001-NLR-NLR-V-49-PERERA-Petitioner-and-JAYAWARDENE-Respondant.pdf
THE
NEW LAW REPORTS OF CEYLONVOLUME XLIX
1947Present: Soertsz S. P. J., Canekeratne and Nagalingam JJ.
PERERA, Petitioner, and JAYAWARDENE, RespondentElection Petition No. 18 of 1947, Kelaniya
Election petition—Security for costs—Number cf charges—Meaning of the word“ charge ”—Election Petition Rules, 1946—Rule 12.
By the word charges in rule 12 (2) of the Election Petition Buies, 1946, ismeant the various forms of misconduct coming under the description of corruptand illegal practices. Whatever, for example, may be the number of aotsof bribery sought to be proved against a respondent, the charge to be laidagainst him in a petition is one of bribery.
TiUekewardene v. Obeysehere (1931) 33 N. L. R. 65 affirmed.
f Jp h iR was an interlocutory matter in connection with an electionpetition. It was referred to a Divisional Bench by Basnayake J.in the following terms :—
“ This is an interlocutory matter in connection with the electionpetition presented on October 13, 1947, by one Kalugamage AnthonyPerera of Kelaniya praying that the election of Junius Richard Jaye-wardene, member for Electoral District No. 10, Kelaniya, be declared tobe void.
“ The material paragraph of the petition is as follows :—
* 3. Your petitioner submits that the election of the said JuniusRichard Jayawardene the respondent above named was void for thefollowing reasons :—
that before and dining the election the said respondent and his
agents and other persons with his knowledge and consent aidprint, publish and distribute or cause to be printed and dis-tributed handbills which did not bear upon the face thereofthe names and addresses of their printers and publishers andthat the said omission is a corrupt practice within the meaningof section 58 (1) (c) of the Ceylon (Parliamentary Elections)Order in Council, 1946.
that before and during the election the said respondent and
his agents and other persons with his knowledge or consentdid make and publish false statement of fact in relation tothe personal character and conduct of the other candidatereferred to in para 2 above for the purpose of affecting thereturn of that candidate and that thereby a corrupt practicehas been committed ■within the meaning of section 58 (1) (d)of the said Order in Council.
2
Perera v. Jay a war dene.
that before and during the election, the said respondent and hisagents and other persons with his knowledge or consent, didinflcit or threaten to inflcit injury, damage, harm or loss upona large number of electors in order to induce or compel themto refrain from voting at the said election and that therebythe corrupt practice of undue influence has been committedwithin the meaning of section 56 of the said Order in Council
“ Within the time prescribed by rule 12 of the Parliamentary Elec-tion Petition Rules, 1946 (hereinafter referred to as the Election PetitionRules) the petitioner gave security for the payment of all costs, chargesand expenses that may become payable by him the deposit of a sumof five thousand rupees with the Commissioner of ParliamentaryElections.
“ On October 29, 1947, the respondent Junius Richard Jayawardenethrough his Proctor and agent lodged a statement of objections thematerial paragraph of which are as follows —
‘5. It is submitted that the security allowed to have been givenis of an amount less than that required by rule 12 (2) of the ThirdSchedule of the Ceylon (Parliamentary Elections) Order in Council,1946, as the number of charges set out in the petition filed by thepetitoner is more than three.
6. As security has not been given by the petitioner as requiredby the aforesaid rule it is submitted that no further proceedingsshould be had on the said petition ’.
“ The Election Petition Rule referred to above reads :—
‘ 12.(1) At the time of the presentation of the petition or within
three days afterwards, security for the payment of all costs, charges,and expenses that may become payable bv the petitioner shall be givenon behalf of the petitioner.
•■(2) The security shall be to an amount of not less than five thousandrupees. If the number of charges in any petition shall exceed three,additional security to an amount of two thousand rupees shall begiven in respect of each charge in excess of the first three. Thesecurity required hy this rule shall be given by a deposit of money.
(3) If security as in this rule provided is not given by the petitionerno further proceedings shall be had on the petition, and the respondentmay apply to the Judge for an order directing the dismissal of thepetition and for the payment of the respondents’ costs. The costsof hearing and deciding such application shall be paid as ordered bythe Judge, and in default of such order shall form part of the generalcosts of the pet ition. ’
“ On November 10, 1947, the matter of the objections of the respondentcame up before me to be dealt with by way of an interlocutory matterunder section 28 (5) of the Ceylon (Parliamentary Elections) Order inCouncil,' 1946.
“ I heard counsel for both the petitioner and the respondent and atthe conclusion of the argument of the counsel for the respondent I
Perera v. Jayawardenc.
3
informed counsel that I proposed to reserve the questions which arisefor adjudication on the objections lodged by the respondent to a benchof two more Judges as they appeared to me to be questions of difficulty.
“ As both parties will be heard once more it is unnecessary to makeany reference here either to the submissions of Counsel or the authoritiescited by them.
“ Briefly the respondent’s main contention was that each of theparagraphs 3 (1) and 3 (2) contained more charges than one and thattherefore the total number of charges in the petition being more thanthree the security of five thousand rupees was insufficient. He alsocontended that under paragraph 3 (3) of the petition the petitioner wasnot entitled tc seek to prove more than one specific instance of the offenceof undue influence.
“ The questions that arise for decision are :—
(а)Does paragraph 3 (1) of the petition contain more charges than
one within the meaning of that expression in rule 12 of the
Election Petition Rules ?
(б)Does paragraph 3 (2) of the petition contain more charges than
one within the meaning of that expression in rule 12 of the
Election Petition Rules 1
Is the petitioner entitled to seek to prove more than one specific
instance of the offence of undue influence under paragraph
3 (3) of the petition ?
Has the security required by rule 12 of the Election Petition Rules
been given on behalf of the petitioner ?
“ The questions arising for adjudication are apart from their difficultyquestions of considerable importance, a fact which both counsel stressed.
“I, therefore, reserve, under section 48of the Courts Ordinance, the abovequestions for decision by a bench of five Judges of the Supreme Court .”
V. Perera, K.C. (with him D. S. Jayewickreme, C. S. Barr-Kumara-kulasinghani and H. W. Jayewardene), in support of the application.—Thequestion for determination is whether the petition discloses more thanthree charges. Only a sum of 5,000 rupees has been deposited as securityand if the petition discloses more than three charges security is not givenas required by Rule 12 (2) and, therefore, the petition must be dismissedunder Rule 12 (3) of Parliamentary Election Rules, 1946.
The matter for decision is the meaning of the work “ charge ” in Rule 12
In Tillekewardane v. Obeyesekera1, Drieberg J. held that word “ charges ”in similar context meant the particular types of misconduct such as briberytreating, &c., and that, therefore, any number of acts, instances or casesof a particular label of misconduct would constitute one charge. That isto say, any number, say, a hundred instances of bribery would come underone generic charge of bribery and any number, say, a hundred cases, oftreating would come under one generic charge of treating, &c.
It is submitted firstly that Tillekewardane v. Obeyesekera {supra) waswrongly decided on this point and, secondly, even if that case has tobe considered as rightly decided, that there are more than three chargesdisclosed in this particular petition.
1 (1931) 33 N. L. R. 65.
4
Per era v. Jayaioardene.
Assuming that TiUekewardane v. Obeyesekera {supra) has been correctlydecided, one finds on perusal of the Parliamentary Order in Council, 1946,that section' 64 defines impersonation, section 55 treating, section 56undue influence, and section 57 bribery. Section 58 consists of varioussub-heads. Section 58 (a) deals with impersonation, 58 (fc) deals withundue influence, treating and bribery, 58 (c) deals with printing,publishing, &c., of certain pamphlets. All these acts under 58 (a), (fa), (c)are made into corrupt practices and made punishable as such. But adistinction is clearly noticeable between acts in 58 (a) and (b), which havealready been defined as offences by sections 54, 55, 56 and 57, and actsin section 58 (c) which are for the first time made punishable as corruptpractices by section 58. So that in the process of counting the numberof charges it is possible to include any number of instances or acts any ofparticulars genus of misconduct which has already been defined, such asbribery, treating, &c. ; but when it comes to acts under 58 (c). e.g.,printing, publishing, &c., no such enumeration is possible. Printing andpublishing handbills are two different and distinct acts. See Me. Farlanev. Hulton1. It is also quite clear that distributing is also a differentkind of act. Under the Order in Council a person would be guilty of acorrupt practice if such person prints a certain type of handbill and doesnothing else. So also a person who only publishes it would be guilty of acorrupt practice. Likewise the person who only distrbutes it and doesnothing else would be guilty of a corrupt practice. On the basis thatprinting, publishing and distributing certain tjpe of handbill is each aseparate corrupt practice and, therefore, each a separate charge, thereare more than three charges disclosed in this petition.
But it is clear that the decision in TiUekewardane v. Obeyesekera (supra)is incorrect. The decision is based on the English Law. The analog)' isfallacious in that in Election Petitions in England a fixed sum, i.e., £1,000is given as security for any number of charges, whereas under our law'security increases as the xiumber of charges increases. The securityunder Rule 12 (1) is given for the payment of all costs, charges andexpenses that may become playable. Surely the costs and expenseswould depend on the number of acts or instances into which the Courthas to inquire and not on the label or particular type of misconduct.The conclusion is irresistible that charge in Rule 12 (2) means a particularact, instance or case of any particular corrupt or illegal practice.Perhaps the decision of Drieberg J. would have been different if he hadbefore him the recommendations of Donoughmore Commission in thisrespect. That report of the Commission deals -with the evil which itsought to remedy by providing additional security. That Report,•would be relevant to find out the evil it sought to remedy. See thejudgment of Lord Halsbury in Eastman Photographic Materials Company,Ltd. v. Comptroller of General Patents2; Assam Railway and TradingCompany, Ltd. v. Commissioners of Inland Revenues; Heydon’s Case1
E. G. Wickramanayake (with him B. Aluwihare, S. E. J. Fernands) and
B. Perera), for the petitioner, respondent.—The decision of Drieberg J.
1 L. R. ISO9 1 Ch. SSiE at 8S$.5 L. R. 1936 A. C. 415 at 449.
* L. R. 180S A. C. 571.* Ruling Cases Val. XIV., p. SIC.
SOERTSZ S.P.J.—Rerera v. Jnyairardenc
5
in Tillekewardane.«’. Obeyesekera (supra) has been consistently followed in along series of cases. Among theso are Vinayagamoorthy v. Ponnambalam1;Jeelin Silva v. Kularatne2- Mohamed Mihular v. N'alUah etal3
Generally costs awarded in election petition inquiries do not come tomuch more than Rs. 5,000. In some inquiries costs have come to consi-derably less than Rs. 5,000. So then 5,000 rupees which is usuallydeposited -in election petitions seems to be a very reasonable sum toeover costs, charges and expenses.
The Parliamentary Elections Order in Council differs in essentialrespects from the State Council Elections Order in Council even withregard to Election Rules. But there is no departure with respeot to theamount of security and increase of amount of security when there aremore charges than three in Rule 12 (2). The provisions in this respectare the same in both Orders in Council. As the Legislature has introducedthe same provision in the same words with respect to the same subject-matter after such words have been consistently interpreted in a certainway the Legisltture must be deemed to have adopted that interpretation.See In Re Cathcart, Ex parte Campbell4 ; Young v. Gentle5 ; The Com-missioners for Special Purposes of the Income Tax v. Pemsels. See also1937 Ed. Maxwell on Interpretation of Statutes, p 26 ; 31 Hailsham,sections 624 and 626.
Though the Donoughmore Report had not been cited at the argumentin Tillekewardane v. Obeyesekera (supra) the question of inconvenience torespondent by numerous charges was considered in that case.
As far as avoiding an election is concerned there is no difference betweenone kind of corrupt or illegal practice and another kind of corrupt ofillegal practice. All are grouped together. In any event no differencecan be made with regard to costs to be incurred in respect of one oranother of corrupt or illegal practice. Counsel also cited Bettesworth v.Allingham1.
V. Perera, K.C., in reply.—The rule of the Legislature to adoptthe judicial interpretation in certain cases is not a canon of interpretationbut an ordinary rule which must be applied reasonably. See Barras v.Aberdeen Steam Trawling and Fishing Company, LtdA
Cur. adv. vult.
December 8, 1947. Soertsz S.P.J.—
The matter now before us raises the question of the sufficiency of thesecurity given by the petitioner under Rule 12 of the ParliamentaryElection Petition Rules, 1946. It has been referred to us, a divisionalbench of three Judges, at the direction of My Lord the Chief Justice.It had, in the first instance, gone before Basnayake J. who referred it toa Bench of five Judges but it was found difficult to assemble such a Benchand the matter was urgent.
1 (1936) 40 N. L. R. 1785L R.1915 2 K. B. D. 661 at 668.
* (1943) 44 N. L. R. 21.8L. R.1891 A. C. 531 at 591.
8 (1944) 45 N. L. R. 251.7L. R.1885 16 Q. B. D. 44.
4 L. R. 1870 5 Ch. 703 at 706.8L. R.1933 A. C. 402 at 446.
SOERTSZ S.P.J.—Perera v. Jayawardene,
fi
The rule we have to interpret is in these terms :—
12.(1) “ At the time of the presentation of the petition or within
three days afterwards security for the payment of all costs, chargesand expenses that may become payable by the petitioner shall be givenon behalf of the petitioner.
The security shall be to an amount of not less than five thousandrupees. If the number of charges shall exceed three additionalsecurity to an amount of two thousand rupees shall be given in respectof each charge in excess of the first three. The security requiredby this rule shall be given by a deposit of money.
If security as in this rule provided is not given …. nofurther proceedings shall be had on the petition and the respondentmay apply to the Judge for an order directing the dismissal of thepetition and for the payment of the respondent’s costs, &c.”
The question for consideration arises on an application, made by therespondent to the petition for the dismissal of it on the ground that“ security as in this rule provided ” has not been given, the respondent’scontention being that in the petition of the petitioner there are more thanthree charges disclosed and that, for that reason, the sum of Rs. 5,000which is the sum admittedly deposited, is insufficient.
Does then the petitioner’s petition disclose only three charges or doesit disclose more than three charges? That depends on the meaningof the word “ charges ”. In paragraph three of the petition, the petitioneravers that the election of the respondent be “ void for the followingreasons ”.
That before and during the election the respondent and hisagents and other persons with his knowledge or consent did print,publish and distribute or cause to be printed, published and distri-buted handbills which did not bear upon the face thereof the nameand address of the printers and publishers, &c.
That before and during the election the respondent and hisagents and other persons with his knowledge or consent did makeand publish false statements of facts in relation to the personalcharacter and conduct of the other candidate …. for thepurpose of affecting the return of that candidate, &c.
That before and during the election the respondent and hisagents ana other persons with his knowledge or consent, did inflict,or thereafter threaten to inflict injury, damage, harm or loss upon alarge number of electors in order to induce or compel them to refrainfrom voting, &c.
The respondent contends that in reason (1) or ground (1), on a properinterpretation of the averments therein contained, every act of printingwas a distinct corrupt practice ; similarly, every act of publishing aswell as every act of distributing ; so that reason or ground (1) containedin posse what might turn out to be hundreds or perhaps thousands ofdistinct corrupt practices and in that sense, hundreds or perhaps thou-sands of separate charges. Likewise in respect of reasons (2) and (3) therewere, the respondent contended potentially, a very large number ofdifferent offenoes, each one of which, when presented to the EleotionCourt for consideration, should be treated aa a separate charge.
SOETtTSZ S.P.J.—Perera r. Jayewardene.?
A similar question arose before Drieberg J. in the case of Tillekawar-dene v. Obeyesekere1, in which tinder allegations of bribery, treating, andcontracting for payment for the conveyance of voters, the petitionerproposed to adduce seventeen cases of bribery and twenty-six casesof treating and fourteen cases of payment for the conveyance of votersand the respondent moved for the dismissal of the petition on the groundthat the security of Rs. 5,000 which had been given was inadequateas there were more than three charges. That learned Judge answeredthe question thus : “ In my opinion , by the word ‘ charges ’ in rule 12 (2)is meant the various forms of misconduct coming under the descriptionof corrupt and illegal practices, for example, whatever may be thenumber of acts of bribery sought to be proved against a respondentthe charge to be laid against him in a petition is one of bribery. The,fact that the security'liere has to depend on the number of matters sub-mitted for inquiry in the petition does not compel‘us to adopt a differentview of what these matters are from what is accepted in practice inEngland, nor does it necessitate any departures from what an electionpetition should state. The matters on which the petition prays forinquiry are that the respondent committed the offences of bribery,treating and conveyance of voters and so far as the petition is concerned,each constitutes a charge against the respondent
“ It can be urged that the requirement in the form of the petitiongiven in the rule that ‘ the facts and the grounds on which the petitionersrely ’ should be stated, calls for an averment of each act of, e.g., bribery,and that an averment generally that the respondent has been guiltyof the offence of bribery is not enough ”, but even on that assumptionDrieberg J. held that the word “ charges ” is ambiguous and may beapplied to the offence stated in the petition and also to each act con-stituting the offence though the latter are more often referred to as“ cases ”, or “ instances ” of the offence and that for the purpose ofascertaining the adequacy of the security it is the offences and not the“ cases ” or “ instances ” that matter.
Mr. H. V. Perera submitted to us that the conclusion to which DriebergJ. came is fallacious in that it is based on a false analogy, namely, theanalogy of the English practice which he argues was inapplicable inasmuch as in England the security was fixed and constant irrespectiveof the number of charges, whereas, here the security varies in proportionto the number of charges. Mr. Perera also contended that Drieberg J.had not before him the Report of the Royal Commissioners whichshowed that they were much concerned to prevent multifarious andvaxatious charges.
In regard to this latter contention, although the report itself doesnot appear to have been referred to by citation in the course of theargument, Drieberg J., nevertheless, deals with that aspect of the matter.He sayB, “ It was urged that it was the intention of the Legislature torequire security to prevent a large number of unlawful acts being allegedon insufficient ground and to prevent a protracted trial. The objectof the provision is stated in the rule itself and this is to secure asuccessful respondent against the costs incurred by him …. The
*(1931)33 N. L. R. 63.
8
SOERTSZ S.P.J.—Perera. v. J ayewardene.
Legislature could not have acted in the belief that the cost of litigation isheavier here than in England ”, and he went on to point out that £1,000security had to serve in England in the Hereford Case1 for 184 casesof bribery alone and in the Norwich Case2 for nearly 100 such instances.On the contention of the respondent before him, the security would havehad to be Rs. 367,000 and Its. 199,000. Perhaps the report of the RoyalCommissioners was not cited to Drieberg J. in the view that it wasirrelevant in regard to a question of the interpretation of words and so,
X beliovo, it would be. In Assam Railways Lid. v. C. 1. It.2 LordWright made this statement : “ It is clear that the language of a Ministerof the Crown in proposing a measure in Parliament which eventuallybecomes law is inadmissible and the report of the Commissioners is evenmore removed from value as evidence of intention because it does notfollow that their recommendations were accepted.”
Mr. Perera sought to meet the point made by Drieberg J. regardingthe magnitude of the security involved by submitting that the remedyis in the hands of the petitioners themselves. They could choose afew of the best instances and cases and rely upon them. That may beso but it is a counsel of perfection.
Elections bring candidates in contact with tens of thousands of votersand within the twenty-four days available to the petitioner for thegiving of security it would hardly be possible to sift the cases sufficientlyto make a final selection of them and to stand committed to them.Moreover, generally speaking, a few cases of instances of an illegal orcorrupt practice could hardly create the kind of impression that anElection Tribunal would require or, at least desire, before it avoided anelection with all the serious consequences that such an order wouldentail. That is why it would be reasonable to suppose, as Drieberg J.points out, that both in England and here “ it is not an unusualfeature in election petitions to find numerous instances and cases ofcorrupt practices relied upon One swallow, or for that matter several,hardly ever makes a summer in the sphere of elections. It cannottherefore be fairly said that it is not relevant to calculate, as Drieberg J.did, the figures that would result on an adoption of the manner ofcalculation suggessted by the respondent. It is not only not irrelevantbut a circumstance that may properly be taken into account when weare considering the meaning to be given to the ambiguous word” charges ”in Rule 12. An argument ab inconvenienli, it must be conceded, ismore often than not a treacherous argument ; but not, I think, in sucha case as this, for as Brett M. R. observed in the case of Rex r. TunbridgeOverseers4 ” With regard to inconvenience, I think it is a most
dangerous doctrine if an enactment is such that by reading
it in its ordinary sense, you produce a palpable injustice, whereas byreading it in a sense it can bear, though not exactly in its ordinary sense,it will produce no injustice, then I admit one could assume that theLegislature intended that it should be so read as to produce no injustice. ”Drieberg J’s reading of rule 12 and his interpretation of the word“ charges ” in it appears to afford a good illustration of that canon of
110 M. <b H. 194.
” {1935) 3 A. O. 445.
>10 M. <fr H. 91.a (1884) 13 Q. B. D. 242.
SOERTSZ S.i*.J.—Perera v. Jayetoardene.
U
interpretation. But, today there is much stronger reason for followinghis ruling because when Buie 12 was re-enacted in 1946, the word“ charges ” reappears in precisely the same way, and it is a well establishedprinciple that when a word has received a judical interpretation and thesame word is re-enacted, it must be deemed to have been re-enacted inthe meaning given to it. As Sir W. M. James L. J. remarked inEx parte Campbell in re Cathcart1: “ Where once certain words in an Aotof Parliament received a judicial construction in one of the superiorCourts, and the Legislature has repeated them without any alterationin a subsequent statute, I conceive that the Legislature must be takento have used them according to the meaning which a Court of competentjurisdiction has given to them.”
Probably it was in view of this difficulty that respondent’s counseldid not persist too strongly with his objection so fax as reason or ground
in the petition was concerned for that matter falls clearly withinthe ratio decidendi in that case. He, however, maintained that in thereasons or grounds (1) and (2) of the petition there was a multiplicityof charges for the petitioner averred therein that (1) the respondent,
his agents, (3) others with his consent or knowledge of (a) printing,(6) publishing, (c) distributing, (d) causing to be printed, (e) causing tobe published, (/) causing to be distributed handbills, (4) the respondent,
his agents, (6) other persons with his consent or knowledge, did (g)make, (h) publish false statements of fact in regard to the personal con-duct and character of the other candidate. Counsel was prepared tocarry his contention to its logical conclusion and to say that each handbill,
printed, (6) published, (c) distributed and each atatement (a) made,
published constituted a separate charge. I have put the matterwith this particularity in order to make explicit all that is implied inthis contention. If that contention is right, then the security involvedwould be in the region of a million rupee mark. But counsel submitsthat that is irrelevant and that there is no other logical method of dealingwith section 58 (1) (c), (d) and (e) than the method of enumerationbecause, unlike in the offences of bribery, treating or undue influencethere is not to be found, in 58 (1) (c), (d) and (e), a genus to which“ printing ”, “ publishing ”, “ distributing ”, and “ making ” can berelated as sub-divisions. That appears to me to be too slender areed to rely upon for, looked at in that way, the dissemination ofanonymous printed handbills in the one case and the dissemination offalse statements in the other suggests itself readily as the genus theLegislature had in view.
For these reasons I come clearly to the conclusion that we oughtnot to depart from the ruling given by Drieberg J. but to affirm it asapplicable to all the grounds or reasons that the petitioner relies on inhis petition.
I would reject the objection with costs.
CANEKEEATiTE J.—I agree.
Naqaiangam J.—I agree.
1 (1870) 3 Ch. at p. 706.
Objection overruled.
7 – N.L.R. Vo] – xlix