068-NLR-NLR-V-56-S.-J.-V.-CHELVANAYAKAM-Petitioner-and-S.-NATESAN-Respondent.pdf
DE SILVA J.—Chelvanayakam v. Natesan
271
1954Present : de Silva J.S. J, V. CHELVANAYAKAM, Petitioner, and S. NATESAN,Respondent.
Election Petition No. 17 of 1952, Kankesanturai
Parliamentary election—Agency—Principles applicable—Proof of agency—Election
offences—Degree of proof required.
In Partiamentary elections the relationship between a candidate and hisagent is similar to that between master and servant. A candidate is liable forthe oorrupt acts of his agent, provided they were done within the scope of hisauthority, even though the candidate may have 'taken the precaution ofwarning the agent against such acts.
Agenoy may arise not only by express appointment but also may be impliedfrom circumstances. But before the Court can infer agenoy from surroundingcircumstances it must be satisfied that that is the only inference which can bedrawn Grom the facts proved. The mere non-interference by a.candidate withpersons who on their own work for him is not sufficient to saddle him with theconsequences of the corrupt acts of whioh he was ignorant.
Election offences must be Btrictly proved. The degree of proof requiredis the same as in a criminal charge.
Election petition, Kankesanturai.
0
S. Jayawickreme, with T. K. Curtis, G. T. Samaraioickreme, NevilleEamarakoon, K. Rajaratnam, G. Barr-Kumarakulasingham and G.Catulappa, for the petitioner.
G. Wikramanayake, Q.C., with N. Nadarasa, T. W. Rajaratnamand S. Pasupathy, for the respondent.
Cur. adv. vult.
July 3, 1954. de Silva J.—
In these proceedings Mr. Chelvanayakam, the Petitioner, seeks to havethe election of Mr. Natesan, the Respondent, as Member of Parliament forthe Kankesanturai constituency at the general election held in May,1952, declared void. The nomination of candidates was on April 28,1952, and the election was held on May 30, 1952. The counting of votesand the declaration of the results took place on the following day. Itwas found that the Respondent had secured 15,337 votes as against11,571 votes obtained by the Petitioner. The Respondent was, therefore,declarod elected by a majority of 3,666 votes. The total number ofvoters in the electorate was 38,434. The result of the election waspublished in tho Government Gazette No. 10,405 dated 2nd Juno, 1952.The grounds on which the election, is sought to be declared void are setout in paragraphs 3, 4, 5, 6 and 7 of the amended petition dated October24, 1952, filed by the Petitioner. These paragraphs read as follows :“ 3. Your Petitioner states that before and during the said electiontho said Respondent his agents and/or other persons with his know-ledge and/or consent did make and publish false statements of fact
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DK SILVA J.—Chelvanayakam v. Nalesan
in relation to the personal character and conduct of the Petitionerfor the purpose of affecting the return of the Petitioner and thatthereby a corrupt practice has been committed within the meaning ofSection 68 (1) {d) of the Ceylon (Parliamentary Elections) Order inCouncil 1946.
Your Petitioner further states that the Respondent himselfills agents and/or other persons with his knowledge and/or consentdid print publish distribute and/or post up or cause to be printed pub-lished distributed and/or posted up advertisements hand-bills placardsand posters which referred to the said election and which did not bearupon their face the names and addresses of their printers and/orpublishers and thereby committed a corrupt practice within thomeaning of Section 58 (1) (c) of the Ceylon (Parliamentary Elections)Order in Council 1946.
Your Petitioner further states that the corrupt practice of“ undue influence ” as defined by Section 66 of the Ceylon (Parlia-mentary Elections) Order in Council 1946 was committed in connect ionwith the said election by the Respondent, his agents and/or by otherpersons with his knowledge and/or consent.
Your Petitioner further states that the Respondent himself hisagents and other persons with his knowledge and/or consent did hireand/or borrow and/or use for the purpose of conveyance of electorsto and from the poll vehicles which they knew that the owners thereofwere prohibited by Sub-Section 3 of Section 67 of the Ceylon (Parlia-mentary Elections) Order in Council 1946 from letting lending oremploying for the said purpose and thereby committed an illogalpractice in connection w'ith the said election.
The Petitioner further states that the Respondent abovenamedwas guilty of a corrupt practice under Article 58 (1) (/) of the Ceylon(Parliamentary Elections) Order in council in that being a candidateand his own election agent he knowingly made declaration as to theelection expenses required by Section 70 falsely. ”
Out of the 5 charges set out in the amended petition, some of the parti-culars of the charge set out in paragraph 6 relating to tho use of prohi-bited vehicles were struck out, of mutual consent of parties, during thecourse of the trial, while the remainder were struck out by order ofCourt as there was not sufficient evidence in support of them. Thetrial, therefore, related to the remaining 4 charges.
A brief survoy of the political history of the Kankesanturai consti-tuency during a period of about 10 years immediately preceding thiselection and the part played by the Petitioner and the Respondent inthe political and the social life of the country, with particular referenceto the Jaffna Peninsula, is helpful in understanding some issues of factwhich arise in this case. [His Lordship then made the proposed survey,and continued :—]
As the question of agency looms large in this case, it is necessary to-consider the principles which govern the law of agency in Parliamentary
DE SILVA J.—Chelvanayakam o. Natesan
273
elections. According to the ordinary law of agency, a person is notliable for the actions of a person whom he has not authorized, or evenfor the acts done outside the scope of the agent’s authority. The eleotionojudges in England considered long ago that the ordinary law of agencywas quite inadequate for the preservation of the purity and the freedomof elections. As democratic form of government is based on the autho-rity of Parliament, it is obvious how necessary it is that the election of mem-bers of that body should be free from fraud and corruption. In order toachieve this object, it became necessary to give an extended meaning tothe ordinary law of agency in the matter of elections, and the Englishelection tribunals unhesitatingly did so. According to this extendedmoaning, a candidate “ is responsible for the act of that agent in commit-ting corruption, though he himself not only did not intend it or authoriseit but even bona fide did his best to hinder it”—Taunton Case1. Inelections the relationship between a candidate and his agent has beenlikened to that existing between the master and servant. A masteris 1 iable for the negligent act of his servant done within the scope of hisemployment, even though he may have taken the precaution of warningthe servant against such negligence. In the Boston Case 3 Grove J.stated, “ but with regard to election law, the matter goos a great dealfarther, because a number of persons are employed for the purpose ofpromoting an election, who are not only not authorized to do corruptacts, but who are expressly enjoined to abstain from doing them, never-theless the law says, that if a man chooses to allow a number of poopleto go about canvassing for him, general^ to support his candidature,to issue placards, to form a committee for his election, and to do thingsof that sort, he must, to use a colloquial expression, take the bad withthe good ”. A candidate, however, is liable for the corrupt acts of hisagent, provided they were done within the scope of his authority. If aperson is an agent of a candidate for a particular transaction only, thecandidate would not be liable if that agent commits a corrupt act quiteunrelated to the work entrusted to liim. If, however, a person woreappointed agent for canvassing generally and in the course of suchcanvassing he were to commit the acts of bribery or treating, the candi-date would bo liable. In the Harwich Case3 Lush J. said, “If a personwere appointed or accepted as agent for canvassing generally, and he woreto bribe or treat any voter, the candidate would lose his seat. Butif he was employed or accepted to canvass a particular class, as if amaster were asked to canvass his workmen, and he went out of his wayand bribed a person who was not his workman, the candidate would notbo responsible, l>ecause this was not within the scope of his authority ”.
Agency may arise by express appointment or it may bo implied fromcircumstances. In the instant case there are no express appointmentsof agents. The Petitioner seeks to establish agency of certain personsfrom the surrounding circumstances. In the absence of express appoint-ments as agents, the burden is cast on the Court to decide on circumstan-tial evidence whether or not the relationship between the candidate and8 another amounts to agency according to election law. If an act or a1 1 O: M. ds H. 181, at p. 182.* 2 O.’ M. db H. 161, at p. 167.
1 3 0.’ M. db H. 61, at p. 70.
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DK SILVA J.— Chelvanayakam v. Natesan
series of acts of a person relating to tho election points to the irresistibleconclusion that such person was engaged in the promotion of the candi-dature of tho respondent to the latter’s knowledge, or if the respondentsubsequently having been made aware of such services accepted tho saipe,tho Court must not hesitate to draw the inference that tho relationshipbetween tho parties amounted to agency. However, that evidencebeing circumstantial, the Court must be satisfied that that is the onlyinference which can be drawn from the facts proved. It has been heldthat tho mere non-interference by a candidate with persons who on theirown work for him is not sufficient to saddle him with the consequencesof the corrupt acts of which ho was ignorant—Wigan Case 1.
While it is true that tho penal provisions of election law should berigorously enforced in tho public interest, it is equally essential that thoelection offences, the consequences of which are obviously very seriousand far reaching, must be strictly proved. The degree of proof requiredis tho same as in a criminal charge. In dealing with this matter, MartinB. said in tho Westminster Case 2—“ The law is a stringent law, a harshlaw, a hard law; it makes a man responsible who has directly forbidden,a thing to bo done, when that thing is done by a subordinate agent.It is in point of fact making tho relation between a candidate and hisagent tho relation of master and servant, and not the relation of principaland agent. But I think I am justified when I am about to apply sucha law in requiring to be satisfied beyond all reasonable doubt that theact of bribery was done, and that unless the proof is strong and cogent—I should say very strong and very cogent—it ought not to affect the scatof an honest and well intentioned man by the act of a third personIn tho case of Aluivihare v. Nanayakkara3 Basnayako J. stated, “Thestandard of proof required of a petitioner must thereforo be higher thanthat required in a civil case, whero a party must provo his case by apreponderance of evidence, and not lower than that required in the caseof a criminal charge, viz., proof beyond reasonable doubt ”.
The concept of agency in election law is not capable of being preciselyencompassed, within the limits of a definition. Even if it was possibleto do so, English Courts have deliberately refrained from doing it.In fact one Judgo went so far as to say that it was dangerous to hazarda definition of agency in election law as unscrupulous candidates mightdoviso a mothod of concealing illegal practices. Each case must lx:decided on tho set of facts on which it is sought to establish agency.It is in tho light of the principles referred to above that I proceed toconsider the evidence on the various charges sought to bo established.
I shall now proceed to deal with the specific charges in tho order theyappear in the amended election petition. [His Lordship then examinedtho evidence at length and, afte*- holding that none of the charges wasproved, concluded as follows :—]
All the charges therefore fail, and I accordingly determine the Resjxm-dont, Mr. S. Natesan, was duly elected as Member for the Kankesnn-turai Electoral District.
e
1 4 O' Af. II. 10.1 J O.' AI. dc II. SS at pages 95 and 96.
3 50 X. L. It. 629 at p. 533.
Simon AppU v. Somawathie
275
I hold that no corrupt or illegal practice which has.to be reported interms of Section 82 of the (Parliamentary Elections) Order Council oflike, as amended by Act No. 19 of 1948, has been proved to have beencommitted.
This lias been a very protracted trial which took 79 days. As manyas 79 witnesses, 63 for the Petitioner and 16 for the Respondent, wereexamined. Although there were only 6 charges in the amended electionpetition, yet under each charge several specific cases of the offenceinvolved in it were disclosed. The expenses incurred by the Respondentin resisting these charges must indeed have been very heavy. TheCounsel’s fees, batta of witnesses, most of whom had to come down fromJaffna, and the cost of obtaining certified copies of documents, transla-tions, &c., must necessarily have involved heavy expenditure. In fixingcosts those matters have to be taken into consideration.
I dismiss the election petition and order the Petitioner to pay as coststo tho Respondent a sum of Rs. 40,000.
Before I conclude, it is my duty to acknowledge the great assistancegiven to the Court by Counsel—seniors and juniors alike—of bothparties who conducted the case with great dignity and uniform courtesy.
Petition dismissed.