge and transgressing the statutory limitation placed onthis Court in appeal. I cannot, with all respect to Counsel for theappellants, hold that this is a case in which no reasonable tribunalcould have reached the conclusion arrived at by the Election Judge.Counsel rightly pointed to one error of law in the judgment underappeal, where the Judge stated that the essence of the allegation inparagraph 5 (a) is that "the petitioner refused admission to her fatherwhen the latter came to see her". I agree with Counsel that the Judgewas wrong in taking such a narrow view of the allegation contained inthe said paragraph. He had probably been misled by the petitioner'saverments in her petition. In my view, the gravamen of the allegation isthat the petitioner is an ungrateful daughter of the late GeorgeRajapakse. and hence is least entitled to call upon the voters to showtheir gratitude or 'kala guna selakeema' towards her father the lateGeorge Rajapakse by voting for her. The alleged occasion of thepetitioner refusing admission to her father when the latter came to seeher is only one manifestation referred to by the 2nd respondent tosubstantiate his allegation that the petitioner is an ungrateful daughter.However, this misdirection of law did not constrict the view of the
Judge to the totality of the evidence of other instances of ingratituderelied on by the respondents, tending to show that the petitioner is anungrateful child. The respondents sought to support their allegation ofingratitude by reference to three instances. The Judge did not rule outany evidence which the respondents proposed to lead to establishtheir allegation of filial ingratitude. We have the benefit of the finding ofthe Judge on the evidence placed before him by the respondents toestablish their general allegation except on one matter, referred tobelow. In the circumstances the error of law committed by the Judgein his encapsulation of the allegation of the petitioner has not affectedhis judgment. The said error of law does not vitiate his judgment.
The burden lay on the petitioner to prove beyond reasonable doubtthat the statement complained of was made by the 2nd respondentand that the statement was a false statement (Rajapakse v.Gunasekera {supra).
The finding that the second respondent made the impugnedstatement was not challenged in appeal. The 2nd respondent'sspeech was tape-recorded -P 9 (a) and P 10 (a). The passage ofspeech relied upon by the petitioner as having been made by the 2norespondent is P 10 (g). The tape was played in the election court and2nd respondent's voice was identified. The respondents did not gointo the witness box to challenge the evidence of the petitioner and ofthe witness Galappathi who taped the speech, identifying the voiceof the 2nd respondent. The Judge has held that the tapeP 9 (a) contains an authentic record of the speech of the 2ndrespondent and P 10 an accurate transcript of the speech and hasfurther found that the 2nd respondent made the statement set oeft inP 10 {g) in the course of his speech.
At the trial Counsel for both respondents specifically stated thatthey were not challenging the 2nd respondent's agency.
On the evidence and concession made by Counsel for therespondents, the Judge was perfectly justified in concluding that the2nd respondent was an agent of the 1st respondent and that thespeech was made by the 2nd respondent, acting as such agent andwith the knowledge and consent of the 1 st respondent.
What is forbidden by section 58 (1) (d) of the Ceylon (ParliamentaryElections) Order-in-Council is a false statement of fact in relation to thepersonal character or conduct of a candidate for the purpose ofaffecting the return of any candidate. In the North Louth case (4)Gibsen, J., at page 163 stated that –
“A politician, for his public conduct may be criticised, held up toobloquy ; for that the statute gives no redress, but when the manbeneath the politician has his honour, veracity and purity assailed,he is entitled to demand that his constituents shall not be poisonedagainst him by false statements containing such unfoundedimputations".
In this context, it is stated in Halsbury's Law of England, 4th Ed. Vol.15, paragraph 790, pages 431-422 that –
“the false statement of fact need not be defamatory at commonlaw, so long as it is a statement which is calculated to influenceelectors, as for instance, a statement made in a hunting county thatthe candidate shot a fox or a statement made to promoters of totalabstinence that the candidate has taken a glass of wine ; but it isessential that it should relate to the personal rather than the politicalcharacter or conduct of the candidate. The question to bedetermined is what in the circumstances is the true meaning whichthe reader would place upon a statement. The true meaning willdepend on the occasion of the publication, the persons published,the person attacked and the readers intended to be addressed."
Counsel for the 2nd respondent took objection that the petition ofthe petitioner is not in order and should have been rejected in limine onthe ground that the petitioner had failed to plead in the petition, thatthe impugned statement was made for the purpose of affecting thereturn of the petitioner. What the petitioner has stated in paragraph 4of her petition is as follows :
"The petitioner states that the election of the respondent is voidand is liable to be set aside in terms of section 58 (1) (d) of theCeylon (Parliamentary Elections) Order-in-Council …. by reasonof the commission of the corrupt practice of the making of, and thepublishing of a false statement concerning the personal characterand conduct of the petitioner, by the 2nd respondent who was anagent of the 1 st respondent and/or a person who acted with theknowledge and/or consent of the 1 st respondent."
I do not think there is any substance in this objection. It is true that thepetitioner has not specifically referred to one of the elements of theoffence of corrupt practice, viz : that the statement was made for thepurpose of affecting her return, but she has referred to the relevantsection of the Election Order-in-Council defining the offence of corruptpractice and had pleaded that the respondents had committed thecorrupt practice. It would have been sufficient for her to have pleadedthat respondents committed the corrupt practice set out .in section58(1)(d) of the Ceylon (Parliamentary Elections) Order-in-Councilwith respect to her. When she proceeded to specify certain elementsof the offence of corrupt practice, she did something which was notnecessary and hence when she failed to refer to one element of theoffence viz : that the statement was made for the purpose of affectingher return, she failed to state part of something which was notnecessary. At most, the said failure was an irregularity which did notcause and could not have caused any prejudice to the respondents intheir having a fair trial of the petition. It is to be noted that thisobjection was not taken in the lower court.
At the trial, the respondents based their allegation of ingratitudefollowing three instances
that the petitioner shut the door in the face of the lateGeorge Rajapakse, her father, when he wanted to see herand her mother in the house where they lived to say goodbye before he left for open heart surgery in England ;
the petitioner did not go to the Airport, Katunayake whenher father went abroad for a surgical operation ; and
the petitioner had not, to date, built a tomb to deposit herfather's ashes.
In regard to the first and second instances the petitioner in hersworn evidence said that no incident as stated by the 2nd respondentever took place and further stated that on 5.5.76 when her father wasleaving the country, he came to their house, spoke to her and herbrother and advised each of them and requested them to attend totheir studies. According to her, he did not want them to come to theairport but took them by car to their respective schools. Further,before he left the house, he had given them his picture post-cards P 1and P 2 dated and signed by him. She admitted that she did not go tothe airport that day to see him off, the reason being not that she wasindifferent to her father's departure, but because he did not want herand her brother to come there, though she in fact wanted to go to theairport. As against her evidence, there was no contradictory evidenceof any eye-witness. The 2nd respondent though he describedgraphically in his statement P 10 what he alleges to have happenedwhen George Rajapakse want to petitioner's house to bid good bye,did not get into the witness box to contradict the petitioner's versionof what happened on the morning of 5.5.1976 at the petitioner'shouse. When the petitioner gave evidence not even a suggestion wasmade to the petitioner that an incident as referred to by the 2ndrespondent ever took place between the petitioner and her father thatmorning of 5.5.1976. The trial Judge was, in the circumstancesjustified in accepting petitioner's evidence on this point – in fact, anyother finding would on the evidence have been perverse. As regardsthe petitioner's failure to go to the airport, the trial Judge hasaccepted the petitioner's explanation for not going. He has rejectedthe evidence of Kamala Wickremanayake, the 2nd respondent'switness, that the deceased, her brother had expressed at the airportdisappointment at his daughter's failure to come to the airport. He hadcharacterised her evidence as patently tainted and partisan and thatshe was ill disposed towards her niece (the petitioner) seeking apolitical career. A better reason for rejecting KamalaWickremanayake's evidence would have been the belatedness of herstory – according to her she had not communicated the late GeorgeRajapakse's expression of disappointment to anybody nor did sheconvey it to the petitioner her niece nor take her to task, at any time,for her failure. She had kept it locked up in her bosom from 1976 to1983. Further she was not well disposed towards the petitioner as isevident from the fact that she had addressed five or six electionmeetings on the last day in favour of the 1 st respondent and hence herevidence against the petitioner is suspect. There is no good reason forholding that the trial Judge was not justified in rejecting KamalaWickremanayake's evidence as against petitioner's evidence. Then,there are theletters P 3, P 4 and P 7 written by the petitioner’s fatherto the petitioner and her brother which give the lie to KamalaWickremanayake's story of disappointment or displeasure at thepetitioner's conduct. The letter P 4 was written in flight, addressed tomy darling Nero and Shyam' (Petitioner and her brother) advisingthem "Please look after yourselves and do not lose heart that you havelost your father." Counsel for the appellants dissected the letters and
subjected them to an unemotional analysis in an endeavour to showthat they reflected a sense of grief on the writer's part. The trial Judgehas commented that-
"these letters lead to the irresistible conclusion that there was aclose bond of love and affection between the petitioner and herfather. There is no doubt that there is some expression of sadnessshown in some of these letters. But such expressions are naturaland to be expected."
I am not satisfied that this observation is irrational. Perhaps, thedeceased had a premonition of premature demise. I share the trialJudge's conviction "beyond a reasonable doubt that there was nodispleasure between the petitioner and her father".
The petitioner in her petition has not complained of the 2ndrespondent's allegation in his speech that she had not to dateinterned her father's ashes and had so failed to perform her duty byher father. The petitioner in her evidence has stated that her father'sashes had not been interned because of numerous problems. She saidthat members of the Rajapakse family had tried to make politicalcapital of the ashes at the 1976 by-election and the 2nd respondenthimself at the 'General Election of 1977. According to her, therelations were interested in the ashes to advance the interests ofRajapakses' respective candidates. It was not possible in thosecircumstances to entomb the ashes and the petitioner did not give into their requests. With the passage of time, the petitioner hadchanged her mind on the question of entombing the ashes and shedoes not now like to intern the ashes for the reason "Everyday thoseashes are in our room. When I see the ashes I feel as though I can seemy father. Therefore I did not like to entomb the ashes. I feel thatentombing the ashes is like throwing the ashes into the jungle". Thepetitioner has given a very reasonable explanation for not entombingthe ashes. Her conduct does not show any contumacy on her part. Noevidence has been placed before court that such conduct savours ofingratitude or that it is obligatory on the part of children to intern theashes of their parents under any circumstances and that failure to doso, for whatever reason, good or bad is regarded by the community asan act of filial ingratitude. Counsel for the petitioner mentioned casesof some eminent persons whose ashes have not been interned, buthave been otherwise preserved. Applying ordinary norms of filialconduct one cannot say that preserving the ashes of a dead fatherwithout entombing them for the purpose referred to by the petitioner
manifests ingratitude on the part of the children. All that the petitionerhas admitted is that internment of ashes is a sacred thing as far as theSinhala people are concerned, but from that the conclusion cannot bedrawn that preserving the ashes without interning them would beregarded by the Sinhalese community as heinous and smacking ofingratitude on the part of the deceased's children. A court can act onlyon proof of what is generally regarded by the community as an act offilial ingratitude. The facts of this case have no resemblance to thecase of a man having a number of illegitimate children or mistressesand he being described as a man of immoral character. By all acceptednorms the court will readily endorse that description. But, the instantcase is different and evidence should have been led by therespondents to show that the mere non-internment of ashes forwhatever reason is ipso facto regarded by the community as an act offilial ingratitude. The election-judge has not recorded his finding on thismatter. I can very well appreciate the failure of the election-judgmentto make any pronouncement on this issue, when he had no evidenceto guide him, and the petitioner has not admitted that such failure tointern the ashes would constitute ingratitude on her part. In my view,the allegation of ingratitude on this account stands unsubstantiated.
The petitioner has established that the passage in 2nd respondent'sspeech PIO contains a false statement relating to her personalcharacter and conduct which is calculated to mislead the electors toher prejudice. The statement of the 2nd respondent must be judged inthe context in which it was made. The 2nd respondent alleged that thepetitioner was seeking to use her father's name in furtherance of hercandidature on a poster which called for gratitude from the voterstowards her father to whom she herself was an ungrateful daughterand hence was least entitled to cash in on it. The allegation that shewas ungrateful is a false allegation and was calculated to denigrate herand affect her return. It was not a statement of opinion but was astatement of fact in relation to the personal character or conduct ofthe petitioner. Mr. Mark Fernando contended that the statement wasmade in regard to the public or political character of the petitioner as acandidate and not to her personal character, since gratitude to her latefather had been made an election issue by the petitioner. I cannotagree with his submission. The charge of filial ingratitude is essentiallya reflection on the private character of the petitioner. The impugnedstatement affected the candidate beneath the politician. It touched herprivate character. A statement that she was endeavouring toperpetuate dynasty-rule or family bandyism would have been criticismcasting no reflection on her private character but would have beencriticism of her public character and hence would not have constituteda corrupt practice. But to attribute filial ingratitude to any opposingcandidate is to touch on her private character which would gravelyprejudice her and if that allegation is unfounded it is a false statementaffecting private character and will offend section 58 (1) Id) of theParliamentary Election-Order-in-Council.
The election-judge was entitled, in the circumstances to accept andact on the denial of the petitioner who, unlike the case of the petitionerin the case of Rajapakse v. Gunasekera (supra) had not been proved tobe an untruthful witness. His determination cannot be characterisedas irrational or perverse.
This appeal is an appeal on questions of fact and no materialmisdirections in law are involved in it. I dismiss S.C. (Election Petition)Appeal No. 2/84 with costs payable by the 2nd respondent-appellantto the petitioner-respondent and I dismiss S.C. (Election Petition)Appeal No. 1 /84 without costs.
WANASUNDERA, J. – I agree.
ABDUL CADER, J. – I agree.
Appeal dismissed.