WINDHAM J.—Per era v. Jayewardene.
1948Present: Windham J.
PERERA, Petitioner, and J. R. JAYEWARDENE,Respondent.
In the Matter oe the Election for the Kelaniya Electoral
Election Petition No. 18 of 1947.
Election petition—Corrupt practice—Printing and publishing—Names and addresses onpamphlets—Corrupt intention—Act of agent—Intention to betray candidate—Parliamentary Elections Order in Council, 1946—Section 58 II) (c).
A candidate is not responsible for the acts of an agent who does a corruptact with a view to betray him.
Where the printer and publisher of a pamphlet are the same person thereshould be something on the pamphlet to indicate it. Otherwise the printerand publisher would be guilty of a failure to comply with section 58 (1) (c) ofthe Parliamentary Elections Order in Council, 1946.
Where a statute does not unequivocally provide that a corrupt mind is notan essential ingredient of an offence, an act cannot be held to be a corruptpractice unless done with a corrupt mind. A corrupt intention is thereforean essential ingredient of the offences enumerated in section 58.
_1_ HIS was an election petition presented against the return of therespondent as member for the Kelaniya Electoral District at anelection held on September 18, 1947.
The grounds alleged for avoiding the election were—(1) that duringthe election campaign the respondent and his agents made and publishedfalse statements of fact concerning the opposing candidate, in electionspeeches and by the distribution of certain pamphlets.; (2) that certainpamphlets were caused to be printed, published and distributed whichdid not bear upon them the names and addresses of their printers andpublishers ; (3) undue influence by the respondent’s agents by inflictionor threats of injury.
Nihal Gunasekera and E. G. Wikramanayake, with B. H. Aluwihareand S. E. J. Fernando, for the petitioner.
E. F. N. Gratiaen, K.G., with D. S. Jayawickreme, C. S. BarrKumarakulasingham, C. C. Rasa Ratnam, H. W. Jayawardene and
T. Samarawickreme, for the respondent.
Cur. adv. vult.
March 19, 1948. Windham J.—
This is a petition to declare void the return of the respondent, theHonourable Mr. Junius Richard Jayewardene, as member for the KelaniyaElectoral District, at an election held on September 18, 1947. Therespondent, who is now Minister of Finance, was returned in a straightfight by a majority of 7,040 votes over his opponent, Mr. BodhipalaWaidyasekera. The petitioner was a voter in the electorate, and a.supporter of Mr. Waidyasekera.
WINDHAM J.—Per era v. Jayewardene.
The grounds for avoiding the election are three. First, it is allegedthat during the election campaign the respondent and his agents madeand published false statements of fact concerning the opposing candidate,in election speeches and by the distribution of certain pamphlets. Secondly,it is alleged that they caused to be printed, published and distributedcertain pamphlets (including those already referred to) which did notbear upon them the names and addresses of their printers and publishers.Thirdly, there are charges of undue influence by the respondent’s agentsby infliction or threats of injury.
The false statements of fact concerning the opposing candidate arecontained in three pamphlets, said to have been distributed in the con-stituency during the election campaign, and produced as exhibits PI,P3 and P4. The statements are the following—(I set them out as theyappear in the particulars) :—“ That Bodhipala Waidyasekera was (a)imprisoned for six months for stabbing 2 women ;(k) dismissed by
Wijeyewardenes from “ Lake House ” for theft and rowdyism ; (c)was driven away from Kiriella for an indecent assault on a woman ; (d)was a Police Spy when N. M. Perera and Colvin R. de Silva were evadingarrest; (e) for harassing 2 women was expelled from the Sama SamajParty ; and (/) bound over for stabbing 2 Sinhalese women ”. Thepamphlets PI, P3, and P4 do in fact contain respectively the followingof the false statements above set out. PI, a far shorter pamphlet thanthe other two, contains statement “ (e) ”, and a statement which is acombination of “ (a) ” and “ (e) ” namely, that Bodhipala Waidyasekerahad undergone six months imprisonment for harassing two Sinhalesewomen. P3 contains statements “ (a) ”, “ (6) ”, “ (c) ” and “ (d) P4contains statements (k) ”, “ (c) ”, “ (d) ” and “ (/) ”. With the exceptionof the statement “ (d) ”, it has not been suggested for the respondentthat any of the above allegations are other than false ; and that theywere published for the purpose of affecting the return of the candidateattacked would be presumed from the circumstances of their publicationduring the election campaign. Each of the three pamphlets, therefore,contains at least one false statement published for that purpose. Itremains, however, to see whether they have been proved to have beenpublished on any of the occasions alleged in the particulars, and if so,whether the publication was by any agent of the respondent, or withhis knowledge or consent. It is not alleged that any of the false state-ments were uttered, or that the pamphlets containing them weredistributed, by the respondent personally.
Before considering the evidence called for the petitioner in proofof the various occasions on which these false statements are alleged tohave been published, I will examine the defence of the respondent withregard to how the pamphlets PI, P3 and P4 came into existence. Ofthe origin of PI he states that he has no knowledge at all. With regardto P3 and P4 his evidence is as follows. The respondent denies that hehad any knowledge of them before the election results were declared.Two days after that, namely, on September 20, he states that he met aman whom he had first got to know some years before, one B. M. Coorayfrom Colombo, who told him “ I have done what I could for you, and Iam very glad you have been returned ”. On the election petition being
WEXDHA3I J.—Perera v. Jayewardene.
subsequently filed, the respondent came to know of the existence of thepamphlet P4, the offending article in which bore the signature “ B. M.Coo ray He remembered his old acquaintance of that name, and sentfor him. Cooray then told the respondent that he, Cooray, had got P3and P4 published entirely on his own initiative, since he hated the SamaSamaj party and wished to do what ho could to prevent Bodhipala.Waidyasekera, the Sama Samaj candidate, from getting in. B. M.Cooray, a resident of Colombo, has himself given evidence in corroborationof this, and he tells us that P3 and P4 originated in the following manner.On September 10, he read in the newspaper “ Jatika Nidahasa ” of thatdate (which was produced in evidence) an article strongly deploringthe coming forward of Mr. Bodhipala Waidyasekera to contest theKclaniya seat and making derogatory allegation against him. Coorayhad this article reprinted in the form of a pamphlet by the SwastikaPress (the publishers of the newspaper), with the addition of a politicalcartoon from a weekly magazine published by the same press in 1939.He ordered 3,000 copies. His order was dated September 12. Thecopies wero duly printed, as the pamphlet P3. He then had an almostidentical pamphlet (without the cartoon) printed by the Sadu press,sending his order for the latter (which was produced in evidence) onSeptember 15. The order was again for 3,000 copies, and these weredelivered to him in three instalments, on September 16, 17 and 18 (theday of the election). He went round the Kelaniya electorate on thosethree days, in a motor van, distributing copies of P3 and P4 to theelectors, at the same time telling them to vote for the respondent. Allthis he did on his own initiative, and not at the instance or on the ins-tructions of the respondent, whom he did not even meet during thecampaign.
The above evidence was further corroborated by the manager of theSadu press, and by the production of relevant receipts, manuscript andprinter’s proof of P4. Upon considering all this evidence I find no reasonto disbelieve it, and I accept it as true. All three witnesses were un-shaken in cross-examination. I am satisfied that Cooray possessed themeans to enable him to spend the Rs. 1,000 which he states that hespent in publishing not only these two “pamphlets' against the SamaSamaj candidate in the Kelaniya electorate, but also (as he states)other election literature directed against the Sama Samajists in otherconstituencies. Two important facts emerge. First, “that the pamphletsP3 and P4 were not printed or published by the respondent, or withhis knowledge or consent, or by his agent; whether they were distributedby any of his agents will be considered later. Secondly, P3 could nothave been distributed by anybody before September 13, nor P4 beforeSeptember 16.
I would say at this stage that the respondent impressed me as a truthtelling witness throughout his evidence, and as one who endevoured duringhis campaign to keep it free from the dissemination of all false statementsconcerning his opponent. On this point he was corroborated by thewitness Wijekoon, his admitted agent but one whom I considered tobe reliable. Counsel for the petitioner has sought to discredit the res-pondent on two grounds. First, he was cross-examined with a view-
WINDHAM J.—Perera v. Jayawardene.
to showing that the election expenses allowed to him by law had beenexceeded. This, however, was not one of the charges against him, andalthough he did admit under cross-examination that a wealthy agentof his had probably expended money on his behalf which would bringthe total expenditure to a sum somewhat exceeding the maximum allowedto him under section 62 of the Ceylon (Parliamentaiy Elections) Orderin Council, 1946, I am satisfied that he did not deliberately falsify hiselection returns, and his frankness under cross-examination on this subjectrevealed him rather as a truth telling witness than as one who would,by reason of any laxness on his part in keeping a check on the electionexpenditure of his agents, be likely to tell lies in his evidence concerningthe charges which the petitioner did frame against him. Secondly, headmitted to having, after taking the advice of his counsel, made use ofcertain confidential communications in the personal file of one of the mainwitnesses for the petitioner, one H. J. Poiris, which had come into hispossession in his capacity as Minister of Finance, in order to check up onthe record of that witness with a view to discrediting him should it proveunsatisfactory. Whether this was a proper thing to do is irrelevantsave in so far as it may touch on the respondent’s credibility. Andagain I do not consider that it reflects adversely on his credibility as awitness. That the respondent should not scruple to go to such a lengthin order to discover whether one of the chief witnesses called to unseathim was a liar (or, as he put it, “ in the interests of justice ”) is noindication that he himself was a liar or likely to be one ; it is consistentrather with his being a seeker after the truth.
I turn, then, to the particular occasions on which it is alleged thatfalse statements concerning his opponent were published with theknowledge or consent of the respondent or by his agents. The firstoccasion was at a meeting held at Gonawela on September 6, which therespondent admittedly attended. No evidence was adduced that anylibellous pamphlet was distributed at this meeting ; but two witnesseswho attended the meeting were called to testify that one HemachandraJayawardene (no relation of the respondent), who admittedly made aspeech at it, uttered some of the libellous statements against BodhipalaWaidyasekera of which particulars have been given. These witnesseswere W. P. W. Siriwardene and A. E. H. Perera. Siriwardene statedthat Hemachandra Jayawardene in his speech said that Waidyasekerahad molested two women and was sent to jail, that he had been sentaway from Kiriella for molesting a woman, and that he had been drivenaway from Lake House for thieving. Perera, who only attended themeeting for five minutes, said of Hemachandra’s speech that in it hestated that “ the other contestant in the field had been bound over.He also said something about his connection with women. He saidthat a woman had cut the opponent of Mr. Jayawardene with a knife ”.
Such was the evidence called for the petitioner. Both the respondentand Hemachandra Jayawardene denied in evidence that the latterhad uttered the false statements alleged. So too did the witnessWijekoon who, as I have already stated in another connection, impressedme as a trustworthy witness. I prefer to accept their evidence. CertainlySiriwardene did not impress me so favourably that I can accept
WINDHAM J.—Peraa v. Jayewardenc.
his testimony beyond a reasonable doubt. In the box, while statingthe contents of Hemachandra’s speech, he gave his evidence as if recitinga passage which he had learnt by heart, which was not at all convincing.Moreover, with regard to the actual libels said to have been uttered byHemachandra, he was by no means corroborated by A. E. H. Perera,as will be seen from the relevant passages in their evidence to whichI have referred. Again, the particulars with regard to what false state-ments were uttered at this meeting do not include an allegation thatWaidyasekera was bound over for six months, but that he was imprisonedfor six months. Perera said that Hemachandra had stated that Waidya-sekera was bound over for six months. This discrepancy may at firstsight seem to be a small one ; but it is interesting to note that thepamphlet P3 speaks of imprisonment for six months, while in P4, thewitness B. M. Cooray tells us (and I believe him), that he had those wordsaltered to “ bound over ”, because between the printing of P3 and P4he had satisfied himself that Waidyasekera had not been imprisonedbut bound over. Neither P3 nor P4, it will be recalled, was yet in exis-tence on September 0, the date of the Gonawela meeting, and one isleft with more than a suspicion that the contents of P3 and/or P4 wereput into the mouth of Hemachandra Jayawardene by these witnesses,who had since read them, in order to bring them home to the respondent,who attended that meeting, and whose agent Hemachandra was allegedto be. For all these reasons I cannot treat the evidence of Siriwardeneand A. E. H- Perera as reliable.
But there is another reason why I reject it, namely, that I acceptthe evidence of the respondent and Hemachandra Jayawardene as towhat the latter did say about Waidyasekera at that meeting, and howhe came to say it. Their evidence, in brief, is as follows. They statethat they first met each other at a funeral on September 1, 1947 . Beforethis, Hemachandra had read in Waidyasekers’ election manifesto(Exibit D7) claims by the latter to have been a friend of his(Hemachandra’s) late father, Jayaramdas Jayawardene, who had himselfbeen a friend of the late Mahatma Gandhi and had started an Ashramat Wellampitiya. Hemachandra had a very poor opinion of Waidya-sekera, and wished to refute that suggestion that he had been a friend ofhis father’s, and also to point out to the electors certain things whichhe knew to his discredit. This he accordingly did in a pamphlet whichhe printed at his own press on August 29, 1947. On September 1, whenhe first met the respondent, he showed him this pamphlet (producedas exhibit ‘ X ’), and asked if he might repeat from the platform atmeetings held on his (the respondent’s) behalf, the statements concerningWaidyasekera which were contained in the pamphlet ‘ X ’. Therespondent, after satisfying himself that these statements, thoughderogatory, were not false ones, allowed him to do so. Hemachandraaccordingly did so, both at the Gonawela meeting which we are nowconsidering, and also at a meeting held on the following day, September 7,at Enderamulla. None ofthe statements againstWaidyasekera containedin the pamphlet ‘ X however, which statements Hemachandra re-iterated in his speeches at those two meetings, were statements parti-culars of which are set out in the petition as being the false statements
WINDHAM J.—Perera v. Jaycwardene.
uttered by him at those meetings. Both the respondent and Hema-chandra deny that the latter made any of the statements so set out.
I accept their denial.
The charge relating to the Gonawela meeting accordingly fails. Before,however, passing on to consider the similar false statements said to havebeen uttered and published at the Enderamulla meeting, I will first dealbriefly with the evidence adduced to show that Hamachandra was an agentof the respondent throughout his campaign. Both of them deny this,save to the limited extent to which I have already referred. The peti-tioner’s witnesses, H. J. Pieris and T. Wilfred Perera, whose evidenceI will consider further at a later stage, testified that they had seen therespondent and Hemachandra Jayawardene travelling’ together on anumber of occasions during and before the campaign, in the respondent’sstation wagon. I reject this evidence as worthless. The respondentproved conclusively that he only bought the station wagon in July, 1947,whereas Pieris stated that he had seen the two together in it some sixmonths before nomination day, which was in August.
There was also evidence that at a meeting of Bodhipala Waidyasekeraheld at Sapugaskande on September 7, at 10.30 a.m., HemachandraJayawardene, accompanied by one or two supporters of the respondent,drove up in a car and distributed a pamphlet signed by himself. Nocharge was framed in respect of this incident, but the evidence was ledto show the likelihood that Hemachandra Jayawardene was the respon-dent’s agent. The petitioner’s witnesses to the incident were T. WilfredPerera, H. J. Pieris and P. S. Perera, corroborated to some extentby Waidyasekera himself and R. C. Perera. They state that it occurredduring the course of a speech by Waidyasekera, and that some of thepeople immediately moved towards the car to receive the pamphlets.None of these witnesses impressed me very favourably. Hemachandradenied the incident and was not cross-examined on his denial. AndPolice Sergeant Wijendra, who was present at the meeting, and whoseimpartiality I have no reason to doubt, stated that he -would have noticedsuch an incident had it occurred, that the he does not think it occurred,and that there was certainly no interruption during Waidyasekera’sspeech. In view of this conflicting evidence I cannot hold the distributionby Hemachandra to have been proved, and accordingly no furtherevidence of the latter’s being the respondent’s agent is afforded. Iaccept, as I have said, the evidence of the respondent and Hemachandrathemselves regarding the relationship between them.
I turn now to the charge that, at an election meeting held a Endera-' mulla on September 7, which the respondent admittedly attended,Hemachandra Jayawardene in his speech made the same false statementsagainst Waidyasekera as he was alleged to have made at the Gonawelameeting on the previous day, and that he also distributed at the meetingthe pamphlet P4. The petitioner’s witnesses to this incident were
M. Weerasinghe and H. D. Albert. Here again the witnesses didnot carry conviction. Weerasinghe was a tired and feeble old man whosememory appeared weak. His testimony that P4 was distributed atthis meeting on September 7 can in any event not be accepted, in viewof my earlier finding thatP4 only came into existence on September 16.
WINDHAM J.—Perera v. Jayewardene.
This taints the whole of his evidence ; particularly, since he admittedin cross-examination—“ I cannot be quite definite whether the statementthat he had stabbed two women and was sentenced to six monthsimprisonment was contained in Mr. (Hemaehandra) Jayawardene’sspeech or in the pamphlet ”. Albert said nothing about the distributionof P4, but spoke only to the false statements uttered by HemaehandraJayawardene. His evidence was also unsatisfactory, and it conflictedmaterially with that of Weerasinghe with regard to the circumstancesin which each of them had made a statement to the petitioner’s proctorin February, 1948. Against the evidence of these two, there stand thedenials of the respondent and Hemaehandra Jayawardene ; and theirversion of what took place at the Gonawela meeting on the previous day,which I have already considered and accepted, applies equally to thisEnderamulla meeting. I accept their evidence. The charge in respectof this meeting accordingly likewise fails.
The remaining incidents testified to in support of the charge of pub-lishing false statements concern the distribution of the pamphlets PI,P3 or P4 by persons alleged to be the agents of the respondent. Takingthem chronologically, the next incident is the alleged distribution atKadawatta, at about 4.30 p.m., on September 16, of the pamphlets P3and P4 by one Muhandiram Ratnasekere. The respondent has admittedthat Ratnasekere was his agent, and accordingly if it can be shownbeyond a reasonable doubt that he distributed those pamphlets, thecharge must succeed. The petitioner’s main witness to this incidentwas D. W. Jayasuriya. He states that supporters of the respondentcame to this meeting at Kadawatta in a procession, with elephants anlorries. Upon considering all the evidence with regard to this incidentI have no hesitation in concluding that such a procession did come tothe meeting. The witness also states that in the procession was adecorated lorry belonging to Muhandiram Ratnasekere. I accept hisevidence on that point also. Thus far he is corroborated by the witnessGirigoris. He further states that almost immediately before the res-pondent (who was not in the procession) arrived at the “ Friday Fair ”where the meeting was held, Ratnasekere came up to the lorry and dis-tributed the pamphlets P3 and P4, while the lorry was by-the side ofthe road opposite the Fair. This vital piece of evidence was not corro-borated by any other witness. At the same time, it was not denied.For the witnesses called for the respondent, including two Police Officers'and the respondent himself, only arrived on the scene after the allegeddistribution by Ratnasekere, that is to say, they only arrived in time forthe meeting, and could do no more than testify that no pamphlets weredistributed after their arrival. I have accordingly had to consider theuncorroborated but un contradicted evidence of Jayasuriya very carefully.The distribution of P3 and P4 by Ratnasekere on the afternoon ofSeptember 16, was not an impossibility, since both pamphlets were,as I have already found, being distributed by B. M. Cooray himselfon that day. At the same time the very fact that Cooray himself waspersonally and independently distributing these pamphlets throughoutthe electorate on that day makes it less likely that Ratnasekere (whohad no connection with Cooray) was also doing so ; there is nothing to
WINDHAM J.—Perera v. Jayawardene.
indicate how Ratnasekere could have got hold of the pamphlets in sucha case. A doubt at least is raised. Secondly, there was somethingsuspicious in the circumstances in which Jayasuriya stated in cross-examination that he had come to hand over to the petitioner (who wasthen collecting evidence) the copies of P3 and P4 which he says he hadpreserved in a drawer. Jayasuriya stated that while some 8 to 10 electionpamphlets came into his hands in connection with the Kelaniya election,he preserved only these two. He does not say why. He says thepetitioner, after asking him to give evidence about this Kadawattameeting, “ first showed me the two pamphlets (P3 and P4) and askedme whether I had seen or received pamphlets of that sort. It was thenthat I noticed the two pamphlets ”. There is, as I say, something alittle suspicious about the two pamphlets concerning which the petitionerquestioned him turning out, so luckily, to be (as he says) the only twopamphlets which he had preserved, out of the 8 to 10 which had comeinto his hands. I have not omitted to take into consideration the factthat the respondent did not call Ratnasekere himself to deny the alle-gation against him, and his non-calling is a factor which goes to corros-borate Jayasuriya’s story. At the same time, it is significant that,save in the early stages of the trial and then in connection with a particularapplication only, the petitioner himself did not elect to give evidencein this case, which might have enabled further light to be thrown on themanner in which Jayasuriya’s evidence (and indeed that of various otherwitnesses to other charges in this case) came to be given. In all thecircumstances I am unable to say that I am left with no reasonabledoubt regarding the truth of Jayasuriya’s evidence that Ratnasekeredistributed the pamphlets P3 and P4. That being so, I cannot hold thecharge to be proved with that degree of certainty that the law requires.The charge accordingly fails.
The next allegation that a libellous pamphlet was distributed is thatone T. William Perera, said to be an agent of the respondent, distributedthe pamphlet PI to voters at Makola on September 16 or 17. Theonly witness who testified to the distribution was H. J. Pieris ; the witnessT. Wilfred Perera, brother of the T. William Perera against whom theallegation is made, corroborated him not with regard to the distributionbut with regard to his brother’s being an agent of the respondent. Ifound both these witnesses entirely unreliable, and the former grosslyprejudiced in addition, I have already rejected their evidence withregard to other incidents. I reject it likewise as worthless with regardto T. William Perera’s having distributed PI and having been the res-pondent’s agent. The respondent denies that the latter was his agent,or that he even knew him. I accept his denial.
I pass next to an allegation that on the morning of September 17,at Dalugangoda, copies of the pamphlet P 1 were thrown out of a car topersons who picked them up, by one M. D. J. Jayawardene, allegedto ^e an agent (though no relation) of the respondent. The witnessto this incident was one R. C. Perera, to whose evidence in anotherconnection I have already made a passing reference. His evidence ofthe incident is uncorroborated, for the evidence of two other witnesses,
WINDHAM J.—Perera v. Jayewardene.
K. H. Perera and J. R. Jayamanne, showed no more than that M. D.
J.Jayawardene was a supporter of the respondent. It is a little difficultto accept beyond a reasonable doubt the evidence of a witness whostates, as R. C. Perera did, that he kept his copy of PI, a paper measuringonly six inches by four, in case he should require it to wrap up articles inhis boutique, and that he was in the habit of using papers of even halfthat size for this purpose. That is not the kind of uncorroboratedevidence upon which a Court is justified in unseating a member uponan election petition, even if it were proved that M. D. J. Jayawardenewas a general agent of the respondent, which the latter denies, althoughhe admits that he transported voters to the poll on his behalf. Counselfor the petitioner stated in his closing address that he did not press thisparticular charge strongly. And indeed there is another fact which isfatal to it, namely, that (owing, I am quite prepared to accept, to anhonest error) the electoral number given in the particulars as that ofM. D. J. Jayawardene was not the number of the M. D. J. Jayawardeneconcerning whome the evidence was tendered, but was shown, by areliable witness called for the petitioner himself, to be that of anotherM. D. J. Jayawardene, who in fact died some three or four weeksbefore the alleged incident. There was accordingly no evidence insupport of the charge as framed.
The last incident in which there was a publication of false statementsagainst the opposing candidate was one fully testified to by a reliablepolice witness, Inspector Liyanage. At 4 F.M., on polling day, closeto the polling station at Wedamulla, when nearly all voters had alreadycast their votes, a car drove past the station distributing pamphlets. Ins-pector Liyanage was at the station, with two other constables in uniform,but he did not see the car until it had passed, when his attention wasdrawn to it by a bystander. Its occupants, the Inspector states, musthave seen him as they went past. It was already 25 yards past him whenhis attention was drawn to it, an it could easily have got away. Some-body in the car then threw pamphlets out of it. And although he didnot try to stop it, or blow his whistle, it stopped. It had ceased distri-buting the pamphlets when he came up to it. There were five occupants.The driver, who gave his name as H. J. F. Fonseka, was subsequentlyprosecuted for and pleaded guilty to the offence of distributingthe pamphlets from a moving car. The pamphlets were copies of PI.
The circumstances of this incident—in particular the throwing outof the offending pamphlets in full view of three uniformed policemenand the stopping of the car although it was not challenged—by them-selves raise more than a suspicion that Fonseka was deliberately askingto be apprehended by the police for distributing from a moving car. Butthey do not stand alone. Another police witness, Deputy Inspector-General Pippet, gave evidence to the effect that on that same afternoon,about half an horn: before the Wedamulla incident, a car had distributedcopies of PI on the road a few miles from Wedamulla, had thrown outcopies of PI while passing him and a constable' on the road, and hadreturned again in about half an hour’s time and been stopped by him.Although Deputy Inspector-General Pippet was not able to say in thewitness box whether this was the same car as was concerned in the
22 – N.L.R. Vol – xlix
WINDHAM J.—Pmra v. Jayewardene.
Wedamulla incident, I think the circumstances indicate that it probablywas. And this evidence goes to strengthen the suspicion concerningthe Wedamulla incident, namely, that it was a put up job, and that theman Fonseka was doing his best to ensure that he should be arrested bythe police, thereby furnishing incontrovertible evidence, for use againstthe respondent in the event of an election petition, that he was distri-buting a libellous pamphlet, PI, attacking the respondent’s opponent.
There was evidence that Fonseka was on polling day driving a carfor which the respondent had obtained petrol (as he had obtained itfor a large number of other cars) for the purpose of conducting personsto the poll ; and the respondent admits that Fonseka was his agent onthat day for that limited purpose only. But he denies that his agencywas wider than that; and it was for the petitioner to prove that theagency was of a wider nature, in order to bring the distribution of libel-lous pamphlets home to the respondent. This the petitioner failed todo. In any event the circumstances of the distribution of PI by Fonseka,on which I have commented, are such as to raise more than a suspicionthat Fonseka—even assuming his agency to have been of such a generalnature as would prima facie saddle the respondent with responsibilityfor the distribution of PI,—was seeking to be arrested in order to furnishevidence which might be led against the respondent (as indeed it was)in the event of ah election petition—in brief, was distributing PI inorder to betray him. And it has been laid down in the Stafford case,
1 O’M & H, 230 (vide Rogers on Elections, 20th Ed., Vol. 2, at page 406)that a candidate is not responsible for the acts of an agent who doesa corrupt act with a view to betray him. I do not say that I am satisfiedon the evidence beyond a reasonable doubt that Fonseka distributedPI with a view to betraying the respondent. But I do say that thecircumstances of its distribution give rise to such a suspicion that thiswas his object, that it would be quite unsafe and improper to allow thepetition to succeed on this ground.
That concludes the charges with regard to the publication of falsestatements against the opposing candidate, all of which fail. I turnnow to the charge that a large number of election pamphlets, PI, andP3 to P9 inclusive, were printed by the respondent, or with his knowledgeor consent, or by his agents, which did not bear upon the face of themthe names and addresses of their printers and publishers, which actis made a “ corrupt practice ” under section 58 (1) (c) of the Ceylon(Parliamentary Elections) Order in Council, 1946. With regard to thepamphlets PI, P3 and P4, this charge cannot succeed, for I have alreadyheld that neither the respondent nor his agents have been proved to havebeen responsible for them. It remains, however, to consider this chargein relation to the pamphlets P5 to P9 inclusive. Not one of thesepamphlets contains any false statement concerning the opposingcandidate. Each purports to be written by “ a group of voters ” or asimilar sobriquet for anonymous authors. And at the foot of each ofthem are printed the words :—“ Swastika Press, Colombo ”. Therespondent has admitted that he paid the Swastika Press for the printingof P6 and P9 , and we need therefore consider only the legal position withregard to these two, for an offence with respect to any one of the five
WINDHAM J.—Perera v. Jayewardene.
pamphlets would be sufficient to establish the charge, and there areno other features or circumstances differentiating these two from theremaining three.
Now in view of the respondent’s admission, there are only two questionsto consider, and each of them is mainly a legal one. First, do the words“ Swastika Press, Colombo ” printed at the foot of these pamphletsconstitute a sufficient compliance with the requirement of section 58 (1)
that the names and addresses of both printer and publisher shallbe given ? And secondly, even if they do not constitute a compliance,can the manager of the Swastika Press (the respondent’s admittedagent) be held to have committed the “ corrupt practice ” of whicha non-complier is stated by the section to be guilty, in the absence ofany proof of corrupt intention on his part, or on the part of the respondent?I will deal with these questions in that order.
The first question resolves itself into this, namely, whether the SwastikaPress can be deemed to be the name not only of the printer (which isadmitted) but also of the publisher ? There appears to be no reporteddecision directly on the point in Ceylon, or in the English authorities.One thing I think is clear, namely, that the printer of a pamphlet is notnecessarily its publisher, though he may be. But where he is, shouldit be so indicated on the pamphlet, by the insertion (for instance) of suchwords as—“ Printed and published by X ” ? This appears to be themanner in which newspapers in this country comply with the require-ment of section 6 of the Newspapers Ordinance (Cap. 138) that the nameof the printer and publisher should be indicated. And I think the samecourse ought to be followed in the case of election pamphlets, if it isintended to indicate that the printer is also the publisher. In viewof the requirement of section 58 (1) (c) that the “ names and addresses ”(plural) of printer and publisher should be given, I do not consider thatthe insertion of such ambiguous words as “ Swastika Press, Colombo ”is a sufficient compliance. Moreover, in the case of an election pamphlet,it would be wrong to assume that the printer is the publisher. The actof publishing has been defined as the act of “ sending forth for sale orfor general distribution ”. A printer of a pamphlet is generally paidonly for printing it, and there his interest Ceases. He is not usuallyconcerned with bringing it to the public. And in the present case itwould seem, from the relevant receipt given by the Swastika Press tothe respondent for his payment “ on account of printing of electionwork ”, that the interest of Swastika Press likewise ended with theprinting. Nor does the respondent himself allege that they were in anyway concerned with bringing these pamphlets before the public. Itis instructive to note the words of Madden J. in his judgment in theNorth Louth Case 6 O’Malley and Hardcastle, at page 165, commentingupon the similar requirement of section 18 of the Corrupt and IllegalPractices Prevention Act, 1883, that the “ names and addresses of theprinter and publisher ” should appear on the face of the document.
“ Section 18 ” he says “ requires under severe penalties that every bill,placard or poster having reference to an election should bear upon itsface the name of the printer and publisher of it, thus insuring informationnot only as to the actual printer, but as to the person by whose authoritythe document was circulated in the constituency It is not suggested
WINDHAM J.—Per era v. Jayewardene.
in the present case that PI was circulated, in the constituency by theauthority of the Swastika Press ; but even if it had been, the SwastikaPress should, as I have said, have been indicated expressly as beingboth the printer and the publisher. Pot these reasons I hold that,subject to what I shall have to say on the question of corrupt intent,there was a non-compliance with section 58 (1) (c) on the part of theSwastika Press, the admitted agents of the respondent, in respect ofthe pamphlets P6 and P9.
That brings us to. the second question of law, namely, whether theSwastika Press can be held guilty of a “ corrupt practice ” under section58 (1) (c) by reason of this technical non-compliance, in the absenceof any proof of their having committed the act of omission with a corruptmind. It is admitted by counsel for the petitioner that neither themanager of the Swastika Press nor the respondent himself had anykind of “ mens rea ” in the matter ; and indeed they no doubt considered(as the respondent stated in evidence that he. considered) that theywere duly complying with the section by inserting the words “ SwastikaPress, Colombo ” at the foot of these pamphlets. In fact, as I haveshown, the exact requirements of section 58 (1) (c) have until this daynot been made clear, and I myself have come to a decision on the point notwithout some hesitation.
Now the offence created by section 58 (1) (c) while in England it ismerely an illegal practice, for which relief is normally given, has in Ceylonbeen made a corrupt practice, entailing far more serious consequences,and for which no relief can be given. But can an act be held to be acorrupt practice if there is no proof that it was in fact done corruptly,giving to that word the meaning which has been clearly laid down in along line of decisions both in England and in this country ? The argu-ment that the offence created by section 58 (1) (c) is an offence per seeven in the absence of corrupt intention is based on the fact that thesection states that whoever prints, &c., a handbill not containing theprescribed particulars shall be guilty of a corrupt practice, and doesnot state that whoever Corruptly prints, &c., shall be guilty of a corruptpractice. Now the legislature could undoubtedly make into a “corruptpractice ” an act which is not in fact corrupt; that is to say, it couldenact that such an act is to be deemed to be a corrupt practice. Forthe legislature, as has been said, can do anything except “ make a man awoman or a woman a man ”, and it can certainly make its own dictionary.But before this Court would feel itself constrained to do suchviolence to logic the intention of the legislature would, in my view, haveto be expressed in more unambiguous terms than in section 58 (1), as,for example, by enacting that the act in question should be deemedto be a corrupt practice notwithstanding that it was committed withoutcorrupt intention. In such a case, of course, this Court would have togive effect to such an unequivocal provision. But the terms of section58 (1) are not unequivocal.
An examination of the various offences set out in section 58 (1) as beingcorrupt practices discloses that in only two cases, namely the offencetinder paragraph (c) now under consideration and the offence of personationunder paragraph (a), is the act made a corrupt practice without theaddition of some words requiring a “ mens rea ” or wrongful intention.
WINDHAM J.—Perera v. Jayewardene.
Treating, undue influence and bribery, set out in parargaph (b), are actswhich are defined in sections 55, 56 and 57 respectively, wherein theyare required to have been done either corruptly (section 55), or in orderto compel persons to vote or refrain from voting (sections 56 and 57),or to induce a person to procure the return of another as member, oras a reward to a person for having so done (section 57). The acts setout in paragraphs (d) and (e) of section 58 (1) are required to have beendone for the purpose of affecting the return of any candidate. And theoffence of making false declarations of election expenses, set out in para-graph (/) is required to be done knowingly. There remain only persona-tion, and the offence now under consideration ; for the definition of“ personation ” in section 54 does not require that act to have been donecorruptly.
It is at this point that the judgment in the case of Stepney Divisionof the Borough of Tower Hamlets, reported in 4 O’Malley and Hardeastle,34, may be profitably cited. That judgment dealt, among other things,with the exact point which is now under consideration, but in respectof personation. Personation is defined in section 3 of the Corrupt andIllegal Practices Prevention Act, 1883, by reference to the definitionin section 24 of the Ballot Act, 1872, wherein it is defined in terms almostexactly similar to those of section 54 of our Order in Council; and thedefinition there, just as in our section 54, does not include any require-ment that the act shall be done corruptly, but merely defines the actwithout reference to any state of mind or intention, Section 3 of theAct of 1883 provides that personation, as so defined, shall be a “ corruptpractice ”. Section 36 of the same Act then goes on to provide that aperson guilty of a corrupt practice 'hall be prohibited from voting.In this Stepney case, decided in 1886, the Court had found a voterguilty of the defined ingredients of personation, but found that he hadcommited the act without any corrupt intention. The Court, on thesefacts, having the provisions of the Act of 1883 before it, held that hewas not guilty of a corrupt practice. In the following passage fromthe judgment of Field J., at page 48, the very argument was consideredwhich I have been considering in connection -with the offence undersection 58 (1) (c) of our Order in Council. The passage reads as follows :—“ There might indeed in this case, but for the principle, have been adifficulty arising from the mode in which the offence of personation isdefined in the Act of 1883, and for this reason, that the language usedby the legislature is this, that a person shall be guilty of the offence ofpersonation if he in fact does a certain thing—that is the language,without putting in the words ‘ corruptly or wilfully or ‘ corruptlyor knowingly ’. Therefore, no doubt, upon that it might be contendedvery plausibly that the Legislature, having a great horror of personationvery properly determined to strike at the fact, and omitted all questionsof corrupt mind and intention. And we know that that is the case ina great many statutes, where it is the fact that is struck at, and where thequestion of mind does not interfere. Therefore it was that I entertainedsome doubt if a man did an act which the latter part of the section saysis personation, whether you should not in point of fact find all the con-sequences, and therefore declare him guilty of personation. But I am
Perera v. Perera.
quite satisfied that it would be a very wrong construction, if we wereso to construe this statute, because, though I do not agree wholly withthe view that I must look at the consequences in order to construe thestatute, it is not for me to say that the Legislature has not said what ithas said, but if the Legislature has not used the word in a particularplace, which has the effect of this, and the consequences of the act aretwo years’ hard labour and a deprivation of political rights for sevenyears, and incapacity to fill any office of any kind for the same period,then I must come to the conclusion that the Legislature could not haveintended, in using the language in that section, to say that the merefact of doing a thing of this kind was a criminal offence which wasfollowed by such serious consequences
The above interpretation, which has been follQwed in 1910 in theEast Kerry Case, 6 O’M and H, 58, at page 90, and with which I res-pectfully concur, entirely supports the construction which I have placedupon section 58 (1) (c). It makes no difference that the Offence waspersonation in that case, and the printing of pamphlets not bearing thename of the publisher in the present one. The point is that the actin each case cannot be held to be a corrupt practice (carrying severepenal consequences) since it was not done with a corrupt mind, and thestatute did not unequivocally provide that a corrupt mind was not anessential ingredient of the offence. For these reasons the charge undersection 58 (1) (c) must fail.
There remains only one further charge, namely, that of undue influenceby intimidation. Evidence was called in support of only one incidentunder this head, namely, the intimidation of two voters by one K.. A.CaroJis, an alleged agent of the respondent. The evidence led was whollyinadequate to support the charge, and in particular there was no evidenceto prove that Carolis was an agent of the respondent (an allegation whichthe respondent denied). Mr. Wikramanayake, in his closing addressfor the petitioner, very properly intimated that he could not seriouslypress this charge, and I need not therefore consider the evidence in anyfurther detail. The charge fails.
All the charges in this petition having thus failed, I declare that therespondent, Mr. J. R. Jayawardene, was duly elected as a member for theKelaniya Electoral District. The petition is dismissed with costs,which I fix at the sum of Rs. 8,000.