010-NLR-NLR-V-73-R.-L.-JAYASENA-Appellant-and-T.-B.-ILLANGARATNE-Respondent.pdf
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Jayasena r. lllangaratnt
1969 Present: Sirimane, Weeramantry and Wijayatilake, JJ.
R. L. JAYASENA. Appellant-,and T.B. ILLANGARATNE, Respondent
Election Petition Appeal Mo. 4 of 19CS—ElectoralDistrict No. 17 (Kolonnatca)
Parliamentary election—Election • petition appeal—“ Point of law"—Agency—Xetc* pci per—False statements matte by it about a candidate's /xrsonal characterand conduct—Allegation that the newspaper jcti* agent of opposing candidate—Quantum of evidence—Agency must be proved beyond reasonable doubt—Particulars filed in election cases—Ilcquircmcnt that they should be. precise.
Section 82 (a) of the Ceylon (Parliamentary Elections) Order in Councilprovides that an appeal against the determination or an Election Judge liesonly on a question of law. In such cases on Appeal Court will not interfere (a)unless inferences have been drawn on a consideration of inadmissible evidence,or after excluding admissible evidence, or (ft) if the inferences are unsupportedby legal evidence, and (r) if the inferences arc not rationally possible from thoevidence, or nro perverse.
Where a newspaper published false statements about the personal (as distinctfrom political) character and conduct of a candidate in a Parliamentaryelection—
Held, that the newspaper (as represented by its Editor, Printer and Publisher)was not an agent of an opposing candidate if the evidence allowed that thenewspaper, while it actively supported the opposing candidate, was notpublished for the solo purpose of supporting tho opposing candidate's politicalparty at elections. The newspapor could not bo regarded as agent of theopposing candidate even if its Editor was a prominent member of the partywhich supported the opposing candidate and hod been invited to speak atmeetings in support of that candidate. Agency in election law has to bo provedbeyond reasonable doubt.
Particulars which a party is required to file in an election petition tako thoplace of n chargo sheet- or an indictment in a criminal case and must boaccurate and preciseso as to leavo tho other party in no doubt ns to tho chargesho has to meet. A petitioner should not be permitted to roly at the end of thocaso on some item of cvidcnco elicited, for example, in the cross-examinationof a witness, to put forward n caso based on a chargo different from that set outin tho Particulars. In such a caso there must bo an application to Court toamended tho Particulars.
JELECTION Petition Appeal No. 4 of 190S—Electoral District No. 17(Kolonnawa).
O. Ranganathan, Q.C., with P. Navttralnarajah, Q.C., B. J. Fernando,Mark Fernando, R. Gunaralna, Miss S. Chinniuh, C. Sandarasagara and
Chandrahasan, for the petitioner-appellant.
£>. Nadesan, Q.C., with E. R. S. R. Coomarasua my, Nihal Jayawickra ma,S. S. Sahabandu, Dharmasiri Senanayake and S. C. B. Walgatnpaya, forthe respondent.
Cur. adv. vult.
36SI RIM A NTS, —-layasenn v. lllangaratnr
August 7, 1909. SlRIMANK, J.—
The respondent was elected aMembcrofParliainrntfor theKolonnawaElectorate at a by-election held on 2Sth February, 1967.
A petition challenging his election on grounds of bribery, undueinfluence and publication of false statements was dismissed by theElection Judge, and the petitioner has appealed.
The decision depended largely on findings of fact, and the main groundurged in appeal was that the learned Trial Judge was wrong in holdingthat the petitioner had failed to establish that a newspaper called the" Attha ” was the agent of the respondent.
An appeal against the determination of an Election Judge lies only ona question of law (Vide section. S2 (a) of the Ceylon (ParliamentaryElectrons) Order in Council, Chapter 3S1). In such cases, as pointed outin Mahawilhana v. Commissioner of Inland Bevenve 1 an Appeal Courtwill not interfere unless—
inferences have been drawn on a consideration of inadmissibleevidence, or after excluding admissible evidence, or'(6) if the inferences are unsupported by legal evidence, and
(c) if the inferences are not rationally possible from the evidence, orare perverse.
The newspaper ‘‘ Attha ” had published certain statements, which, itwas submitted, were false and related to the personal character andconduct of one of the opposing candidates—one Mrs. KusumawathieGunawardene. These statements were referred to in the argument asitems 2, 3 and 8, as they had been so numbered in the Particulars relatingto false statements filed before trial.
Item No. 2 is an article published in this newspaper which stated thatone Mrs. Vivienne Goonewardene (an. agent of the respondent) had saidin a speech made at a meeting in support of the respondent’s candidature,that the opposing candidate dominated her husband—(" ho dances tothe drum beat played by aunt Kusuma;”).
Item No. 3 is an article published in this paper that Mr. Philip Guna-wardene (the husband of the opposing candidate) a Minister at the timeof the by-election, was giving jobs' to the voters of the KolonnawaElectorate in various departments under his Ministry. It was allegedthat the jobs were granted at an “ Employment Exchange ” in the houseof the candidate and her husband.
Item No. 8 is a publication in this newspaper alleging that Mis. VivienneGoonewardene referred to above, who is said to be a niece of Mr. PhilipGunawardene, had stated that her uncle and aunt were doing menialwork (“ working for wages ”, according to one translation) for anotherpolitical party—the United National Party; the allegation being thatthey who were once leaders of a political party were « in an inferiorposition in the political party which they now supported.
1 (1962) 64 N.L. R. 217 ol 223.
SIRIMAXE, J.—Ja’jr.tena v. /llangaratne
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We arc in agreement with the finding of the learned Trial Judge thatthis statement referred to the political and not personal conduct of thecandidate. Wc are then left with the statements referred to in items2 and 3.
Tho learned Trial Judge has held that they were false and that theyreferred to the personal conduct and character of the opposing candidate.It was contended for the respondent that this finding, on the face of thestatements, was incorrect.
In the first statement (item X'o. 2) there is an allegation that thecandidate made her husband dance to the beat of her drum. To saythat a woman subjugates her husband is more than the expression ofan opinion, and I think that the Trial Judge was right in taking thatview.
The second statement (item Xo. 3) at first sight appears to be anallegation against tho candidate’s husband only, but the Trial Judge hastaken the view that the allegation was that the candidate, who lived withher husband, was responsible for jobs being granted by her husband intheir own house to the voters of the Kolonnawa Electorate. Hero again,
I am unable to say that the learned Trial Judge was wrong in taking thisview.
He has further held on the facts that both these statements werefalse. The question then remains whether the newspaper " Attha ”(as represented by its Editor. Printer and Publisher) is an .agentof the respondent ?
It is well known that different newspapers support the candidates putforward by different political parties, or candidates who support thepolicies which they favour. Broadly, some newspapers support thosecandidates who are referred to as “ Right Wing ” candidates, and otherslend their support to the “ Left Wing ” candidates. – A newspaper,undoubtedly, has a right to support a candidate who is pledged to followcertain policies, and such support, by itself, does not make thatnewspaper the candidate’s agent, for no candidate can prevent anewspaper from following a policy of its own.
There was only one case cited to us where it had been contended that anewspaper was the agent for a candidate. That is the case of Gandasingv. Rai (Doabia’s Indian Election Cases, 1935 to 1950, Volume 2, page 94),and in that case the facts were entirely different from the facts here. Itwas proved in that case not only that the newspaper carried extensivepropaganda for the respondent, but that the respondent himself hadpurchased some twenty thousand copies of that newspaper anddistributed them among his voters. In addition, according to thejudgment, there was a good deal of evidence to show that the newspaperwas freely distributed by the respondent’s agents as well.
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81RI MANE, 3.—Jayasena c. lllanqaraine
.Generally, candidates have no control over articles or news items thata newspaper chooses to publish. Our attention was drawn to variousnews items, editorials, advertisements, etc., published by the *' Attha ”which strongly supported the respondent's candidature. The respondenthimself had sent a notification to this paper exhorting his voters not to.contravene certain election laws. There was also a notice setting outthe datee and the venues of meetings in support of the respondent.
The learned Trial .Judge lias carefully considered all these and otherpublications and reached the conclusion—
that the “ Alt ha " is not published fort lie sole purpose of supportingthe left candidates at elections, and
that it “actively supported the respondent for election to theKolonnawa 6eat
There was another item of evidence in relation to this question whichthe Judge has considered. One Ratnaweera, described as a powerfulspeaker, had spoken regularly at meetings in support of the respondent’scandidature. There was also evidence that he was a Honorary AdvisoryEditor of the “ Attha ”—though he did no editing as far as the witnesswho gave this evidence was aware. The learned Trial Judge consideredthe question of agency on the assumption that Ratnaweera was theEditor.
There can be no doubt that Ratnaweera had been invited to speak atmeetings in support of the respondent. He was, therefore, an agent ofthe respondent for that purpose. His authority would not extend tomaking false statements in his speeches. But, agency in election lawhas a wider meaning than in the ordinary law relating to principal andagent. If, in the course of such a speech, Ratnaweera had made a falsestatement concerning the opposing candidate, without the knowledge oracquiescence of the respondent, j-et the respondent could be held liable.But, he does not necessarily act as respondent's agent, when he doessomething which is totally unconnected with the purpose for which hewas employed. Though the scope is wider, there can be limited agencyin election law ; e.g., in the Harwich case1 Lush, J. said, “ The relationbetween a candidate and a person whom he constitutes his agent is muchmore intimate than that which subsists between an ordinary principaland agent. The closest analogy is that of a sheriff and his under-sheriffand bailiffs. For, as regards the seat, the candidate is responsible for allthe misdeeds of his agent committed within the scope of his authority,although they were done against his express directions, and even indefiance of them.” He went on to say, “ But if he was employed oraccepted to canvass a particular class, as if a master were asked tocanvass his workmen, and he went out of his way and bribed a personwho was not his workman, the candidate would not be responsible,because this was not within the scope of his authority. '
. 1 3 O’M. <b H., p. 69.
SIRIMAVE, J.—Jnjostna r. lllangaratnc
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In the Salisbury case 1 Hawkins, J. held that n candidate would not beresponsible for bribing of a voter behind his back by a person whoaccompanies him to canvass voters. The learned Judge said, “Surely,. taking a man to point out voters, and to influence them, if you will, inthe candidate’s presence, is not conclusive evidence of an employment ofthat person to go behind the candidate's hack and bribe them.”
liven if Ratnaweera, on the assumption that he was the Editor, couldbe held responsible in an action for defamation, (for example) for thepublication of these two statements in the !* Attha ", the respondent, ininy opinion, could not be held responsible in any way on the basis thatRatnaweera was his agent.
Rut, on this point, the finding of fact by the learned Trial Judge isthat the evidence placed before him “tends to show that Ratnaweerawould not have dealt with matters like the impugned article and thereport of the meeting.” He further held that on the evidence led thepetitioner had, “ failed to establish that Ratnaweera was concerned inthe making and publishing of the impugned article and the report of themeeting.”
It was also urged for the appellant that Ratnaweera was a prominentmember of the Communist Party which supported the respondent. TheCommunist Party has thousands of members (the respondent himself wasnot a member of that party). Every member of a political party whichsupports a candidate docs not by virtue of his membership become anagent of the candidate to whom his party extends its support.
The observation of Nagalingain, J. in Don- Philip v. lllangaratne * thata political party and its active members were constituted agents of thecandidate which that party supported, would'apply only where the facts(as found by the Judge in that case) showed such an intimate relationshipbetween the candidate and the party or its active, members that theinference of agency was irresistible.
The passage from the judgment in the Beudley case,3 cited in support,of the contention that an active member of a party which supported acandidate was his .agent, dealt with an entirely different set of facts. Inthat case it was proved that an association had been formed to promotethe candidature of the respondent. The respondent’s agent attendedthe meetings of the association, and supplied its Minute Book at therespondent’s expense. He used a register in common with the associationwhich contained an account of favourable, adverse and doubtful voters.The Secretary of the association was a paid clerk of the respondent andworked in a room of his agent’s house set apart for the purposes of theelection. It was further proved that one Ncllist,- a leading member ofthe association, undertook to. procure votc6 of persons over whom he waslikely to have influence, and that he was actively engaged on the pollingday in taking members to the poll. It was in these circumstances thatit was held that “ To say that the candidate is not responsible for any* 3 O'M. <0 //., 131.5 (1519) SI X. L. ft. SC1 at 570.* 3 O'M. <£ H., 145.
to
SIRIMAXE,—Jayascna c. Illattgarainc
corrupt acts done by an active member of stick an association would berepealing the Corrupt Practices Act, and sanctioning a most effectivesystem of corruption."
The law relating to agency in election matters is clearly set out in the' oft quoted passage in the judgment of Channel!, J. in the Great Yarmouthcase 1 •* The law of agency1 in election matters has been very fully broughtbefore us, and one thing which is quite clear—not only upon this questionof agency, but upon some of the other questions with which we have to. deal—is that the ablest Judges have always said that you cannot laydown definite rules applicable to all cases. But there are principles, andthe substance of the principle of agency is that if a man is employed atan election to get you votes, or if, without being employed, he isauthorised to get you votes, or if, although neither employed norauthorised, he does to your knowledge get you votes, and you acceptwhat he haB done and adopt it. then he becomes a person for whoseacts you are responsible in the sense that, if his acts have been of anillegal character, you cannot retain the benefit which those illegal actshave helped to procure for you.”
These principles must bo applied to the facts of each aase, and those 'facts have to be ascertained by the Trial Judge.
One has also to remember that agency in election law has to be provedbeyond reasonable doubt. As Meller, J. observed in the Bolton case 2,
“ There is nothing more difficult or more delicate than the question ofagency, but if there be evidence which might satisfy a Judge, and if hebe conscientiously satisfied that the man was employed to canvass, thenit must be held that his acts bind liis principal.”
Dealing with the evidence relating to agency Blackburn, J. in theBewdUy case 3 said, “ I take it that in each case the Judge must bringcommon sense to bear upon it, and satisfy himself whether it is sufficient. or not. I do not think that such a question as that would turnupon minute particulars as to what particular words were used orwhat particular thing was done, but upon the common-sense broadview of it."
The learned Trial Judge has very carefully considered the variouspublications in the newspaper and all the other evidence relating to thequestion of agency placed before him. He has addressed his mind to theJaw, and, if I may say so with respect, correctly applied the law to thefacts as found by him. He has reached the conclusion that the petitionerhas failed to establish that the newspaper was the agent of the respondent.
lean see no ground for interfering with this finding.
I pass on to the other submission made on behalf of the appellant, viz.,that there had been an “ adoption " of a false statement (item No. 2) bythe respondent’s agent.
– 1 5 O'M. J B., p. 178.. * 2 O'M. tb B., at p. 141.
* 1 O'M. <!; B., at p. 18.
SIR1MANE, J.—Jaynurna V. lllangaratne
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It was argued that, quite apart from the question whether or not the“ Attha” was the agent of the respondent, this news item was "adopted"by Mrs. Vivienne Goonewardenc, the agent of the respondent.
I would like to say a word here about Particulars which a party isrequired to file in election cases. They must be accurate and precise soas to leave the other party in no doubt as to the charges he has to meet.The Particulars, in an election petition, take the place of a charge sheetor an indictment in a criminal case. A petitioner should not. in my view,be permitted to rely at the end of the case on 6omc item of evidenceelicited, e.g., in the cross-examination of a witness, to put forward a casebased on a charge different from that set out in the Particulars. In sucha case there must be an application to Court to amend the Particulars.
With reference to item No. 2, the Particulars dated 15.10.67 statethat the person who committed the corrupt practice was the newspaper(represented by the Editor, Printer and Publisher) and that the publi-cation was made by the paper as the agent of the respondent, actiug withthe respondent’s knowledge and consent. The amended Particularsfiled subsequently on 10.11.67 make no further reference to itemNo. 2.
It has been contended both here and at the trial that Mrs. VivienneGooncwardcne by her conduct, on some later date adopted the statement(item No. 2) published in the " Attha ”. Though this allegation is notset out in the Particulars filed, I have carefully considered the submissionmade on behalf of the appellant, but I am unable to agree with it.
The evidence which the learned Judge has accepted is, that as soon asthe “ Attha ” published this false statement attributing it to Mrs. VivienneGoonewardenc, she got angry and contacted the Editor—one Siriwartlene—and demanded that- a contradiction should be published.
Newspapers arc notoriously slow to admit that they are guilty of pub-lishing incorrect news. In this instance Mrs. Vivienne Goonewardenc, inorder to ensure that a contradiction would be published, agreed to itbeing done in this manner, viz., the paper was to carry a news item, thatin a speech she had made on a subsequent date at- a different place shehad denied the statement attributed to her in the earlier report, blit saidthat some matters referred to by other speakers appeared to have beenmixed up in her speech. I cannot agree that this amounts to an‘adoption " of the statement that she has expressly denied. On thecontrary it appears to be a repudiation of that statement.
The learned Judge having gone info this question very fully .expressedhimself as follows :—
" It is in view of this agreement that Mr. Navayatnarajah made thesubmission that Mrs. Vivienne Goonewardenc had ratified and adoptedthe earlier report, subject to an alteration. I do not think the fact thatMrs. Gooncwardcne could not- obtain a contradiction from the “Attha"
Lo i/i> v. Em man net
■io
except by resorting to tin's subterfuge means that she adopted orratified the fake statement which had been made in the report of theproceedings (P35) and thus retrospectively authorised its publicationby the “ Attha
I respectfully agree with that view, and this submission made onbehalf of the appellant must also fail.
The appeal is dismissed and the determination of the Election Judge isconfirmed. The respondent will bo entitled to his taxed costs both hereand below.
Let the certificate and the report of the Election Judge be transmittedto the Governor-General in terms of section S2 (c) of Chapter 3S1.
Weekam-antbv, J.—I agree.
Wijayatilake, J.—I agree.
Appc/jl dismissed.