037-SLLR-SLLR-1980-V-2-MUTTETUWEGAMA-v.-PILAPITIYA-AND-OTHERS.pdf
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MUTTETUWEGAMA v. PILAPITIYA AND OTHERSCOURT OF APPEALABDUL CADER, J.
ELECTION PETITION 5/77 KALAWANA
NOVEMBER 27, 28, 29, 30 and DECEMBER 13, 14 and 17,1979
Election Petition – Ceylon Parliamentary Elections Order in Council 1946 (asamended) sections 58(1 )(d); 77(c); 58(A); 80A(1); 80B(d) – Election challengedon the ground of commission of corrupt practices of making or publishing falsestatements in relation to the personal character or conduct of the petitioner -Agency – Burden of proof.
The second respondent was the principal campaigner for the first respondentcandidate, living in the first respondent’s house, looking after all his office work,organising all his political work and speaking at meetings. He admitted that hewas the organising secretary. The offensive articles were all published and someof them personally distributed by the second respondent. The first respondentfailed to give evidence in rebuttal.
Held:
Agency must be proved beyond reasonable doubt. When an agent is guilty of acorrupt practice it affects the candidate without regard to the consent of thecandidate. “. . . . the substance of the principle of agency is that if a man isemployed at an election to get you votes, or if, without being employed, he isauthorized to get you votes, or although neither employed nor authorized, hedoes to your knowledge get you votes, and you accept what he has done anadopt it, then he becomes a person for whose acts you are responsible in thesense that, if his acts have been of an illegal character, you cannot retain thebenefit which those illegal acts have helped to procure for you.”
Cases referred to:
Premasinghev. Bandar a 69 NLR 160.
Jayasena v. Illangaratne 73 NLR 35 at 40.
Great Yarmouth Case 5 O’M & H 178.
Bolton Case 2 O’M & H 141.
Bewdley Case 1 O’M & H 18.
Mohan Singh v. Bhanwarlal AIR (1964) 1370.
Election Petition.
H. L. de Silva with K. Shanmugalingam, Sidath Sri Nandalochana, PeterJayasekera and M. B. de Silva instructed by R. N. J. Attanayake for the petitioner.
A. C. Gooneratne, Q.C. with P Navaratnarajah, Q.C., Daya Pelpola, IkramMohamed, Mrs. S. Jayalath, Miss C. Caderamanpulle and Miss 7. Wimalasekerainstructed by T. D. M. Samson de Silva for the first respondent.
Siva Rajaratnam with Daya Pelpola instructed by Palitha Wanatunga for thesecond respondent.
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M. H. Amit with P. Karalasingham instructed by W. Malawana for the thirdrespondent.
Cur vult adv.
28th January, 1980.
ABDUL CADER, J.
The petitioner was a candidate at the General Election for theelectorate district of Kalawana held on 21st July, 1977. The 1strespondent and two others contested him and the 1st respondentwas successful by a majority of 1662 votes over the petitioner. Thepetitioner has now petitioned this Court that the election of the 1strespondent as a member was null and void on the ground of thecommission of corrupt practices of making or publishing before thesaid election and for the purpose of affecting the return of thepetitioner, false statements of fact in relation to the personalcharacter or conduct of the petitioner and thereby the 1st respondenthad committed an offence within the meaning of section 58(1 )(d)read with section 77(c) of the Ceylon Parliamentary Election Order inCouncil 1946 as amended. The alleged false statements are found inP6, P18 and P19, and are set out fully in paragraphs 3, 4 and 5 of thepetition. It is not necessary to reproduce these statements here forthe reason that it is not denied that these statements are found in thethree papers which have been produced and because the falsity ofthese statements has not been denied.
In respect of charge 1, the petitioner has urged (1) that the articlein P6 was written by the 3rd respondent as an agent of the 1strespondent or with the knowledge and/or consent of the 1strespondent; (2) and was published by the 2nd respondent and (3) asan agent of the 1st respondent or with the knowledge and/or consentof the 1st respondent. In respect of the 2nd charge, the petitionerhas submitted that the statement was published (1) by the 2ndrespondent and (2) as an agent of the 1st respondent or with theknowledge and/or consent of the 1st respondent. In respect of the3rd charge, the petitioner has urged that (a) the 2nd respondentpublished that false statement and (b) as an agent of the 1strespondent or with the knowledge and/or consent of the 1strespondent. There is a fourth charge in paragraph 6 of the petition. Itis based on the 3rd charge (a) that the facts and circumstances setout in paragraph 5 constitute an illegal practice and false reports innewspapers within the meaning of section 58(A) of the CeylonParliamentary Election Order in Council 1946 as amended and(b) that the 2nd respondent committed this offence as an agent ofthe 1st respondent or with his knowledge and, therefore, the election
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is null and void in terms of section 58(A) read with section 77(c) ofthe said Order in Council.
As regards the allegation against the 3rd respondent that he wasthe author of the article complained of in charge 1 appearing inparagraph 4 of the petition, the printer has not been called to saywhether the Walter Jayawardena in P6 was, in fact, the 3rdrespondent. There was no witness on the petitioner’s side to link upthis Walter Jayawardena with the 3rd respondent. The 2nd respondentwho gave evidence denied any knowledge as regards whether the3rd respondent was the author of the said article. In fact, though thearticle was purported to have been written by one WalterJayawardena, there is not even evidence that, in fact, it was a WalterJayawardena, not to speak of the 3rd respondent, who wrote thearticle. Therefore, the case against the 3rd respondent fails and isdismissed with taxed costs payable by the petitioner.
Mr. de Silva then urged that the 1st respondent is guilty (evenwithout regard to the principle of agency through the 2ndrespondent) for the reason that these 3 papers were in circulationalong with P7, P16, P17 and P20 to P22; these papers contained onlymaterial beneficial to the 1st respondent and injurious to thepetitioner; they carried the symbol of the U.N.P. with pictures of the1st respondent and they carried information of election meetings,speakers and messages from well-wishers. There is no doubtwhatsoever that these papers purported to be party paperspublished to benefit the 1st respondent. In fact, in P6, the paper“Jana Awiya” of 29.4.77, it claims to be an official organ of the centralorganisation of the U.N.P. in the Kalawana electorate. The 2ndrespondent’s evidence is an admission of the evidence given by thepetitioner and his witnesses that “Jana Awiya” and “KalawanaJanatha” were in circulation during the time of the election in theKalawana electorate. Mr. de Silva submitted that if it had been anisolated and an anonymous publication, it cannot be said that the 1strespondent had knowledge or consented to that publication, but, inthis case, there has been an open claim to be a party paper with acertain regularity of publication and the name of the publisher hasbeen given in some of these papers as the 2nd respondent. Inaddition, the only bill of election expenses submitted by the 1strespondent P3A had been printed in the same press in which P6 hasbeen printed. There is further evidence that in the motorcade thatpassed the petitioner’s office on 20th July, 1977, the 1st respondentwas in it and when the petitioner followed that motorcade and thepetitioner was met by several persons who had said that they hadreceived P19 from the motorcade. He has, therefore, urged that thereis a presumption that the 1st respondent was aware of the circulation
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of these papers and there was a burden on the part of the 1strespondent to have disclaimed these false allegations during theelection or made a complaint to the police or any person in authorityabout these false statements contained in the papers which purportsto be the official publication of his if, in fact, he was not responsible.He further submitted that inasmuch as the 1st respondent has failedto give evidence disclaiming knowledge and/or responsibility, theCourt should hold that the 1st respondent failed to do so for thereason that he could not contradict what these papers purport to be,namely, that they were, in fact, his party papers and that he hadknowledge of the contents of these papers, especially the falsestatements made against the petitioner.
There is no direct evidence whatsoever that the 1st respondenthad knowledge of these papers. Weragama and Gunaratne statedthat the 1st respondent was in the motorcade, but the petitioner didnot say so. I, therefore, give the benefit of the doubt and hold that ithas not been proved that the 1st respondent was in that motorcade.There is, therefore, no link between P19 and the 1st respondent. The2nd respondent denied that he ever brought to the notice of the 1strespondent the existence of these papers during the election.Therefore, the only evidence available against the 1st respondent iscircumstantial evidence, namely, that these papers purported to beparty papers and they contained election literature to assist the 1strespondent. I am unable to come to the conclusion from thesecircumstances that the 1st respondent, in fact, had knowledge of theexistence of these papers. It is quite possible that he had knowledgeand even probable that he had such knowledge, but I find it difficultto take the next step and hold it proved beyond reasonable doubtthat he, in fact, had knowledge. It can well be that a party well-wishercan keep on publishing a series of papers eulogizing a candidate. Hemay publish the programme at election meetings, messages carryingpictures of the candidate and his bio-data, but all of these will notestablish knowledge on the part of the candidate. The failure of the 1strespondent to give evidence may at best be considered an additionalcircumstance in the chain of circumstantial evidence against the 1strespondent unless the circumstantial evidence leads to the only onepossible conclusion, namely, that the 1st respondent did, in fact, haveknowledge. It is only thereafter that I can draw an adverse conclusionagainst the 1st respondent for his failure to give evidence.
Silva, J. stated in the case of Premasinghe v. Bandar a 01 as follows:-
“From all these decisions, barring that of Nagalingam, J. withwhich I have disagreed, it is reasonable to draw the followingconclusions:-
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that any charge laid against a successful candidate by apetitioner in an election petition should be proved beyondreasonable doubt before a court could satisfy itself of suchcharge;
that suspicion however strong it may be does not amount toproof of any charge;
that even a high degree of probability is not sufficient toconstitute the proof required to establish a charge, and;
that a court should be slow to act on one witness’ wordagainst another’s even if the word of the person whosupports a charge rings true when that constitutes the onlyevidence of such charge.”
With respect, I agree and hold that the duty is cast on thepetitioner to prove beyond reasonable doubt knowledge or consenton the part of the 1st respondent and the petitioner has failed to doso.
I have not taken into consideration the message which purports tobe that of the 1st respondent in P7 for the reasons:-
there is no proof that it was the 1st respondent who wrotethat article.
there is no proof that 1 st respondent saw that article, and
P7 was produced only to prove circulation and not for theproof of its contents.
Coming to the charges against the 2nd respondent, there is a vastmass of evidence against the 2nd respondent seeking to prove thathe was responsible not only for the printing of these papers, but hehad also published the papers in the sense of distributing the papersin the electorate. As regards oral evidence against the 2ndrespondent, the most important witness for the petitioner was C. B.Senanayake. He stated that he had received from the hands of the2nd respondent all the 3 papers that contained the offending articles,P6 of 29th April, 1977, on 30th April, 1977, at the Manana office; P18from the same office from the 2nd respondent and P19 from the 2ndrespondent on the road opposite the U.N.P. office at Manana. Thiswitness was a counting agent for the petitioner. He addressedmeetings for the petitioner. He made a complaint to the police when,according to him, the three respondents, along with others, hadabused the complainant in front of his house on the night of 19.6.77.
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His fortunes fluctuated with the change of Government, working inManana or close to Manana when the petitioner was the member forthe area and shunted to Welimada after the 1st respondent won the1965 election. On the one hand, he was an ardent supporter of thepetitioner and, on the other, he had reasons for a substantialgrievance against the 1st respondent. His evidence was nottrustworthy, not merely for the above reasons, but also because hewas not honest in respect of several matters. He first stated that hemade no complaint to the police. When he was confronted with thedate, he said he could not remember. Then, he said there was noneed for him to complain against the 1st respondent. When askedwhether there was some incident opposite his house in 1977, hecame out with the answer that he could not remember the date. Hethen gave no answer to what his age was in 1977. When he wasconfronted with his signature in the Information Book, for the firsttime, he admitted that he made a complaint against the 1, 2 and 3respondents (pages 80 to 82). Strangely, his complaint was againsteven the 1st respondent who was alleged to have gone opposite hishouse and shouted: “ticket hora”, “diary hora” and “harak hora”, amost unlikely thing to be done by a candidate. According to him, hethought that these names, “diary hora, “ticket hora” and harak hora”applied to the petitioner, and denied the suggestion of the 1strespondent’s counsel that these referred to him for various acts thathe had done during the course of the election campaign. Then, thereare contradictions in his evidence. The witness stated that hecollected P6 from the 1st respondent on 30th April, 1977, andthereafter handed over to the petitioner, whereas the petitioner statedthat it was on the 29th morning that the witness gave the paper tohim. The witness stated that he took P18 to the petitioner to theKatalana meeting and handed over to the petitioner at about 1:30 p.m.before the meeting started, and that he left the meeting before themeeting was concluded, whereas the petitioner stated that it was atthe end of the meeting that the paper was given to him by thewitness after he had spoken. In fact, the witness stated that he didnot wait till the petitioner made his speech (page 92). I do not believethis witness. I
I then have the evidence of witness John Singho. His evidencefalls into a different category. He was a supporter of the CommunistParty and had worked for that party. He says that he was dissatisfiedwith the petitioner because the petitioner did not assist him to have afriend of his, Davith Singho released from police custody. He had toldthe people in the neighbourhood that he would not work for thepetitioner in the 1977 election; whereupon the 2nd respondent whowas in the U.N.P. office at Watarawa called him and asked him to jointhe U.N.P. and work for that party. Thereafter, the 2nd respondent met
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him in his house and told him that he would be given a job as aconductor when the U.N.P. came into power and at the 2ndrespondent’s request he went to Bentarakade and there the 2ndrespondent asked him to make a statement to be published in hisnewspaper to the effect that he had joined the U.N.P. He wastempted by the offer of a conductor’s job and he signed a statementdictated by the 2nd respondent on his own behalf written by anotherperson. Sometime later he met Subaneris who told him about hisarticle appearing in P6 and being distressed that though he gave astatement for publication, he was not given a copy of that paper,contacted the 2nd respondent at the Manana office and received apaper from him. He says that in addition, on a later date, he receiveda copy of P18 from the 2nd respondent at the Manana officealthough by that time the 2nd respondent knew that this witness hadabandoned the U.N.P. and rejoined the Communist Party. This latterstory is an utterly impossible story to be believed. The witness statedthat his change of front took place for the reason that he discoveredthat there was no likelihood of his becoming a conductor with whichhe had upbraided the 2nd respondent. The evidence of this witnesshas the virtue of corroboration from P6 where his article appears.Had he not added the story of delivery of a copy of P18 to him by the2nd respondent, I would have been inclined to consider hisevidence, that the 2nd respondent collected from him the article inP6, favourably. But the subsequent story makes his evidence even asregards P6 suspicious. He is a man who had changed sides notonce but twice, and he changed first because the petitioner wouldnot do a wrong thing. I cannot place any reliance on his evidenceimplicating the 2nd respondent in this transaction. I, therefore, rejecthis evidence. It is also to be noted that Mr. de Silva stated that hewas not depending on the evidence of this witness to prove thecharge, but was merely leading the evidence as part of thetransaction (page 140). I
I have not considered so far the question whether there was, infact, a U.N.P. election office at Manana. While the petitioner insistedthat there was one, the 2nd respondent denied. A decision on thismatter would have been necessary if I were to accept Senanayake’sevidence, but I have held that his evidence is not worthy of credit. Ihave no hesitation in holding that there was, in fact, an election officeat Manana. The petitioner stated that he saw a large board in thegarden of Karunawathie to the effect: “U.N.P. ELECTION OFFICE.”There is the admission of the 2nd respondent that Manana is themost important village in the entire Kalawana electorate and, in fact,forms the centre of that electorate. Not only the petitioner, but eventhe S.L.F.P. candidate had an election office at Manana. Above all,there is the evidence in P9 to P12A wherein the 2nd respondent
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himself had informed the police that his address for the purpose ofissuing a loudspeaker license was the U.N.P. Election Office, Manana.
As against all this evidence, the 2nd respondent stated thatbecause the previous land owner had been penalised by acquisitionof his land for the reason that he had given his land for an electionoffice in 1970, people were frightened from giving their lands for thepurpose of an election office in 1977. I am not impressed with thisexplanation. The 2nd respondent admitted that the U. N. P. workerswere in the habit of meeting in the house of Liyanaratne in Mananawhenever they had to discuss any matters. If Liyanaratne was notfrightened to make his house available for party discussions, I amunable to understand this story of supporters being frightened ofpossible acquisition. Nor did it deter Karunawathie from working veryhard for the 1st respondent as the president of the Kantha Samithi,so much so that she was rewarded with a J. Pship after the GeneralElection. Nor did this deter others in other villages like Watarawa andSinhalagoda from giving their lands for election offices and electionmeetings.
Yet another circumstance put forward by the 1st respondent wasthat Karunawathie’s house was too small with a large number ofresidents, including a young woman and with two houses in closeproximity to her house within the same garden, both of which wereoccupied by Communist Party sympathisers, so that it was not alikely place for a U.N.P. election office. I do not think that thesecircumstances could have proved an obstacle.
The 2nd respondent did given an explanation why he gave a falseaddress that there was an election office at Manana, but I am notconvinced that he is speaking the truth on this matter. It is difficult tobelieve that the central election office of the 1st respondentfunctioned at Delwala which was outside the Kalawana electorateand about 12 miles from Manana by road. Besides, if Delwala wasthe election office, I cannot see how there could be any difficulty forthe police to communicate with the 2nd respondent at Delwala or toissue a permit to the Delwala address. I hold that there was a U.N.Pelection office at Manana. I
I now proceed to the other evidence available against the 2ndrespondent. There is the evidence of the petitioner that he saw amotorcade passing Manana at about 8 a.m. on 20.7.77 with the 2ndrespondent in the leading jeep. When he followed that motorcade, hewas stopped by various persons at various places who told himabout the distribution of P19 and questioned him about it. The 2ndrespondent stated that there was no motorcade of that sort but, infact, he was at Delwala with the 1st respondent and several other
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party supporters during the whole of that day. Karunawathie, too,supported the 2nd respondent. The 2nd respondent contradictedhimself when he first stated that the first party left the 1strespondent’s house after deliberation at about 6 p.m. but when hewas questioned as regards the distances of the various pollingbooths which were scattered over a distance of 72 miles and thatsome of these villages were not accessible by motor vehicles, thewitness turned round to say that people started leaving in batchesafter lunch. I do not think that in an electorate of this size anycandidate would have taken the risk of summoning his polling agentmiles away from the polling booths on the day before the election togive last minute instructions. I should think that instructions wouldhave been given earlier and if there were any further instructions tobe given, a messenger would have been sent for that purpose. It is,therefore, most likely that the 2nd respondent went to these variousvillages in the motorcade, that the petitioner spoke of, to make sureabout the arrangements and to give further instructions. As betweenthe petitioner and the 2nd respondent, I have no hesitation inbelieving the petitioner. The petitioner was careful to speak to onlywhat he saw and heard personally and did not attempt to pad it withfalsehoods. Thus, he spoke of a name board at Manana and nothingmore. He spoke of the 2nd respondent in the motorcade, but not ofthe 1st respondent, even though the other witnesses spoke about it.His evidence was given with restraint and with due regard to thetruth. On the other hand, the 2nd respondent evaded many questionswith the formula ‘I do not know’, so much so that he answeredquestions which were well within his knowledge with the sameformula. For example, as regards whether the party had apropaganda section; whether Nepo Singho drove the 1strespondent’s car and so on, the answer was ‘I do not know’. Hecontradicted his evidence on several matters and denied manythings which he should be presumed to have known as the chiefelection agent of the 1st respondent. He was a witness of no meanintelligence, but floundered because he was trying to shield himselfagainst the truth which he tried so hard to conceal. He did notimpress me as a truthful witness. Therefore, I believe the petitioner’sevidence that there was a motorcade on this day and that the 2ndrespondent was in that motorcade. This motorcade is importantbecause there is the petitioner’s evidence that when he followed themotorcade, his supporters told him about the distribution of P19 andquestioned him about it. I accept the evidence of the petitioner thatWeragama and Gunaratne among others told him about thedistribution of P19. It is not unreasonable to infer, therefore that P19was distributed by some person from within the motorcade andwhoever the distributor was, the 2nd respondent had knowledge ofthat distribution.
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Weragama and Gunaratne are two witnesses who gave evidenceon charge 3. Their evidence was that they received P19 at Pimburaand Sinhalagoda, not directly from the 2nd respondent, but fromothers to whom the 2nd respondent had handed over a heap ofpapers. Both admitted that they were members of the CommunistParty. The evidence of Weragama is contradicted by the petitioner inthat Weragama stated that he received this paper at 7.30 a.m. atPimbura which is 7 miles away from Manana, whereas the petitionerstated that he saw the motorcade passing Manana at about 8 a.m.Weragama stated that he handed over to the petitioner the paperwhen the petitioner got down from his car in front of the office. Later,he said that he did not give the paper to him, but told him about itand that was on the verandah of the office. Both versions werecontradicted by the petitioner when he stated that his car wasstopped at Pimbura and he was shown the paper.
Gunaratne stated that the petitioner stopped the car on the roadand he went up and spoke to him, whereas the petitioner stated thatthe witness stopped his car and showed him the paper. Mr. de Silvacharacterized these contradictions as minor. As they were partysupporters, I took the view that these contradictions would affect thecredit of these witnesses. However, on further consideration, I havedecided to accept their evidence for the reason that there iscorroboration of their evidence by the petitioner when he says thatthese two witnesses told him about the distribution of P19 when hefollowed the motorcade. As I have said earlier I find the petitioner atruthful witness. If Weragama and Gunaratne told the petitioner aboutthe receipt of these papers, it is reasonable to infer that they receivedand read the papers before they spoke to the petitioner about it.They both stated that they saw the 2nd respondent hand over abundle of this paper to some unknown person. On this matter, thereis obviously no corroboration by the petitioner, but once again it isnot unreasonable to infer that it was the 2nd respondent who wasseen by the petitioner in the motorcade who handed over the papersto two unknown persons in these two villages for the purpose ofdistribution because the 2nd respondent was playing an importantpart in this election and, according to the imprint on P19, he was thepublisher. I, therefore, hold that the evidence of these two witnessesthat the 2nd respondent handed over a heap of P19 to two unknownpersons is true.
Objection was taken to the admission of this evidence for thereason that these two names were not given in the summary ofwitnesses filed in accord with my order. Counsel for the petitionerstated that since the 2nd respondent did not hand over P19 to thesetwo witnesses, “unknown persons” have been specified in the
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summary because it was sought to prove that the distribution by the2nd respondent was to unknown persons and that would satisfy therequirement of section 80B (d). I agree with the petitioner and admitthis evidence. I hold it proved that the 2nd respondent distributedP19 at Pimbura and Sinhalagoda on 20th July, 1977.
P6, P18 and P19 bear the imprint that the publisher of thosepapers was Nimal Chandrasiri. It is the petitioner’s case that NimalChandrasiri is the 2nd respondent which the 2nd respondent stoutlydenied. The 2nd respondent contended that the informationcontained in the imprint is by itself no proof that it was he whopublished these papers in the absence of any evidence from theprinter. I am in agreement with this submission, but I find that there isample circumstantial evidence which go to establish beyondreasonable doubt that Nimal Chandrasiri referred to in the imprint isthe 2nd respondent.
The 2nd respondent admitted that he saw the two copies of “JanaAwiya” but stated that he saw only the headlines. His explanation forhis failure to read the rest is that he was hard pressed for time. This, Ifind difficult to believe; for, as the chief worker for the 1st respondent,it was his business to do everything possible to help the 1strespondent to succeed in the election. It was, therefore, his businessto find time to read everything that would support his candidate.These papers are, after all, not very large but merely a matter of oneor two sheets, and to say that he contented himself with reading theheadlines and his curiosity did not extend to the contents of thepaper is utterly incredible. In my view, it should have been hisbusiness to read the entire paper which, I am certain, he has done.
P7 is the paper which he admitted seeing the headlines. P7contains a contribution by the 2nd respondent. It is thus difficult toimagine that he would not have read his own article, appearing in P7.
Counsel for the respondent submitted that no one ever cares toread the imprint in a newspaper. This is true, but election literature donot come within the category of daily newspapers. As the chiefelection agent, the 2nd respondent would have been concerned toknow who this benefactor was, who did so much propaganda onbehalf of his candidate, and when he did look into the paper to notethe name of this benefactor, he would have been confronted with hisown name. He admits that there was no other person by this name inManana except for little boys whose names he would not know. If hewas not the publisher, he would have been concerned that his namehas been falsely given and one would expect him to rush to the 1strespondent with this information and, together with the 1st respondent,
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one would expect the 2nd respondent to have taken all thenecessary steps to disown this publication. In addition, I have heldearlier, he was aware personally of the publication at least of P19which, too, bears the imprint that he is the publisher.
As regards the “Kalawana Janatha”, the 2nd respondent deniedthat he ever saw that paper, but there was one important admissionmade by him which once again goes to show that he is not speakingthe truth. He admitted that some youth leaguers told him that"Kalawana Janatha” was being distributed in that area and that oneof these papers contained information that several communist partysympathisers were joining the U.N.P. Yet, this chief organiser for the1st respondent's campaign wants me to believe that he was notinterested in going through the papers to find out who these personswere who were crossing over into his party. Since some of thesepersons who crossed over could be important people who couldcarry a substantial weight in the election, the 2nd respondent couldnot but be interested to know the names of such supporters. Hestated that he was satisfied with the information that he could obtainfrom the U.N.P. youth leaguers, but that should have been no bar togo through the paper itself. P6 is the paper that carried thisinformation. According to the imprint on P6, the publisher's name wasNimal Chandrasiri. I believe the 2nd respondent saw not only P6, buteven other copies of the “Janatha.” After all, it was his business tolook for all literature that was published for and against the 1strespondent, to study them carefully and to do what he could to fosterthe campaign for the 1st respondent. The petitioner stated that whenSenanayake came and told him about the “Kalawana Janatha”, hetold him to carefully collect all the literature published by the 1strespondent’s supporters and to bring them to him. This is what anycandidate and his important supporters would do. I imagine the 2ndrespondent as an intelligent, young man in whom the 1st respondentreposed sufficient confidence to make him his chief electionorganizer would have done what any normal, reasonably prudentman would have done even as the petitioner did. All reasons leadonly to one conclusion, that the 2nd respondent did have knowledgeand that he was, in fact, the publisher of the papers P6, P17, P18,P19, P21 and P22.
Yet another matter that affects his credibility is his assertion that henever saw “Kalawana Tharuwa”, the paper of the Communist Party.But, nevertheless, he admitted that it would have been necessary tofind out false propaganda against his candidate, so that it could berefuted. I cannot understand how he could have refuted falsepropaganda if he did not make it a point to get hold of every single“Kalawana Tharuwa” that was published and assiduously study
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every single content therein. He admitted that he knew this paperwas in circulation within the electorate.
Yet another circumstance affecting his credibility would be thepossible circumstance that the 2nd respondent appears to haveearlier decided to father the publication of these papers on oneNimal Chandrasiri Attanayake. The first witness on his list P23 is themanager of the Sasthrodaya Press, Ratnapura, to produce allmanuscripts submitted in respect of the publication of “Jana Awiya'and “Kalawana Janatha”. The 2nd witness is the proprietor ofDodangoda Press to give evidence in respect of the printing of “JanaAwiya” and the 5th witness is Nimal Chandrasiri Attanayake. None ofthese witnesses was called by the respondent. When the 2ndrespondent was questioned whether he gave instructions to citethese witnesses, he denied any knowledge. After some difficulty, headmitted that he knew Nimal Chandrasiri Attanayake, but he statedthat he was a man from Wennappuwa. Although he met him after thisaction was filed, he said he did not even speak to him though hisname appears on the list as a witness. He could not give anyexplanation why these names of persons appeared on his list. I thinkthat Mr. de Silva’s submission that originally the respondent haddecided to place evidence that it was this Chandrasiri Attanayakewho was the publisher of these papers and later abandoned thatdecision probably because he could not establish it is quiteplausible.
A person is said to publish when, inter alia, he puts anything intoprint for purposes of circulation. There is evidence that these paperswere distributed in the electorate at election meetings and otherwise.The 2nd respondent himself admitted that youth leaguers told him ofthe circulation of this paper in different villages. Whoever thedistributor be, the 2nd respondent himself as the publisher of thepaper was guilty of publication of all material contained in the papersthat he published, of which we are only concerned with P6, P18 andP19 which contained the three offensive articles. In addition I haveaccepted evidence that the 2nd respondent personally distributedP9 at Pimbura and Sinhalagoda.
These three articles had been described by the petitioner as falseand malicious and in addition to his evidence, there is the evidenceof Dr. Colvin R. de Silva who expressly denied the truth of the articleappearing in P19. No attempt was made to prove the truth of any ofthese articles. There is not doubt that all these 3 articles were false tothe knowledge of the 2nd respondent.
These articles were published obviously for the purpose ofinfluencing the voters of that electorate against the petitioner. The
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petitioners gave evidence to what extent that he and his supporterswere concerned when P19 was distributed just a day before theelection, because he would not be in a position to reject that falseallegation in writing. Even the articles in P6 and P18 were damagingand that must be the reason why they were published. It is notpossible to access to what degree these articles influenced thevoters, but the very fact that they were published would support thecontention that they were intended to influence the electors and thatthey did, in fact, influence the electors.
I find that the 2nd respondent committed corrupt practice ofpublishing false statements of fact in relation to the personalcharacter of the petitioner within the meaning of section 58(1) (d)read with section 77 (c) of the Ceylon (Parliamentary Elections) Orderin council, 1946, as amended on charges 1 to 3.
In respect of charge 4 based under section 58A, now that I heldthe 2nd respondent was responsible for the publication of thestatement contained in charge 3, I am of the opinion that he is guiltyof illegal practice under section 58A.
Mr. Gooneratne contended that this section should be read withsection 80A (1) of the Order in council and all persons mentioned inthis section, namely, “the proprietor, the manager, the editor, thepublisher or other similar officer” should also have been madeparties.
I do not agree with this contention. I find the 2nd respondent guiltyon charge 4, too.
The 2nd respondent admittedly was the principal campaigner forthe 1st respondent, living in 1st respondent’s own house, lookingafter all his office work and organising all his political work andspeaking at meetings. In fact, he admitted that he was the organisingsecretary. The 1st respondent has not chosen to give evidence inrebuttal of this evidence.
In the case of Jayasena v. Illangaratne(2> Sirimane, J. stated asfollows:-
“The law relating to agency in election matters is clearly set outin the oft quoted passage in the judgment of Channell, J. in theGreat Yarmouth case® “The law of agency in election mattershas been very fully brought before us, and one thing which isquite clear – not only upon this question of agency but uponsome of the other questions with which we have to deal – is that
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the ablest Judges have always said that you cannot lay downdefinite rules applicable to all cases. But there are principles,and the substance of the principle of agency is that if a man isemployed at an election to get you votes, or if, without beingemployed, he is authorised to get you votes, or if, althoughneither employed nor authorised, he does to your knowledgeget you votes, and you accept what he has done and adopt it,then he becomes a person for whose acts you are responsiblein the sense that, if his acts have been of an illegal character,you cannot retain the benefit which those illegal acts havehelped to procure for you.”
These principles must be applied to the facts of each case,and these facts have to be ascertained by the trial Judge.
One has also to remember that agency in election law has tobe proved beyond reasonable doubt. As Meller, J. observed inthe Bolton casew, “There is nothing more difficult or moredelicate than the question of agency, but if there be evidencewhich might satisfy a Judge, and if he be conscientiouslysatisfied that the man was employed to canvass, then it mustbe held that his acts bind his principal.”
Dealing with the evidence relating to agency Blackburn, J. inthe Bewdley case(5> said, “I take it that in each case the Judgemust bring common sense to bear upon it, and satisfy himselfwhether it is sufficient or not. I do not think that such a questionas that would turn upon minute particulars as to what particularwords were used or what particular thing was done, but uponthe common sense broad view of it.”
Adopting the standard of proof set down above, namely, proofbeyond reasonable doubt, I am satisfied that the 2nd respondentfunctioned as the agent of the 1st respondent.
In the case of Mohan Singh v. BhanwarlaliB) Shah, J. stated asfollows:-
“The next question to be considered is whether the publicationof the leaflets amounts to commission of a corrupt practicewithin the terms of S. 123(4) of the Representation of the PeopleAct, 1951. Section 123 sets out what the diverse corruptpractices recognised by the Act are. Clause (4) defines acorrupt practice by publication of false statements calculated toprejudice the prospects of a candidate’s election. To bring acorrupt practice within the purview of cl. (4) there must be apublication by a candidate or his agent or by another person
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with the consent of the candidate or his election agent: thepublication must contain a statement of fact which is false andwhich the candidate or his agent believe to be false or does notbelieve to be true; the statement must be in relation to thepersonal character or conduct of the candidate; and it must bereasonably calculated to prejudice the prospects of thecandidate’s election. The expression “statement of fact” inS. 123(4) includes not only an express imputation but also aninnuendo if one such may reasonably be raised from thelanguage in which it is couched, and the manner of itspublication.”
Examining the case against the 1st respondent without regard toagency, I dismissed the case against the 1st respondent. Thejudgment quoted above makes it clear that when an agent is guilty ofa corrupt practice, it affects the candidate without regard to theconsent of the candidate.
Section 77 reads as follows:-
“The election of a candidate as a Member shall be declared tobe void on an election petition on any of the following groundswhich may be proved to the satisfaction of the Election Judge,namely:-
(c) that a corrupt practicewas committed in connection
with the electionby any agent of
the candidate;”
I declare the election of the 1st respondent as a Member of theKalawana seat to be void in law and that the 1st respondent was notduly elected to the said seat.
The 1st and 2nd respondents will pay taxed costs to the petitioner.
The petitioner will pay taxed costs to the 3rd respondent.
The Registrar will prepare the certificate required under section 81to the effect that this election is void and the certificate requiredunder section 82 that acts of corrupt practice as set out in thecharges have been proved to have been committed and that the 2ndrespondent committed these acts of corrupt practice.
Election declared void.