Piyadasa v. Goonesinha.
Present : Hearne J.PIYADASA v. GOONESINHAIn re Writ of Quo Warranto.
Municipal Election—General undue influence—Right" of voter violated indetermined and unscrupulous way—No free and fair opportunity ofelection –Section void.
■ Where, at an election the right of the voter to go to the poll was'Violated in a most determined and unscrupulous way,—
Held, that the constituency had not a free and fair opportunity ofelecting the candidate which the majority might have preferred and that■^he election was void.
S the result of an application for a writ of quo warranto to have the
election of the respondent as Municipal Member for the MaradanaSouth Ward of the Colombo Municipality set aside, a rule nisi was grantedand Soertsz J. ordered an inquiry into the question whether the respond-ent's election had been procured by general undue influence and general
S. Barr Kumarakulasingham (with him M. M. Kumarakulasir.gham,S. Saravanamuttu, and H. W. Jayawardene), for the petitioner—Theissues raised in this case affect the whole constituency, or to put it higherthey^ affect the whole public life of this country, especially as the libertyof the voter and -the liberty of the franchise are involved. The scope ofthis inquiry has been restricted to two main issues by Soertsz J. when heordered the inquiry, namely, as to whether the respondent’s electionhad been obtained by (a) general undue influence and/or (b) bribery.Evidence has been led only on the first issue.
Undue influence is the using of any violence or threatening any damage,or resorting to any fraudulent contrivance to restrain the liberty of avoter so as either to compel or frighten him in voting or abstainingfrom voting otherwise than he freely wills (Lichfield case, l O’M. & H. 25).The evidenc.e led clearly establishes the fact that the freedom of voting
Piyadasa v. Goonesinha.
has been seriously impaired. There have been acts of violence andintimidation not only on the day of the election but also on days previousto it. These have been directed not against each and every personbut particularly against the ordinary voter. If these acts have resultedin men of ordinary nerve being prevented from voting then the electionhas been vitiated (Salford case, 1 O’ M. & H. 140). Even though themajority has polled the election may be invalid (Drogheda case, 1 O’ M. &
255). In this case the vast number of impersonations show that therewas in fact no real election.
An election is a voluntary voting of the people. Where acts of violence,intimidation and impersonation prevent a substantial number of personsfrom voting, then there is no election (Dudly case, 2 O’M. & H. 120, 121).
A Municipal election can be avoided at common law, where there isno fair and free opportunity for the exercise of the franchise ; wherethere is in fact no electing at all (Woodward v. Sarsons and Sadler').
V. Ranawake (with him D. D. Athulathmudali, Dodwell Gunawardana,V. F. Gunaratne and S. R. Wijayatilake), for the respondent.—Toconstitute intimidation at common law, the intimidation must be sogeneral and extensive in its operation that it cannot be said that thepolling was a fair representation of the opinion of the constituency,in which the intimidation took place. Where intimidation is confined toparticular districts, so that it can be demonstrated that it could nothave affected the result of the election, the return ought not to beavoided. Durham case, 2 O’M. & H. 152.
The disturbances previous to the election were purely of a local natureand were not so widespread as to affect the entire electorate. Nor isthere evidence to show that the supporters of the respondent wereresponsible for these disturbances. Partial intimidation cannot avoidan election. Thornbury case, 4 O’M. & H. 66.
To put intimidation upon a parallel with bribery and treating, it mustbe spread over such an extent of ground, it must permeate through thecommunity to such an extent that the tribunal considering the case issatisfied that freedom of election has ceased to exist in consequence.There must be a “ communism of intimidation ” Drogheda case, 1O’M. & H. 252 ; Staleybridge case, 1 O’M. & H. 66.
In the Nottingham case, 1 O’M. & H. 245 violent and tumultuous pro-ceedings took place at the election—gangs of men armed with sticks hiredon behalf of one of the candidates created alarm which had some influenceupon the election and the windows of dwellings were smashed by themob but it was held that no such case of general riot prevailed as wouldmake the election altogether void on that account. See also North Louth6 O’M. & H. 124.
A mere casual affray or accidental disturbance, if from its extent notcalculated to overawe the electors cannot be considered as affecting thefreedom of election—North Meath & East Clare, Rogers Vol. 2, p. 341.
Rioting, to avoid an election, must be such that a man of ordinarynerve would be prevented by it from voting. Nottingham case, 1 O’M. &D- 245. The evidence that voters were prevented from registering theirvotes is very meagre.Cur. ^ vuU_
1 L. R. IO C. P. at 743.
HEARNE J.—Piyadasa v. Goonesinha.
September 3, 1941. Hearne J.—
An application was made to this Court for a mandate in the nature of awrit of quo warranto to oust the respondent, Mr. A. E. Goonesinha,from the office of Municipal Member for Maradana South Ward ofthe Municipality of Colombo. A rule nisi was granted and, after hearinglegal objections to the grant of the rule, Soertsz J. ordered an inquiryinto the question of whether the respondent’s election had been procuredby general undue influence and general bribery. No witnesses werecalled to support the latter charge.
The evidence adduced by the petitioner related to alleged activitieson the part of the respondent’s supporters before polling day, December14, 1940, and during that day.
The incidents that are said to have taken place before December 14fall under three main heads.
Attempts to wreck meetings had in support of the candidature of
Dr. A. P. de Zoysa, the defeated candidate.
Attempts to intimidate voters in their houses.
Looting of boutiques displaying the white flag of Dr. de Zoysa.
The evidence in regard to (a) is meagre.
In regard to (b) I am satisfied'that the charge has been conclusivelyestablished in two specific instances.
Mrs. Case had previously been a supporter of the respondent.Her evidence was to the effect that, prior to the present election, she hadpromised to vote for Dr. de Zoysa and had received a white card fromhim : that “ men of the Labour Party ” called at her house on December13 and tried to induce her to part with her white card and to acceptin its place a red one, in order that she might vote for the respondent :and finally that, when she refused, she was abused in most indecentlanguage. The suggestion was made that the witness was actingmaliciously because her appeals for financial help to the respondent hadbeen refused. This, however, I do not accept. She is a woman who isearning her living in humble circumstances but she appeared to bestraightforward and her evidence was convincing.
Krishna Kutty is the president of Colombo Branch No. 5 of the^Malayalee Mahajana Sabha.^ In his evidence he stated that 10 or 15
men came to the boarding house which he manages in Forbes road andinformed him that all Malayalees, who voted for Dr. de Zoysa, would bekilled. Krishna Kutty did in fact go to the poll and he did not make acomplaint at any police station after the alleged threats had been uttered.Much has been made of these two circumstances. But his evidence hadthe ring of truth and I accept it without reserve.
In regard to (c) there is a mass of credible evidence that on December12,a preconceived attack was made on the boutiques of Malayalees inForbes road and that bottles, coconuts and other articles, capable ofbeing used as missiles,^/were looted and thrown into the road whereDr. de Zoysa had an election office. There is no doubt that the miscreantshad the object of alarming the Mai ay alee community any deterring itsmembers who, there is every reason to think, were solidly behind
HE ARNE J.—Piyadasa v. Goonesinha.
Dr. de Zoysa, from going to the poll. The respondent admitted that theyare opposed to him on political grounds and the boutique-keepers saidthat they were denounced as “ Kochchi Zoysa’s men. ”
I have, advisedly, mentioned in bare outline the incidents, prior toDecember 14, which were calculated to prevent and did, in my opinion,prevent a free and fair exercise of the franchise : for, independently ofwhat had previously occurred, the happenings on the day of the electionitself were such as to make it an utter sham, a mere travesty of thatfreedom of choice which is essential to the validity of an election.
Polling took place at St. Joseph’s College. Arrangements were madefor the voters to enter by one of the gates of the college and to approachthe polling booth by a road in the form of a semi,circle. It was flankedon its left by a row of sheds and a tent where Dr. de Zoysa had his head-quarters. On the right was the playing field on which the respondenthad pitched his tents close to the roadway opposite the booth.
The polling station consisted of two sections, one for men and theother for women. To each section there were two entrances whichconverged to form a single entrance, so that the approach to each of thetwo sections, viewed from the road in front of the booth, presented theappearance of a large inverted Y. It had originally been intended,in order to regulate the passage of voters, to place policemen at thepoints of access from the roadway to the arms of the two Y’s and alsoat the points of junction of the arms. It was, however, only at thelatter points that control was exercised and, as will appear, this was onlyfor a time.
The voters did not proceed direct to the polling booth. For thepurpose of assisting the election officers, they first visited the head-quarters of the two candidates where they received cards, Dr. de Zoysa’ssupporters white cards and the respondent’s red ones. The consequencewas that the voters, on receipt of their identification cards, met in frontof the booth, mingled and besieged the entrances. The barricadesbetween the entrances and on either side of them were in danger of beingswept away. It was at this stage that the police abandoned the entrancesto their fate and concentrated on preventing the voters trespassingbeyond the barricades. In the particular task they set themselves theysucceeded. I do not criticise the arrangements. That is not part ofmy function, but it is necessary to take note of the conditions whichprevailed. The net result was that the flow of voters into the entranceswas, at an early stage, left uncontrolled.
Many of the respondent’s supporters had arrived in the grounds ofSt. Joseph’s College long before Dr. de Zoysa’s supporters and had takenup positions outside and, for a time, within the entrances. There can beno doubt that they had the right to enter the polling booth before thelate arrivals. If they had done so and had then left by the “ out ” gate,no legitimate complaint could possibly have been made. The trouble,however, was that included in the crowd opposite the entrances was abody of the respondent’s partisans—gang would be the more appropriateword—who made it their business to annoy, insult and intimidate thosewho had come to vote for Dr. de Zoysa, and even to impede them in theirefforts to enter the polling station.
HEARNE J.—Piyadasa v. Goonesinha.
Counsel for the respondent sought to make light of the revoltingobscenities that were hurled at those who came with white cards by sayingthat they formed part of the ordinary language of the street corner inCeylon : while the respondent himself, in the teeth of police evidenceinsisted that the crowd was under control.
Apart from their individual experiences to which nine voters testified,
I had the advantage of hearing the evidence of several witnesses whoseindependence and integrity were unchallenged. Inspector Jayatillekesaid that the “ police had no chance at all with the crowd ” andMr. Baker emphatically described it as “ disorderly ”. Miss Rowan saidthat the crowd showed a determination not to let any one pass, that thewomen she brought to vote for Dr. de Zoysa were pushed, that they werefrightened by men “ who were jumping about like devil dancers ” and thatsome of them, in consequence, returned home without recording theirvotes. Mrs. Bartlam said that voters who came with red badges wereleft alone; while those who wore white rosettes were not only molestedand pushed but were refused entrance by red jacketed women. Thesewomen were so obstreperous that they appeared to her to be under theinflunce of drink. Mr. Tranchell, an Ayurvedic Physician (hisimpartiality was attacked) said that he recognized amongst themprostitutes from the streets. When Mrs. Bartlam visited the houses ofvoters they refused to accompany her to the poll (Wimaladasa, the boywho was stabbed, had the same experience) and on her return to thegrounds of St. Joseph’s College she found the same “ stationary ” crowd infront of the booth, pursuing “ the same methods and tactics ”.
I stress the word “ stationary ” for, in my opinion, several of thewomen in red jackets and of the men in red shirts were not voters at all.On the contrary they were a picked body of non-voters who stationedthemselves at the entrance and whose prearranged function it was toharass, intimidate and obstruct.
In view of the overwhelming evidence against the women in red,the respondent- took on himself the responsibility of saying that therewere only 3 or 4 such women and that whenever he saw them there wasnothing in their behaviour of which complaint could be made ; againstthis there is the evidence of Dr. Nadarajah, the Chief Presiding Officerand Mr. Baker, the Superintendent of Police. Dr. Nadarajah saw severalwomen in red jackets “ in the front of the crowd ” who were jeering,shouting and creating a disturbance. He noticed one of them pushingvoters away from the entrance to the women’s section and removed her.Speaking generally he said that the “ people in red were aggressive. I.did not see any person wearing white colours behaving in this way.There were complaints about voters not being able to come in. Thecomplaints made to me were. against the. people wearing fed Thewitness spoke with restraint and is, in my opinion, thoroughly reliable.’Mr. Baker said that the “women in red were the most aggressive in thecrowd ” and described how, at one time, they all but invaded Dr. deZoysa’s tent.
The respondent admitted that several voters left and that the presenceof a large number of persons in red was a prominent feature of the election
HEARNE J.—Piyadasa v. Goonesmha.
but, speaking of the men, he refused to admit that there were more thanfour of them who belonged to his red shirted Volunteer Corps. ThisCorps is admittedly composed in part of habitual criminals and ex-convicts convicted of offences of violence. But Mr. Cader, one of therespondent’s witness, was certain that there were forty of thesevolunteers on duty. They were, undoubtedly, with the red Amazons,the backbone of the “ stationary ” crowd. The respondent’s divisionof 40 by 10 is not a little significant.
Shortly after 1 o’clock Mr. Baker noticed that stones were beingthrown. His attention w'as first directed “ to the people in the centre ofthe ground ”, in the vicinity of the respondent’s tent, but this in itself isnot conclusive that the stone throwing started there nor was it claimedto be. Witnesses for the petitioner, however, stated that stones camefrom the direction of the respondent’s tents as well as from behind theboundary wall of St. Joseph’s College at the back of Dr. de Zoysa’s tents,and that the whites then retaliated. This I believe. A witness, Mr. A. J.A. Cader, called by the respondent, who described himself as the Managerof the Ceylon Mercantile Agency, Ltd., made a sorry attempt to accountfor the latter. He said he had seen six or seven persons throwing stoneswhose attire suggested that they were sympathisers, not with therespondent, but with Dr. de Zoysa. When he “ saw ” them they wereapparently, like marionettes, suspended in the air, half concealed by atwelver-foot wall. He did not mention this phenomenon to anybodyfor six months ! It is a piece of palpable, impudent perjury. Dealingwith the stone throwing in his affidavit, all that the respondent said wasthis. “ I concede there were two or three minor incidents. One suchincident was the stoning of a lady supporter of mine, Mrs. I. G. S. de Silva,who is a relative of the defeated candidate. As a result of the stoninga row took place during my absence at lunch but it was quelled immedi-ately. ” Dr. de Zoysa denied that Mrs. de Silva was related to him andalthough an affidavit of hers was filed, she lacked the courage to enter thewitness box or the respondent lacked the courage to invite her to do so.
“ A minor incident ” he called it. The situation was so alarming thatMr. Baker sent for a party of police from the depot which was employed“ to clear the crowd in the central portion of the grounds three or fourtimes in the afternoon ”. It was a menacing, ill-humoured crowd whichconsisted mainly of the respondent’s supporters. Many of them,Mr. Baker thought, were non-voters. The number of non-voters whoattended the election may be gauged by the fact that, while 3,336 out ofan electorate of 4,854 polled, Inspector Jayatilleke estimated that at 11 a.m.there were.about 5,000 persons in the grounds of the College, while anotherwitness remarked that, in the afternoon, “ half Colombo appeared to bethere ”.
I do not doubt the veracity of certain respectable witnesses called •by the respondent. Their experiences, fortunately for them, were happyand, if it was known that they had come to vote for the respondent,they were not likely to be otherwise- But it is my opinion that InspectorRajendra, called by the respondent, was dishonest in that he deliberatelysuppressed the truth.
There was personation on a very extensive scale. The Chief PresidingOfficer estimated that three hundred challenges were upheld. Mr. de Jong,
The Public Trustee v. Walles.-
one of the respondent’s witnesses, and his Agent at the election,admitted that more reds personated whites than vice versa. The ChiefPresiding Officer said that they constituted 75 to 80 per cent, of thepersons who were excluded. Mr. F. A. de Silva, one of the sub-presidingofficers, who was not anxious to help the petitioner and who was in somerespects not a candid witness was constrained to admit that severalwould-be personators- could not even give the names and addresses ofthose whom they attempted to personate, and that they werepredominantly “ reds ”.
Many other matters, were canvassed. Counsel for the respondentseized on a chance remark made by a police witness about “ Congress ” Nto suggest that Mr. Givendrasinghe was responsible for the disturbancesat the election. It is only fair to say that there is not a shred of evidenceto support the suggestion. It is unfortunate that this should havehappened. The evidence which the respondent was subsequentlyinvited to give regarding Mr. Givendrasinghe in the course of which heput his own character in issue, made much of the former’s cross examina-tion, which I should otherwise have ruled out, relevant.
But I do not propose to review any more of the evidence. I have saidenough to indicate that in my opinion the election result cannot beallowed to stand. The right of a voter to go to the poll without molesta-tion or fear of molestation was violated in a most determined and-unscrupulous way. I am satisfied that there was no real electing by theconstituency at all, in the sense that it had not “ a free and fair opportunityof electing the candidate which the majority might have preferred ”.
The rule nisi will be made absolute with costs to the petitioner. Iformally declare the election to be void.
Rule made absolute,
PIYADASA v. GOONESINHA