097-NLR-NLR-V-56-M.-J.-ABEYWARDENE-Petitioner-and-C.-A.-DHARMAPALA-Respondent.pdf
ROSE C.J.—Abeywardene v. Dharmapala
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■(954Present: Rose C.J., Gunasekara J. and Fernando A.J.M. J. ABEYWARDENE, Petitioner, and C. A. DHARMAPALA,
■■'' Respondent
Election Petition Appeal—-Hakmana Election Petition, No. 10 of 1953
Parliamentary Election—Corrupt practice—Publication of documents—Omission tostate name and address'of publisher—” Inadvertence ”—Ceylon (ParliamentaryElections) Order in Council, 1946, ss. 58 (J) (c), 73A—Ametuliny Act -Vo. 28of 1953, ss. 3, 4.■
The pstitioner sought to unseat the raspondoat on the ground that Uo hadpublished or caused to bt> published certain pamphlets umi luind-lnils which' did not bear upon their face the name- and address ot the pulil'shor. Theevidence disclosed -that the respondent, who was his uwh olo.-i.ou agent,entrusted the publicity side of his campaign to a committee of supporters whosenames and addresses were published to the electorate in a docurm.it. In regardto the impugned documents, while there was no express reference to any pub-lisher as such, thera appeared an entry from which it could reasonably ho in-ferred that the documents were sponsored by the committee. Moreover, theomissions in question afforded no material benefit to the respondent.
Held, that the omissions complained of wore of a trivial nature and arose frominadvertence within the meaning of section 73a of the Parliamentary ElectionsOrder in Council..
Appeal in Hakmana Eloction Petition No. 19 of 1953.
-S. Nadesan, Q.C., with A. K. Premadasa and J. Senathirajah, for thepetitioner appellant.
E. Chilly, with Walter Jayawardene, R. A. Kannangara, A. S.Vanigasooriyar and Carl Jayasinghe, for the respondent.
Cur. ado. vult.
September 20, 1954. Ross C.J.—
The petitioner sought to unseat the respondent on the grounds that hehad been guilty of intimidation, bribery, oxorciso of unduo influence,making false statements of fact about the rival candidates, and the print-ing or causing to be printed various hand-bills and pamphlets, whichdid not bear upon thoir -face the name and address of tho printer andpublisher. At an early stage of the proceedings before the loarnod Elec-tion 0 Judge the charges of intimidation and unduo influence woreabandoned and the matter was contested upon the remaining allegations.
In appeal learned counsel for the appellant did not press tho issuos asto bribery and the making of false statements of fact about tho candidates,the only issue remaining for our consideration being that relating to thepublication of pamphlets and hand-bills.-
Amongst the mattors complained of by the petitioner were a number ofbucket lamps, constructed of paper and card-board, which wore designedfor the illumination of "private, houses and temples during the YVesakcelebrations which took place some two or threo weeks before the pollingday. .Those lamps, it was-stated in evidence, were manufactured by tho
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ROSE C.J.—Abeyvtardene v. Dharmapata
Matara Merchants Limited, and bore the imprint of that prose, but therewas no reference to any publisher or to any person on whose behalf thobucket lamps wero orderod. Upon the lamps wero inscribed tho slogan" a vote for the elophant is a vote for Uharma ”. Tho elephant was thochosen symbol in the oloction campaign for the respondent and tho sloganitsolf is a harmless pun upon the rospondent’s name.
The remaining documonts complained of, which took tho form of hand-bills and pamphlets, wero printed either by the Indra Press or MataraMerchants Limited, and the learnod Election Judge found that in everycase tho imprint of ono or other of those presses was present. In additionwhile thoro was no express reference to any publisher as such, thereappoared an entry relating to “ The committee for tho sucooss ofMr. Dharmapala ” from which the learned Election Judge hold, and wo soono reason to dissent from his view, that it could reasonably bo inferredthat-tho documonts in question were sponsored by the committee.
Section 58 (1) of tho Ceylon (Parliamentary Elections) Ordor in Council,1946 (as amended, with retrospective effect from January 1, 1952, bySection 3 of Act No. 26 of 1953) reads as follows :—■*
“(«) ….
….
boing a candidate or election agent, prints, publishes, distributes
or posts up or causes to bo printed, published, distributed orposted up any advertisement, handbill, placard or posterwhich rofors to any oloction and which doos not bear uponits face the names and addresses of its printer and publisher,
….
….
(/)••••
shall bo guilty of a corrupt practice …. ”
Soction 4 of the Coylon (Parliamentary Elections) (Amendment)Act, No. 26 of 1953, reads as follows :—
“ The following now soction is horeby inserted immediately aftersoction 73 of tho Principal Order and shall have effect as section 73aof that Ordor :—
73a. Upon tho trial of an election petition respecting anoloction under this Order, a candidate or an election agent shallnot be found by tho election judgo to have committed a corruptpractice referred to in Section 68 (1) (c), in relation to any adver-tisement, handbill, placard or poster, if the candidate or oloctionagent satisfies the judge that the omission of the names andaddresses referred to in section 58 (1) (c), or any such name oraddress, as the case may be, arose from inadvertence or from someother reasonable cause of a like nature and did not arise from anywant of good faith. "
The learned Election Judge found that the omissions in question were dueto inadvertence, or to somo other reasonable cause of a like nature. Asregards the facts relating to these matters, the Judge has found that the
ROSE C.J.—Abeywardene v. Dharmapala
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respondent, who was his own election agont, entrusted the publicityside of his campaign iio^a committee of supporters whose names andaddresses were published to the electorate in a document R9. Thiscommittee were given some general instructions by the respondent tothe effect that they should in their pamphlets and hand-bills disclosethe source from whieh they emanated. It also appears that the respon-dent advised them td consult a Proctor. Apart from that general instruc-tion, the respondent would seem not to have concerned himself with thecontents or form of the documents produced by his committee exceptthat it appears on one occasion that he was shown some completed pamph-lets, after they had been distributed in the electorate, and had expressedno displeasure..
It is further to be noted that the omissions complainod of by thepetitioner afforded no material benefit to the respondent. The bucketlamps and the pamphlots and documents in question were not of adefamatory nature and the expenditure in connection with their produc-tion was properly included in the respondent’s return of oloction expenses.Moreover, I consider that the references to tho Indra and MataraMerchants presses afforded sufficient identification for all tho practicalpurposes contemplated by the Elections Ordor-in-Council. Further,the references in the various pamphlets and hand-bills to tho “Dharma-pala Committee” could, in my view, reasonably have been hold to haveafforded a sufficient indication to tho olectors not only that it wras thecommittee that had published tho documents on which tlioir nameappeared but also, having regard to the document R9 to which I havepreviously referred, of the identity of the persons forming tho committeo.
In effect, therefore, there had been a substantial compbance with therequirements of the Order-in-Council and the omissions—if omissionsthere were—were clearly of a most trivial nature, which affordod nomaterial benefit to the respondent. That being so, it seems to us that thelearned Election Judge was fully entitled on the material available to himto be satisfied that the omissions oomplained of wore duo to tho inadver-tence of the relevant persons, that is to say, the canclidato himself and thocommittee who conducted his publicity campaign, and did not arise fromany want of good faith.-
Having regard to the basis on which the loarned Election Judge cameto his conclusion on this part of the case, it seems to mo to bo unnecessaryto consider the further ■ point which was argued boforo us by learnedcounsel for the respondent, that having regard to the course of dealingsbetween the respondent and his committee, it could not reasonablybe held that the respondent had either printed or caused to bo printedthe allegedly offending .documents.
• For these reasons the appeal is dismissed 'with costs.
Gunaskkara J.—I agree.
Fkrna^do A.J.—I agree.
Appeal dismissed.