P. K. PREMASINGHE, Petitioner, and B. A. H. BANDARA, Respondent

031-NLR-NLR-V-69-P.-K.-PREMASINGHE-Petitioner-and-B.-A.-H.-BANDARA-Respondent.pdf


Premasinghe v. Bandara
165
I960Present: G. P. A. Silva, J.
P. K. PREMASINGHE, Petitioner, and B. A. H. BANDARA,RespondentElection Petition No. 5 of 1965—Electoral District No. 123 (Badulla)
Election petition—Allegation of making false statement about candidate—Allegation ofagency—Requirement of proof beyond reasonable doubt—Corrupt practice—Illegal practice—Ceylon (Parliamentary Elections) Order in Council, 1946(Cap. 381), as. 58, 72 (1) (2), 77, 82, 82 C (2) (b).
In an election petition, a charge of making a false statement of fact in relationto the personal character and conduct of a candidate must be proved beyondreasonable doubt. Such a charge is also a corrupt practice falling into the samecategory as bribery, treating, undue influence, etc., which are enumerated insection 58 of the Parliamentary Elections Order in Council and there is nojustification to make a distinction in the onus of proof in respect of thesedifferent corrupt practices.
Don Philip v. Ilangaratne (51 N. L. R. 561) not followed.
An allegation of agency too must be proved by the petitioner beyondreasonable doubt.
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G. P. A. SILVA, J.—Premaainghe v. Bandara
ElECTION Petition No. 5 of 1965—Electoral District No. 123(Badulla).
Izadeen Mohamed, with U. D. Tambiah, for the petitioner.
Jaya Pathirana, with Prins Gv.nase.kera, Hannan Ismail and StanleyTillekeratne, for the respondent.
Cur. adv. wit.
June 22, 1966. G. P. A. Suva, J.—
By his petition dated the 9th of April, 1965, Pihille KankanamgePremasinghe, a voter of the Badulla Electoral District, whom I shallhereafter refer to as the petitioner, has challenged the election of Bamunu-singhe Aratchige Heen Bandara who was returned as the duly electedMember of the said Electoral District and whom I shall refer to hereafteras the respondent. The election of the respondent was assailed on thefollowing three grounds :—
that the said respondent by himself, his agent or agents and/or
other persons acting on his behalf or with his knowledge and /orconsent was guilty of bribery before, during and after the saidelection ;
that the said respondent was by himself, his agent or agents
and/or'other persons acting on his behalf or with his knowledgeand/or consent guilty of undue influence before, during andafter the said election ;
that the said respondent by himself, his agent or agents and/or
other persons acting on his behalf or with his knowledgeand/or consent made and/or published before or during thesaid election false statements of fact in relation to the personalcharacter and/or conduct of H. M. Jinadasa, a candidate atthe said election, for the purpose of affecting the return of thesaid H. M. Jinadasa at the said election.
Counsel for the petitioner, at the commencement of the inquiry into thepetition, for certain reasons of convenience, wished to lead evidence ofthese charges with the order reversed, that is to say, making or publi-cation of false statements, undue influence and bribery, respectively,in that order and I permitted him to do so.
Mr. Pathirana, counsel for the respondent, who launched an attack onevery aspect of the petitioner’s case, succeeded in driving a wedge intoevery corner-stone of this case. So successfully did he attack the peti-tioner’s case in respect of the charges of bribery, undue influence andpart of the false evidence charges that the petitioner’s counsel was com-pelled to withdraw these charges at the end of the respondent’s case.Counsel for the petitioner, Mr. Mohamed, who realised the weakness of
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his case in respect of these charges at this stage acted very properlywhen he withdrew all the charges which he could not sustain instead ofpersisting in the original case with which he came to court and .by thiscourse of action he has considerably assisted this court.
One aspect of the withdrawal of these charges, however, is that itcarries with it a possible though not a necessary implication. Itsuggests :—
that the petitioner could not support the position taken up earlier
in regard to P 17 and P 18 which were alleged to be typed andsigned letters of the respondent;
that these documents were either diabolical forgeries or that they
were fabricated, for the purpose of misleading the electorate,on official House of Representatives notepapor which therespondent had left signed in blank for a different purpose, andwhich had reached the hands of Jinadasa or his agent byquestionable means;..
that the charge levelled against Jinadasa or his agents by the
respondent of forging his signature and making false documentscould not be refuted;
that the fairly large superstructure of oral evidence regarding the
charges of bribery and undue influence against the respondent'or his agents which was sought to be built on the foundationof P 17 was rejected by the petitioner himself;
that the candidate Jinadasa or someone on his behalf was prepared
not merely to fabricate such a document as P 17 but, by meansof such fabrication, to involve the respondent in a very seriouscharge not merely of bribery but of bribery of several publicservants, namely, the Grama Sevakas of the area, and theperversion of the whole, administrative machinery of theirrespective divisions. I may say that even if counsel for thepetitioner had not taken the step of withdrawing these charges,
I should have had no hesitation in rejecting the evidence onwhich those charges were founded. If there was admittedlysuch a volume of both oral and documentary evidence whichwas false or at least unreliable—for the oral evidence alone, ifreliable, could have established the charges of bribery and undueinfluence without any assistance from the document P 17—vhy then this court has to be even more cautious than in thenormal case in assessing the rest of the available evidence insupport of the only charge that is left for consideration.
Before I examine the evidence, it is necessary for me to considercertain questions of law regarding the burden of proof on which bothcounsel have addressed mo at length. In view of the very conflicting
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submissions made by counsel on either side on the burden of proof requiredof a petitioner in respect of a charge of making false statements I think Ishould deal with the question in some detail. Counsel for the respondentsubmitted that Nagalingam J. was in error when he held in the case ofDon Philip v. Ilangaratne 1 that, where the allegation is that the res-pondent or his agents are guilty of making false statements of fact, thefalsity of tjje statement is prima facie established when there is a denial onoath, and that it is for the party who asserts that a statement alleged tobe false is true to establish beyond reasonable doubt the truth of thatstatement. For the submission he made he relied on the decision ofSri Skanda Rajah J. in the Bentara-Elpitiya Election Petition case inwhich he examined and disagreed with the reasoning of Nagalingam J.in the earlier case. It would appear from the judgment of Nagalingam J.that he too agreed with the necessity of proof beyond reasonable doubtin respect of bribery or treating and that it was only in respect of falsestatements that he contemplated a different standard. Even here as wasconceded by the counsel for the petitioner, who naturally relied stronglyon the pronouncement of Nagalingam J., the fact of making the statementhad to be established beyond reasonable doubt. Once this fact wasestablished and there was a denial on oath that the statement was false,the view taken by Nagalingam J. was that the burden of proving thetruth of the impugned statement was shifted' to the respondent. Thisis a view with which I find it difficult to agree. In the first place, wherethe denial on oath by the candidate affected or anyone else on his behalfis not allowed by the respondent to remain unchallenged and wherethe assertion of falsity of the statement complained of is successfullyshaken in cross-examination, whether it be by a general impeachmentof the credit of the witness concerned or by the production of documentaryevidence in the course of such cross-examination which will contradictthe denial on oath, then there is no question of prima facie proof offalsity. Secondly, in view of what I state below regarding the degreeof proof necessary in my opinion to establish a charge contained in anelection petition, I am compelled, with respect, to disagree with thedictum of Nagalingam J. on this matter.
The contention of counsel for the respondent, in support of which hecited several cases, was that the burden of proof that a petitioner hasto discharge in respect of every element of an offence is the same as thatexpected of the" prosecution in a criminal case. This principle, so faras criminal law is concerned, is now fairly well settled and it is hardlynecessary to go into cases such as King v. Fernando2 cited by counselto show that the burden shifts to an accused person only after the prose-cut on has established its prima facie case beyond reasonable doubtand the accused has pleaded the benefit of a general exception. I shalltherefore confine my attention to a scrutiny of the important judgmentsin earlier election petition cases.
1 (1949) 51 N. L. R. 561.
(1947) 48 N. L. R. 249.
O. P. A. SILVA, J.,—Premaainghe v. Bcmdara159
In the case of Ilangaratne v. 0. E. de Silva1, Windham J. held to beproved only those charges in respect of which the evidence satisfied himbeyond reasonable doubt. After giving seven reasons for his conclusion,he went on to say at page 175: “On all these grounds I am convincedbeyond reasonable doubt, and I find as a fact, that the respondentdid at the Mapanawatura meeting on August 27, 1947, during the electioncampaign, make the above false statement of fact in relation to thepersonal character and conduct of the candidate Ilangaratne. Thatit was made for the purpose of affecting the latter’s return admits of noreasonable doubt, having regard to the circumstances in which it wasmade.” In respect of some of the other charges he held that the evidencedid not convince him or that it did not prove the charge positively andthat it did not raise more than a suspicion and he dismissed those charges.Concerning another charge of undue influence resulting from the threathe observed : " These considerations make it highly probable that thethreat (to see that a voter would be out of an estate if he did not workfor the respondent) was made. Nevertheless, viewing the conflictingevidence as a whole, I am not satisfied beyond a reasonable doubt as towhere the truth lay. In these circumstances I cannot hold the chargeto be proved. The same considerations apply in the case of the nextincident where the evidence consisted of the sole testimony of the witnessAugustine Peiris against the denial of the respondent. According to
Peiristhe respondent came into the Post Office and said to him
‘ I have authentic proof that your father is working against me. I havebeen responsible for giving you this Post Office. I shall see that it isshifted from here’. Again the words ring true to character. But inview of the paucity of evidence—one man’s word against another’s—Icannot say that the charge has been proved beyond reasonable doubt.And in such charges, a strong suspicion is not enough.”
In the case of Aluwihare v. Nanayakkara2, it was held by Basnayake J.that the standard of proof required of a petition at an election inquirymust be higher than required in a civil case and not lower thanthat required in the case of a criminal charge and, citing a number ofEnglish cases in support, added (at page 533) that in a wide range ofcases which are strictly not criminal the standard of proof is the sameas for a criminal case. He held further that where allegations of offencesstatutory or otherwise which carried with them severe penalties weremade in proceedings which were strictly not criminal, the trend of judi-cial decisions was to require proof beyond reasonable doubt in respectof such allegations.
In Chelvanayakam v. Naiesan 3, this view was confirmed by de Silva J.when he held that election offences must be strictly proved.
The English decisions appear to be even more emphatic in their insistenceon a standard of proof beyond reasonable doubt. In the Warringtoncase*, Baron Martin in giving judgment for the respondent stated:—“ I adhere to what Mr. Justice Willes said at Lichfield, that a Judge to
1 (1948) ■19 N. L. R. 169.» (1954) 56 N L. R. 271
* (194S) 50 N. L. It. 529.« 1 O'Mally & Hardcwstle 42 at 44.
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upset an election ought to be satisfied beyond all doubt that the electionwas void, and that the return of a member is a serious matter, and notto be lightly set aside.” In the Londenderry case1, with reference to acharge of bribery, Mr. Justice O’brien said :—“ The charge of bribery,whether by a candidate or his agent, is one which should be establishedby clear and satisfactory evidence. The consequences resulting fromsuch a charge being established are very serious. In the first place it
avoids the election, In the next place, the 43rd and 45th sections
of the Parliamentary Elections Act, 1868 impose further and severepenalties for the offence, whether committed by the candidate or byhis agent. Mere suspicion, therefore, will not be sufficient to establish acharge of bribery, and a judge, in discharging the duty imposed uponhim by the statute, acting in the double capacity of judge and juror,should not hold that charge established upon evidence which, in hisopinion, would not be sufficient to w’arrant a jury in finding the chargeproved.”
From all these decisions, barring that of Nagalingam J. with whichI have disagreed, it is reasonable to draw the following conclusions :—
that any charge laid against a successful candidate by a petitioner
in an election petition should be proved beyond reasonabledoubt before a court could satisfy itself of such charge ;
that suspicion however strong it may be does not amount to proof
of any charge ;
that even a high degree of probability is not sufficient to constitute
the proof required to establish a charge and ;
that a court should be slow to act on one witness’ word against
another’s even if the word of the person who supports a chargerings true when that constitutes the onlj' evidence of suchcharge.
Although these decisions furnish abundant authority to require froma petitioner proof beyond reasonable doubt in respect of his allegationsin the petition there is_another consideration, not so far dealt with inany of the cases cited by counsel, which strikes me as being decisive inthis matter. I base my conclusion on a study of the sections of theCeylon (Parliamentary Elections) Order in Council themselves. Quiteirrespective of the presentation of an election petition, section 58 ofthis Order makes a person guilty of a corrupt practice, among otherthings, if he—
(1) commits the offence of treating, undue influence or bribery, or1 1 O'Mally & Hardcastle 274 at 278.
G. P. A. SILVA, J.—Premasinghe v. Bandara
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(2) makes or publishes, before or during an election, for the purposeof affecting the return of any candidate, any false statementof fact in relation to the personal character or conduct of suchcandidate,
these offences being defined in the immediately preceding sections.Similarly, the sections that immediately follow section 58 make certainacts or omissions illegal practices. A person committing any of theseoffences before, during or after an election, as the case may be, is liableto be prosecuted with the sanction of the Attorney-General in terms ofsection 58 (3) and section 72 (2) respectively and, on conviction by a DistrictCourt, is punishable with imprisonment and/or a fine as prescribed bysections 58 (1) and 72 (1) respectively. In addition to a conviction andsentence by the District Court, sections 58 (2) and 72 (1) impose on aperson convicted of such an offence the incapacity of not being registeredas an elector and not being appointed as a Senator or a Member of Parlia-ment for a specified period from the date of conviction.
I shall now turn for a moment to the provisions regarding electionpetitions. Under section 77 of the Order-in-Council, an election can bedeclared void by an Election Court on proof of precisely the same (amongother) grounds as those in respect of which any person can be chargedand convicted in a criminal court. Section 82 requires an ElectionJudge, at the conclusion of a trial of an election petition, to make areport setting out whether any corrupt or illegal practice has or has notbeen proved to have been committed and section 82 C (2) (6) subjectsa person who has committed a corrupt or illegal practice to the sameincapacities as if at the date of the report of the Election Judge he hadbeen convicted of that practice. It would thus appear that a personcan be visited with the severe penalties of certain civic disabilities inrespect of the same act, namely, a corrupt or illegal practice in one oftwo ways, one by a prosecution in a court of law and the other by afinding of an Election Judge. If without an election petition being evenfiled a person who has committed a corrupt or illegal practice is prose-cuted before a criminal court, the standard of proof that will be requiredfor a conviction of such person will be the same as in any other criminalcharge, namely, proof beyond reasonable doubt. If the law should bethat the standard of proof for establishing charges on an election petitionis lower than that required in a criminal trial and that such charges canbe proved by a balance of probability, the resulting position will bethat the same grave consequences of losing certain civic rights can befallthe same person by being found guilty of the same charges by a pre-ponderance of probability in one court and by proof beyond reasonabledoubt in the other. It seems to me that there is an inherent fallacyin such a proposition and I will not subscribe to it. It would berevolting to one’s sense of justice if such a person’s guilt of a corrupt orillegal practice, which will be visited with the very same punishmentscan be established by means of an election petition with a different andlower standard of proof than by means of a trial before a criminal court..
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The only just course which commends itself to a court of law thereforeis to require the same standard of proof, whether the result is reachedvia a prosecution or via an election petition.
When I consider the question of making or publishing false statementsin the light of this view which I have formed, I find no difficulty in decidingthat an allegation of false statements against a respondent too like anyother charge must be proved beyond reasonable doubt. For, a chargeof making false statements is also a corrupt practice falling into thesame category as bribery, treating, undue influence, etc., which are enume-rated in section 58 of the Order and there is no justification to make adistinction in the onus of proof in respect of these different corruptpractices. This approach to the problem—and I hope I am not wrong inmy approach —fortifies me in the view I have already expressed in dis-senting from the judgment of Nagalingam J. in Don Philip v. Ilangaratne.
With this conclusion in the background let me consider the submissionmade by counsel for the petitioner that the standard of proof regardingagency is not as heavy as that required to establish substantive chargesof election offences. In this matter he relied on the judgment of SriSkanda Rajah J. in the Balangoda Election Petition case, in which herevised the previous view he took in the Bentara-Elpitiya ElectionPetition No. 26 of 1965 and held that though the other elements of acharge should be established by the petitioner beyond reasonable doubt,he need not do so in regard to agency. On this matter of agency headopted what was stated in the Worcester case1, to the effect that enoughevidence may have been given to put the onus of disproving it uponthe respondent. The reason given by Sri Skanda Rajah J. for adoptingthis view was that efforts were directed, more often than not, to concealagency, thereby rendering it very difficult for a petitioner to establishagency. While I am prepared to agree that agency must be given avery wide meaning in election law and not a restrictive meaning in thesense that agency may be proved by surrounding circumstances and notnecessarily by an express appointment, with all deference to my brother,
I am disinclined to relax the requirement as to the' degree of proof evenin the case of agency. For, agency is as much an essential element of theoffence as any other when the charge is that a candidate through hisagent committed an election offence. It will therefore be illogical,consistently with the view I have formed, for a court which insists on theproof of an election offence beyond reasonable doubt to be satisfied witha lower standard of proof in respect of one of the essential ingredients.If I may draw an analogy from atrial of a criminal offence, the vicariousliability sought to be established in an election case against a respondentto a petition through an agent is similar to such liability being broughthome to an accused in the footing of a common intention or throughan unlawful assembly or conspiracy charge with others. In any one ofthese cases the elements that would establish vicarious liability should1 (1892) Day's Election Cases 89.
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be proved beyond reasonable doubt in the same way as the other in-gredients that would establish the substantive offence with which theaccused are charged. I therefore hold that the allegation of agencytoo must be proved by a petitioner beyond reasonable doubt.
As I have indicated before, the fact of agency may be established bycircumstantial evidence and there is no requirement to prove an expressappointment. This view has often been taken by the English courtsand I see no reason to doubt the correctness of it. A court has, however,to be careful to satisfy itself that the adverse inferences drawn againsta respondent in the matter of agency are the only inferences which canreasonably be drawn from the circumstances proved, before it decidesthat a disputed person is an agent.
With these observations in the legal aspects that arise for decision,I shall now proceed to consider the evidence in respect of the only chargeof making and/or publishing the false statement contained in P 9.
[His Lordship then examined the evidence at length, and concluded :—]
For the reasons stated above, the only charge which was proceededwith by the petitioner fails and the petition is therefore dismissed. Iaccordingly hold that the respondent Br.munusinghe Aratchige HeenBandara, whose election as Member of Parliament for Badulla is com-plained of, was duly elected. Since only two of the three substantialcharges were seriously pursued till the conclusion of the evidence, theevidence of bribery offered by the petitioner being negligible, I order thepetitioner to pay two-third of the taxed costs to the respondent.
In conclusion, I wish to thank all the counsel who appeared at thisinquiry for their valuable assistance. Mr. Mohamed acted very honour-ably in the best traditions of the Bar when he withdrew the chargeswhich he did not feel justified in proceeding with on the evidence andfacilitated the task of this court. Mr. Pathirana conducted the casewith restraint and commendable thoroughness and acted with a highsense of propriety in dealing with the witnesses for the petitioner and theunsuccessful candidate Jinadasa. For all these qualities which bothcounsel displayed and for the willing co-operation extended to me in thecourse of this prolonged inquiry, I am in their debt. I also take thisopportunity of expressing my gratitude to the staff of the court and tothe Bandarawela Police for the efficient manner in which all the necessaryarrangements were made for the convenience of the court during thisinquiry.
Election petition dismissed.