061-NLR-NLR-V-49-PELPOLA-Petitioner-and-R.-S.-.S-GUNAWARDENA-Respondent.pdf
WINDHAM J.—Pelpola v. Gunawardena.
207
1948Present : Windham J.
PELPOLA.. Petitioner, and R. S. S. GUNAWARDENA,
Respondent.I
In the Matter of the Election for the GampolaElectoral District.
Election Petition No. 11 of 1947.
Election Petition—General intimidation—Threats oj violence—Local acts—Resultaffected—Parliamentary Elections Order in Council, 1946, section 77 (a).
To establish a charge of general intimidation it is only necessary for thepetitioner to show that, having regard to the majority obtained, and thestrength of the polling, the result may reasonably be supposed to have beenaffected.
E LECTION petition, Ganrpola Electoral District.
E. F. N. Gratiaen, K.C., with C. S. Barr Kumarakulasingham, B. H.Aluwihare and A. 1. Rajasin-gham, for the petitioner. V.
V. A. Jayasundera, with Stanley de Zoysa, S. P. C. Fernando,
Samarawickreme, S. E. J. Fernando and D. Wimalaratne, for therespondent.
Cur. adv. wit.
March 12, 1948. Windham J.—
This petition is presented against the return of the respondent, theHonourable Mr. Ratnakirti Senarat Serasinghe Gunawardena as Memberfor the Gampola Electoral District, at an election held on September
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WINDHAM J.—Pelpola v. Ounawardena.
18, 1947. The election was a straight fight between the respondentand the petitioner, Mr. Richard Stanley Pelpola, and resulted in victoryfor the respondent by the comparatively nanow margin of 387 votes.The respondent bears office in the House of Representatives as Ministerwithout Portfolio, and Chief Government Whip.
The grounds for avoiding the election, as set out in the petition, aretwo. The first ground is general intimidation, the particulax-s beingthat on polling day, at a number of places in the electorate, but mainlyat a place called Uduwella, certain groups of persons intimidated othergroups from going to the polling station, by use and threats of force,with the result that the majority of electors were or may have beenprevented from electing the candidate whom they preferred. The secondground is based on the same incidents as form the subject-matter of thefirst ground, but considered as acts of undue influence committed againstindividuals by other individuals alleged to be agents of the respondent.
The following evidence in support of the charge of general intimida-tion was led by Mr. Gratiaen for the petitioner. First, the officerwho was in charge of the Uduwella polling station produced his officialreturn for that station, showing that of the 1,427 registered voters forthis polling station, only 541 voted. It also showed that of these 541voters, only 147 recorded their votes during the six-hour period from10 a.m. until 4 p.m., whereas 168 of them recorded their votes during thefinal hour from 4 p.m. to 5 p.m. This evidence is strongly corroborativeof that which followed, namely, the evidence of S. Paramanathan, who wasPresident of the Ceylon Indian Congress Labour Union Committee ofMossville estate.
This witness states that on the morning of polling day, September 18,he went with a number of Indian labourers to vote at the Uduwellapolling station. At a point on the road near a bakery, which they hadto pass in order to reach the polling station, they were stopped by a partyof about 30 Sinhalese villagers, who asked them where they were going.On being told that they were going to vote, these villagers said thatTamils had no votes there, and one of them, who carried a club, added—“ If you dare to vote, our master has instructed us to assault you ”.One of the villagers then pushed one of the Indian labourers. In brief,the labourers were unable to pass and to reach the polling station forfear of further assaults, and they were obliged to return to their estate.This witness, Paramanathan, then sent a telegram to the DistrictPresident of his committee complaining of the obstruction, the resultof which was that in due course the police arrived at about 4.30 P.m.There had been no police in this area until then, owing to its being stillbadly affected and isolated by the recent floods, from which Gampolahad suffered perhaps more severely than any other locality in Ceylon.Upon the arrival of the police, some 300 of the Mossville estate labourersfelt brave enough to accompany them to the polling station. On theway there, the police invited labourers from the neighbouring Craigheadestate to accompany them also to the station. Some of these latteraccepted the invitation, but others refused through fear. The witnesssaw villagers at the bakery throwing stones and preventing labourersfrom proceeding to the polling station. Some of them returned to their
WINDHAM J.—Pelpola v. Gunairardena.
209
estates through fear. Eventually, only 150 labourers went the wholeway to the polling station, the remainder turning back through fearin spite of their police escort. And of these 150, only 50 were able toregister their votes before 5 p.m., when the polling station closed.
None of this evidence was challenged by Mr. Jayasundera for therespondent, and I accept it in its entirety. There was also producedon behalf of the petitioner the official police report of the Police InspectorCorea, upon the above incidents, which entirely bears out the evidenceof the witness Paramanathan. Upon the latter leaving the witnessbox, Mr. Jayasundera stated that he had been instructed by his client,the respondent not to contest the issue of general intimidation. Therespondent took this decision after having received into his possessionfor the first time, only the night before, a number of police reports whichconvinced him that it would not be right for him to contest the charge.At the same time the repondent stated, through his counsel, that heentirely dissociated himself from the acts of these intimidators, aboutwhom he knew nothing, and none of whom were his agents. He wasdeeply grieved that there had been a denial of the free exercise of thevote in his constituency, and he wished to retain no benefit which mighthave been a result of it. Mr. Gratiaen thereupon stated that he proposedto offer no further evidence on the charge of general intimidation, andnone at all on the charges of undue influence.
The decision which the respondent has arrived at redounds to hiscredit, and does honour to the highest principles of legal integrity andparliamentary democracy. It is to be hoped that the course which hehas adopted will put to shame those ill advised and politically immaturepersons who committed the acts of intimidation, which have defeatedtheir own ends. Before, however, finding in favour of the petitioneron the charge of general intimidation, it is necessary, notwithstandingthe course taken by the respondent, to examine whether the chargehas been made out on the evidence and in law, since no election can bedeclared void by mere consent of the parties to a petition, the wholeelectorate being the persons really concerned.
In the present case, there can be no doubt to my mind that the peti-tioner, upon the uncontradicted evidence led by him, has establishedhis case under section 77 (a) of the Ceylon (Parliamentary Elections)Order in Council, 1946, namely that by reason of general intimidationthe majority of electors were or may have been prevented from electingthe candidate whom they preferred. The respondent, it will be recalled,was elected by a majority of only 387 votes. Counsel for the petitionerhas stated in his opening address, and his statement is not challengedby the respondent, that of the 32,734 voters in the whole electorate,some 8,375 (over one quarter) were Indian estate labourers, against whom,as a body, the acts of intimidation in the electorate were clearly directedby certain misguided Sinhalese persons. The witness Paramanathanstated that the Indian Congress Committee of his estate, at least, haddecided to support the petitioner in the election, and that all the labourershad decided to vote for him. It is not unreasonable to suppose thatthe Indian labourers on the neighbouring estates (including those ofCraighead, who were proved to have been similarly molested), had
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Fernando v. David.
likewise decided to votfe for the petitioner, bearing in mind that, as yet,the tendency in Ceylon is to vote according to communal or other allegiancerather than to individual conscience. Only 541 out of 1,427 voters recordedtheir votes at the Uduwella polling station,—an unusually low proportion,and-clearly attributable to the acts of intimidation, as is shown by thefact that more persons voted between the hours of 4 and 5 P.M. (whenthe police arrived and escorted labourers to the polls) than during thesix hours from 10 a.m. to 4 P.M., when the intimidators had a free hand.Had 400 more persons voted, and cast their votes for the petitioner,the latter would have won the election. These facts are amply sufficientto support a finding of genera1 intimidation under section 77 (a) of theOrder in Council. To establish such a charge, where the general inti-midation consists, as here, of local acts or threats of violence, it is onlynecessary for the petitioner to show that, having regard to the majorityobtained, and the strength of the polling, the result may reasonably besupposed to have been affected. On the figures and in the circumstancesdisclosed in the present case, it is at the very least reasonable to supposethat the result of the election may have been affected by the acts ofintimidation against the Indian estate labourers.
The petitioner accordingly succeeds in his charge of general intimida-tion under section 77 (a) of the Ceylon (Parliamentary Elections) Orderin Council, 1946, with the result that the election, in September, 1947,of the respondent as member for the Gampola Electoral District, isdeclared void. No evidence was led in support of the second charge,namely, acts of undue influence by agents of the respondent, and thischarge is accordingly struck out. The respondent -will therefore not besubject to any of the incapacities set out in section 58 (2) of the Order inCouncil. By consent of both parties I fix the costs payable by therespondent to the petitioner at the sum of Rs. 2,000.
Election declared, void.