SARATH FONSEKA v. MAHINDA RAJAPAKSE AND OTHERS

027-SLLR-SLLR-2010-V-1-SARATH-FONSEKA-v.-MAHINDA-RAJAPAKSE-AND-OTHERS.pdf


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SARATH FONSEKA V. MAHINDA RAJAPAKSE AND OTHERSSUPREME COURTJ. A. N. DE SILVA, C.J.,
DR. SHIRANI A. B AND ARAN AYAKE, J.,
SRIPAVAN, J.,
RATNAYAKE, J., ANDIMAM, J.
S. C. PRESIDENTIAL ELECTION PETITION NO. 1/2010SEPTEMBER 13™, 14™ AND 15™, 2010
Election Petition – Presidential Election – Preliminary Objections -Dismissal in limine-Prayer to the petition misconceived in law -Failure to join necessary parties-Failure tofurnish materialfactsin terms of Section 96(c) of the Presidential Elections Act, No. ISof 1981 – Petition does not conform to the requirement set out inSection 96(d) of Act, No. IS of 1981 – Petition does not set forthfull particulars of any corruption or malpractices the petitionerhad alleged – Jurisdiction to hear a Presidential Election petition- Article 130 of the Constitution – Section 94 of the PresidentialElection Act – Not sought a declaration that the election was void.Maintainability, of the Petition?
The Petitioner, one of the unsuccessful candidates at the PresidentialElection held in 2010, sought to have the election of the candidate, the1*‘ Respondent declared null and void.
When the Petition was taken up for hearing, the several Respondentsinformed Court that they had already filed preliminary objections to themaintainability of the Petition. The Petitioner was granted permissionto file the Petitioner's Statement of Objections at least one week prior tothe hearing of the preliminary objections raised by the Respondents.
When the Petition was taken up again, it was observed that no Statementof Objections was filed by the Petitioner to the preliminary objectionsraised by the Respondents and therefore the Supreme Court proceededto hear the preliminary objections raised by the Respondents. Oral
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submissions were accordingly made by the Counsel in respect of thefollowing preliminary objections;
The reliefs sought in the prayer to the Petition are misconceived inlaw and cannot be granted by Court,
The Petitioner has failed to join necessary parties as Respondents,
The Petitioner has failed to furnish material facts in terms ofSection 96(c) of the Presidential Elections Act,'No. 15 of 1981, and
The Petition does not conform to the requirements of Section 96(d)of Act No. 15 of 1981, in that, it does not set forth full particularsof any corrupt or malpractices the Petitioner has alleged.
It was also brought to the notice of Court by the learned President’sCounsel for the 1“ Respondent that the Petitioner has not sought adeclaration that the election was void as provided in Section 94(a) of theAct No. 15 of 1981 [Act].
Held
The Supreme Court derives its jurisdiction to hear a PresidentialElection Petition in terms of Article 130 of the Constitution and notfrom Section 91 of the Act.
Per J.A.N. De Silva, C.J. –
“It is well settled that the language of a statute constitutes thedepository or reservoir of the legislative intent and the duty of theCourt is to interpret the words the legislature has used and nottravel outside on a voyage of discovery. Every word of a statuteshould be construed with reference to the context in which it hasbeen enacted.”
Section 94 is clear, unambiguous and specifies the only reliefsthat may be claimed by the Petitioner in an Election Petition. ThePetitioner cannot ask for any other reliefs other than those specifiedin Section 94.
Where the Act makes general provisions in terms of Section 91for the avoidance of election on an election Petition and makes aspecific provision with respect to the reliefs which may be claimed,
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the latter must prevail over the general provision in relation to thedifferent reliefs that a Petitioner could claim.
Section 94(a) is a stand alone section and must be interpretedstrictly in accordance with its plain and natural meaning. Hencethe relief sought by the Petitioner in paragraph (a) of the prayer tothe Petition cannot be granted.
Though the Petitioner has pleaded general intimidation, generaltreating, general bribery and non-compliance with the provisionsunder Section 91 (a) and 91 (b) of the Act in paragraph 7 of thePetition, the Petitioner has failed to seek a declaration that theelection was void. In these circumstances, in the absence of aspecific relief in terms of Section 94(a), the Supreme Court isprecluded from granting a declaration that the election was void.
Section 95 (1) (b) mandates that the Petitioner should join asRespondents to his election Petition, any other candidate orperson against whom allegations of any corrupt or illegal practiceare made in the Petition. By the use of the word “shall”, Section95 is couched in mandatory terms, so that strict compliance withevery letter of the law is necessary.
The failure to add the Sri Lanka Rupavahini Corporation, Sri LankaBroadcasting Corporation, “Lakhanda” and the IndependentTelevision Network as parties to the Petition is a fundamental flawand amounts to non-compliance with Section 95(l)(b) of the Act.
When there are violations as alleged by the Petitioner and thesaid election was not free and fair, all what the Court could do isto declare the election void. As the Petitioner has not prayed forsuch relief, the Court cannot, in law, grant a declaration that thePetitioner be duly elected as the President of Sri Lanka.
A scrutiny of ballots in terms of Section 94 of the Act is possibleonly on the ground of a claim made by an unsuccessful candidatewho had obtained “a majority of the lawful votes” and not “ majorityof the votes”.
Quoting the relevant sections is not a substitute for the mandatoryrequirement contained in Section 96 (c) of the Act to plead materialfacts on which the Petitioner relies.
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Failure to file proper pleadings is fatal to an Election Petition andno amendments of the pleadings are permissible at the stage whenthe matter is taken up for Argument. If a proper Petition is beforeCourt, the Supreme Court may, upon such terms as to costs orotherwise as the Court may deem fit allow the particulars of anycorrupt practice specified in the Petition to be amended or amplifiedin terms of Section 97 of the Act. However, if the pleadings do notdisclose proper reliefs worthy of being tried by Court, pleadingsare liable to be struck off and the Election Petition is liable to bedismissed in limine.
Cases referred to:
Nanayakkara v. Kiriella – (1985) 2 Sri L.R. 391
Gamini Athukorale v. Chandrika Bandaranayake Cumaranatunga ~(2001) 1 Sri L.R. 60
Kobbekaduwa v. Jayawardena – (1983) 1 Sri L.R. 416
Bandaranaike v. Premadasa – (1989) 1 Sri L.R. 240
Wijewardene v. Senanayake – 80 CLW 1
Dhartipakar Madanlal Agarwal v. Shri Rajiv Gandhi – (1987) 3 SCR369
Tamworth – (1861) 1 O 8s H 82
Udhav Singh v. Madhav Rao Scindia – 1977 1 Supreme Court Case
Hari ShankerJain v. Sonia Gandhi – (AIR) 2001 SC 3689
Samant N. Balakrishna etc vs George Fernandez and others – (1869)3 SCR 603.
Jitender Bahdur Singh vs. Krishna Behari – (1969) 2 SCC 433.
V. S. Achuthanandam vs. P. J. Francis and another – (AIR) 19993 SCC 737
Jayasinghe v. Jayakody and others – (1985) 2 Sri L.R. 77
Presidential Election – Preliminary objections
Upul Jayasuriya with Sandamal Rajapakse, Madubshana Ariyadasa
and Sehan Kiimarasinghe for the Petitioner
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D.S. Wijesinghe, P.C. with Nihal Jayamanne, P. C. S.S. Sahabandu P.C.,D.P. Mendis P.C., Patttha Kamarasinghe, P.C., Jayatissa de Costa, P.C.,Upali Senaratne, Sagara Kariyawasam, M.U.M. Ali Sabry, KaushalyaMoMgoda, Chamila Jalagoda and Isuru Somadasa for the 1" Respondent.
Nihal Jayammanne, P.C., with W. Dayaratne, P.C., Chadana Liyanapa-tabendi, Ananda Goonathilake, Champani Padmasekera, Ajith Munas-inghe, Ms. Nurani Amarasinghe, Ms. Uditha KoUure, Dilan de Silva, Ms.Mokshini Jayamanne, Shanthe Herath, Premachandra Epa and Sarath-chandra Liyanage for the 6th Respondent.
S.S. Sahabandu, P.C., with Dr. Jayatissa de Costa, P.C., JayanthaWeerasinghe, P.C., Sankaya Gamage, Saman de Silva, SenerathJayasundara, Hariguptha Rohanadeera, Saliya Mathew and UpaliSamaraweera for the 17th Respondent.
PaUtha Kumarasinghe, P.C., with Sunil Abeyratne, Mayura Gunawansa,Viraj Premasiri, Chinthaka Mendis and Vfran Fernando for the 18thRespondent.
Manohara de Silva, P.C., with Kuvera de Soysa, PaUtha Gamage, RanjithCaldera, Pathmapriya Ranawaka Rasanga Harischandra and LalithGunaratne for the 20th Respondent.
Gamini Marapana, P.C., with Nihal Jayawardena, B. Manawadu,K. Liyanagmage, Manoj Gamage, Manjula Wellage, A. Ariyapperuma,Tissa Gunawardena, Naveen Marapana and Rohana Deshapriyafor the 23rd Respondent.
Kushan de Alwis with Kaushalya Nawaratne and Chamath Fernandofor the 24th Respondent.
Priyantha Jayawardene with Rasika Balasuriya, Shan Senanayake, Ms.Sumana Ariyadasa and Priyani Perera for the 25th Respondent.
S.L. Gunasekara with J.M. Wijayabandara, Lalith Abeysiriwardene,Ajith Prasanna, Ruwan Udawela and Akalanka Ukwatte for the 26thRespondent.
W.P.G. Dep P.C., Solicitor General with Ms. Indika Demuni de Silva,D.S.G., A.J.M.D. Nawaz, D.S.G. and M. Gopallawa, S.S.C. for the 22ndRespondent.
Cur.adv.vult.
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October 29th 2010J.A.N. DB SILVA, CJ
When this petition was taken up on 5th July 2010, severalCounsel appearing for the 1st, 6th, 17th, 18th, 20th, 23rd, 24thand 26th Respondents informed Court that they have alreadyfiled preliminary objections to the maintainability of thepetition. Learned Counsel for the petitioner was grantedpermission to file petitioner’s statement of objections at leastone week prior to the hearing of the said preliminary objections.The Court fixed 13th, 14th, and 15th September 2010 for thehearing of the said preliminary objections.
When the petition was taken up again on 13th September2010, it was observed that no statement of objections werefiled by the petitioner. Learned Counsel for the petitionerinformed Court that the petitioner has only filed a motiondated 13th September 2010 together with an affidavit ofMr. Vijitha Asoka Samararatne, dated 12th September 2010and two registered postal article receipts marked as Z1and Z2. As no objections were filed by the petitioner to thepreliminary objections raised by several Counsel for theRespondents, the Court proceeded to hear the said preliminaryobjections raised by the Respondents. Oral submissions weremade by the Counsel in respect of the following preliminaryobjections:
The reliefs sought in the prayer to the petition aremisconceived in law and cannot be granted by Court;
The petitioner has failed to join necessary parties asRespondents;
The petitioner has failed to furnish material facts in termsof Section 96(c) of the Presidential Elections Act No. 15 of1981; and,
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The petition does not conform to the requirements ofSection 96(d) of Act No. 15 of 1981, in that, it does not setforth full particulars of any corrupt or malpractices, thepetitioner has alleged.
Learned President’s Counsel for the 1st Respondentbrought to the notice of Court that the petitioner has notsought a declaration that the election was void as providedin Section 94(a) of Act No. 15 of 1981 (hereinafter referred toas the “Act”).
Section 94 of the Act provided all or any of the reliefs thatcould be claimed in an election petition:
A declaration that the election is void;
A declaration that the return of the person elected wasundue;
A declaration that any candidate was duly elected andought to have been returned;
Where the office of the President is claimed for an unsuc-cessful candidate on the ground that he had a majority oflawful votes, a scrutiny.
Counsel for the Petitioner and the Counsel for the 10thRespondent sought to argue that Section 91 of the Act mustbe read with Section 94 in order to interpret the reliefs thatcould be claimed by the petitioner in terms of Section 94(a).Both Counsel submitted that the Court assumed jurisdictionto declare the election of the Office of the President void byvirtue of the provisions contained in Section 91. I
I regret that I am unable to agree with this submission.The Supreme Court derives its jurisdiction to hear a
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Presidential Election petition in terms of Article 130 ofthe Constitution and not from Section 91 of the Act. It iswell settled that the language of a statute constitutes thedepository or reservoir of the legislative intent and the dulyof the Court is to interpret the words the legislature has usedand not to travel outside on a voyage of discovery. Every wordof a statute should be construed with reference to the contextin which it has been enacted. The marginal note to Section 94also gives an indication and furnishes a clue to the meaningand purpose of the said Section. Thus, in my view, Section94 is clear, unambiguous and specifies the only reliefs thatmay be claimed by the petitioner in an Election Petition. Thepetitioner cannot ask for any other reliefs other than thosespecified in Section 94 in this petition, the petitioner haschosen not to ask for the relief specified in Section 94(a).However, the Petitioner has asked for the following relief inparagraph (a) of the prayer to the petition, not specified inSection 94:
(a) That Your Lordships’ Court be pleased to determineand declare that the election of the 1st Respondentabove named void.
Where the Act makes general provision in terms ofSection 91 for the avoidance of election on an electionpetition and makes a specific provision with respect to thereliefs which may be claimed, the latter must prevail overthe general provision in relation to the different reliefs that apetitioner could claim. In the case of Nanayakkaravs. Kirielldl Thambiah, J. at 411, made the followingobservations regarding the proceedings in an electionpetition.
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“Election petition proceedings are purely statutoryproceedings, unknown to the common law and, therefore,considerations of equity which guide Courts in dealingwith matters of civil rights and their remedies will haveno place in dealing with election petitions. The statutoryrequirements of Election Law must be strictly observed. ”
Considering the observations made by Thambiah, J. I amunable to agree with the Learned Counsel for the petitionerand the Learned Counsel for the 10th Respondent that therelief sought to in Section 94(a) must be read with Section91 and a liberal interpretation be given to Section 94(a). I amof the view that Section 94(a) is a stand alone section andmust be interpreted strictly in accordance with its plain andnatural meaning. Thus, the Court cannot grant the reliefsought by the petitioner in paragraph (a) of the prayer to thepetition.
In the case of Gamini Athukorala vs. ChandrikaBandaranaike Cumaratunga™, S.N. Silva, C. J. at 68 succinctlystates the legal effects of Sections 91 and 96 as follows:
“It is to be noted that grounds (a) and (b) of Section 91are of a general nature with a concomitant impact on theresult of the election. If these grounds are established, theelection would be declared void. Whereas, grounds (c),
, (e), and (f), are what may be described as “candidatespecific grounds,” where a particular action of a candidateor his agent or any disqualification of the candidate isdrawn in issue. Unlike in the case of grounds (a) and (b)the entire election itself would not be drawn in issue inrelation to the latter set of grounds. If any of these groundsare established in relation to the particular candidate whois elected, the return of the person so elected would be
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declared undue. Section 96, which specifies the contents
of an election petition, reads as follows:
“An Election Petition –
shall state the right of the Petitioner to petition withinSection 93;
shall state the holding and result of the election;
shall contain a concise statement of the material facton which the Petitioner relies;
shall set forth full particulars of any corrupt or illegalpractice that the Petitioner alleges, including as fulla statement as possible of the names of the partiesalleged to have committed such corrupt or illegalpractice and the date and place of the commission ofsuch practice; and shall be accompanied by an affidavitin support of the allegation of such corrupt or illegalpractice and the date and place of the commission ofsuch practice;
Shall conclude with a prayer as, for instance, that somespecified person should be declared duly returned orelected, or that the election should be declared void,or as the case may be, and shall be signed by all thePetitioners;
Provided, however, that nothing in the precedingprovisions of this section shall be deemed or construedto require etndence to be stated in the petition."
Paragraphs (a), (b), (c) would apply in relation to anyPetition, whatever be the ground of avoidance that is
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relied on. Whereas paragraph (d) would apply in relationto the specific grounds of corrupt of illegal practice asstated in Section 91(c).”
Having pleaded general intimidation, general treating,general bribery and non-compliance with the provisionsunder Section 91 (a) and 91(b) of the Act in paragraph 7 ofthe petition, the petitioner has failed to seek a declarationthat the election was void. Thus I hold, even if the incidentsreferred to are proved by the petitioner, the absence of aspecific relief in terms of Section 94(a), precludes this Courtfrom granting a declaration that the election was void.
The second relief claimed by the petitioner in terms ofparagraph (b) of the prayer to the petition reads thus:
“(b) That Your Lordship’s Court be pleased to determine
and declare that the return of the 1st Respondent was
undue. “
In order to succeed to the grant of this relief, thepetitioner must prove the corrupt practices referred to inparagraphs 14, 15 and 16 of the petition. Further, Section95(1) (b) mandates that the petitioner should join as Respon-dents to his election petition, any other candidate or personagainst whom allegations of any corrupt or illegal practice axemade in the petition.
Learned President’s Counsel for the 1st Respondentsubmitted to Court that the petition does not comply with themandatory provision of Section 95(l)(b) of the Act, in that, thepetitioner has failed to join as Respondents to the petition,Sri Lanka Rupavahini Corporation, Sri Lanka BroadcastingCorporation, “Lakhanda” and the Independent Television
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Network. The Learned Counsel drew the attention of Court toparagraph 16(c) of the petition which reads as follows:
“(c) Commencing approximately at 1 p.m. on the dayof the Election, 26th January 2010, Upali SarathKongahage, Razik Zarook, Kalinga Indatissa, HudsonSamarasinghe and Wimal Weerawansa (the 20th,23rd, 24th, 25th & 26th Respondents hereto) made falsestatements, that the petitioner was not qualified tobe elected as President of Sri Lanka, and that evenif the petitioner were elected as President he will bedisqualified from holding such office. These falsestatements were broadcast without break until theclose of poll at 4 p.m. by Sri Lanka RupavahiniCorporation, Sri Lanka Broadcasting Corporation,Lakhanda and the Independent Television Network.These false statements repeatedly broadcast onthe above media had a deterrent effect preventingvoters supporting the petitioner from exercising theirfranchise. The said Upali Sarath Kongahage, RazikZarook, Kalinga Indatissa, Hudson Samarasinghe8b Wimal Weerawansa were supporters of the 1*‘Respondent, and had been actively engaged in speakingand working to promote the candidacy of the 1stRespondent throughout the period from the nomina-tion to the close of the poll. The said institutions whichbroadcast the said false statements were owned and/or controlled bv the State and therefore bv the 1MRespondent, and were agents of the 1st Respondent.The said false statements were made and broadcastwith the knowledge and consent of the 1st Respondent.”(emphasis added)
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Thus, the petitioner claims that the aforesaid institutionswhich broadcast false statements were agents of the firstRespondent. Further, in paragraph 22 of the petition, thepetitioner alleges that the said agents of the said Respondentare guilty of the corrupt practice of making false statements.It is on this basis, the learned President’s Counsel arguedthat agents referred to in paragraphs 16(c) and 22 shouldhave been made as Respondents in terms of Section 95(1) (b)of the Act. Counsel also submitted that the failure to joinnecessary parties as Respondents was a fatal irregularity andthat the petition be dismissed in limine.
By the use of the word “shall”, Section 95 is couched inmandatory terms, so that strict compliance with every letter ofthe law is necessary. The non-observance of Section 91(l)(b)and a departure from it is fatal to an election proceedings.In this regard, it may be relevant to consider the observationmade by Sharvananda, J. in the case of Kobbekaduwa vs.Jayewardene,{3] at 443.
“In this case the petitioner has filed one petition challeng-ing the 1st respondent’s election on the grounds that therespondent had committed corrupt and illegal practicesand has furnished security on the basis of one petition.The petition has to stand or fall as a single petition andnot as an aggregate of petitions depending on the numberof grounds of challenge. In the circumstance it is notopen to the petitioner to seek to salvage his petition bystating that the failure to join the United National Partyas a Respondent against whom the allegation of illegalpractice was made avoids only that charge but that thepetition is good for the purpose of maintaining the othercharges preferred in it. In my view, this course of action is
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not available to the petitioner; for the vice of the omissionto join the United National Party to his election petitionwhich included an allegation of illegal practice againstthe Party affects the entire petition and renders the en-tire petition as a nullity. Had there been two petitions,one incorporating the charges of corrupt practice and theother the charge of illegal practice the position would havebeen different; the petition relating to the corrupt practicewould have been saved. But, we have only one petitionand that petition has not complied with the imperativerequirements of section 95.”
Thus, in Kobbekaduwa’s case, the Court held thatalthough the United National Party was an unincorporatedbody it should have been made a respondent in compliancewith the imperative provisions of Section 95(1) (b) of theAct. It was also held that the provisions of Section 95 aremandatory and failure to comply with them renders the wholepetition a nullity and not merely a particular part of it invalid.
Further, in the case of Bandaranaike vs. Premadasa.w,Ranasinghe, C.J., at 253 noted that –
Election petitions have been dismissed for non-joinder ofnecessary parties though in both the 1946 Order in Counciland in Act No. 15 of 1981, the consequences of the failureto comply with mandatory provisions regarding joinderhas not been stated JSee Wijewardene vs. Senanayake)5):Kobbekaduwa vs. Jayewardene], (supra)
Ranasinghe, C.J., took the view that non-compliancewith the mandatory provisions for non-joinder of necessaryparties and non-service of the notice of presentation of thepetition are fundamental and fatal defects which render
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the whole petition bad and a nullity. Thus, at page 255, theCourt took the view that it has the power to reject an electionpetition in limine, if there is a fundamental defect in anelection petition arising out of non-compliance with amandatory provision.
Though the Act did not define the term “person",Section 2(c) of the Interpretation Ordinance defines theterm “person” s including “any body of persons corporate orunincorporated”. Out of the media institutions against whomthe allegations of committing the corrupt practice of making/broadcasting a false statement has been made, it is observedthat Sri Lanka Rupavahini Corporation and the Sri LankaBroadcasting Corporation are incorporated bodies in termsof Section 2(2) of the Sri Lanka Rupavahini Corporation andSection 6 (2) of the Sri Lanka Rupavahini Corporation ActNo. 6 of 1982 respectively. The Independent TelevisionNetwork is a corporate entity incorporated in terms of theCompanies Act and Lakhanda is a unincorporated bodyamalgamated to Independent Television Network. Accordingly,I hold that the failure to add the aforesaid institutions asparties to this petition is a fundamental flaw and amountsto a non-compliance with Section 95(l)(b) of the Act. Thus,the 1st Respondent is entitled to succeed in his preliminaryobjection that the petition should be dismissed in limine.
The third relief sought by the petitioner in terms ofparagraph (c) of the prayer to the petition reads as follows:
(c) “That Your Lordships’ Court be pleased to determineand declare that the petitioner was duly elected and oughtto have been returned as the President of Sri Lanka.”
Having pleaded general intimidation, general treat-ing, misconduct, non-compliance with the provisions of the
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Act and corrupt practices in paragraph 7 of the petition, inparagraph 17 the petitioner states that the majority of theelectors were or may have been prevented from electingthe candidate whom they preferred. Further, in paragraph18 of the petition, the petitioner states that in view of thecumulative effect of the facts and circumstances set out inparagraphs 8-16, the said election was not free and fair. Inview of the said averments, it is not possible for this Courtto declare that the petitioner was duly elected and ought tohave been returned as the President of Sri Lanka. It appearsthat the relief sought in paragraph (c) of the prayer to thepetition is inconsistent with the several averments referredto in the petition. When there are violations as alleged by thepetitioner and the said election was not free and fair, all whatthe Court could do is to declare that election void. Howeverthe petitioner has not prayed for such a relief and the Courtcannot, in law, grant a declaration that the petitioner be dulyelected as the President of Sri Lanka. Thus, I hold that thepetitioner cannot succeed in obtaining the relief sought inparagraph (c) of the prayer to the petition.
The petitioner claims the following relief in paragraph (d)of the prayer to the petition:
“(d) That Your Lordships’ Court be pleased to order ascrutiny of all the ballots cast at the said election heldon 26th January 2010 to be carried out by the 22ndrespondent and his officials in the presence of thepetitioner and 1st to 21st Respondents and/of theirauthorized representatives. ”
Upon the careful perusal of Section 94(d), it would appearthat a scrutiny is possible only on the ground of a claim made
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by an unsuccessful candidate who had obtained a majority of“lawful votes”, (emphasis added).
Nowhere in the petition, the petitioner claims to haveobtained a majority of lawful votes. The petitioner in paragraph26 of the petition only avers that in view of the facts andcircumstances set out in paragraphs 8-16 (viz., generalintimidation, general treating, general bribery, false state-ments which constitute misconduct, non – compliancewith the provisions of the Act, corrupt practice, etc.) he hadobtained a majority of the votes and therefore entitled to ascrutiny of the ballots. What is required for a scrutiny of theballots in terms of Section 94 of the Act was “a majority ofthe lawful votes” and not “a majority of the votes” Hence,the petitioner does not become entitled to the relief soughtin paragraph (d) of the prayer to the petition, (emphasisadded).
The Learned President’s Counsel for the 1st Respondentalso raised a preliminary objection on the failure to complywith Section 96(c).
Section 96 (c) stipulates that
“An Election Petition shall contain a concise statement of
the material facts on which the petitioner relies.”
I have already dealt with the issues where the Petitionerhas pleaded “general grounds” of avoidance but not soughtrelief by way of avoidance of the election. Accordingly itwould be necessary only to deal with what was referred to as“candidate specific grounds” for avoidance. Under this area,the Petitioner has focused on corrupt practices allegedlycommitted by the 1st Respondent which he claims, fall withinSec. 91 (c) of the Act.
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In India there is an identical provision to Section 96(c)of the Act, in the Indian Representation of the Peoples’ Actof 1951. Hence, it would be relevant to consider IndianAuthorities in deeding with this objection.
The Indian Supreme Court has applied a very strictstandard when considering the pleadings relating to corruptpractices in respect of the identical provision in the saidIndian Representation of the Peoples’ Act. In the case ofDhartipakar Madarilal Agarwal vs. Shri Rajiv Ghandf61it is stated “Allegations of corrupt practice are in thenature of criminal charges, it is necessary that there shouldbe no vagueness in the allegations so that the returnedcandidate may know the case he has to meet. If the allegationsare vague and general and the particulars of corrupt practiceare not stated in the pleadings, the trial of the electionpetition cannot proceed for want of cause of action. Theemphasis of law is to avoid fishing and roving inquiry. It istherefore necessary for the Court to scrutinize the pleadingsrelating to corrupt practice in a strict manner.”
In the case of Gamini Athukorale vs. ChandrikaBandaranaike Cumaratunge (supra) the test to be appliedto determine whether the required material facts had beencorrectly pleaded was laid down in the following manner “….. The test required to be answered is whether the Courtcould have given a direct verdict in favour of the electionpetition in case the returned candidate has not appeared tooppose the election petition, on the basis of the facts pleadedin the petition.” Accordingly, the pleadings should containsufficient material that could permit the Court to give thedecision in favour of the Petitioner if the returned candidatedoes not appear and oppose.
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The Petitioner has averred treating, bribeiy and falsestatements as corrupt and illegal practices which groundsfall within Section 91(C) of the Act. The provisions in respectof corrupt practices are laid down from Section 76 to 80 ofthe said Act.
When it comes to dealing with the corrupt practice oftreating and bribery it has to be kept in mind that the 1stRespondent was the Executive President on the material datesreferred to in the petition. Accordingly, his official positionrequires him to have meetings with various groups of peoplein the performance of his duty. Therefore, it would be neces-sary for the Petitioner to state material facts which wouldshow that these meetings were at least beyond his perfor-mance of official functions.
Sir Hugh Fraser in The Law of Parliamentary Election andElection Petitions, 3rd Edition at 108 states thus:-
“Any act of treating tending to interfere with the freeexercise of the franchise was always considered a corruptand illegal act at common law. But it has never beenconsidered necessarily a corrupt thing for personsinterested in particular subjects to invite other personsto a discussion relating to the subject, even though someentertainment may be provided. It would, we think, beto impose restrictions upon the advocacy of many publicquestions which the Legislature never intended to beimposed, if it were to be held that a temperance meet-ing or a meeting to advocate the admission of women tothe franchise, or a meeting for the disestablishment ofthe Church in Wales, at which tea or other refreshmentswere provided, was to be considered as a corrupt act,
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simply because the effect of the meeting might be to giveforce and strength to an agitation in favour of a politicalmeasure to carry out the views of the promoters of themeeting.”
“When that eating and drinking take the form of entic-ing people for the purpose of inducing them to changetheir minds, and to vote for the party .to which they donot belong, then it becomes corrupt, and is forbidden bythe statute. Until that arrives, the mere fact of eating anddrinking, even with the connection which this supper hadwith politics, is not sufficient to make out treating”.
In the above treaties, Fraser has also cited a passagefrom Willes J. in TamwortH7) as follows:-
“Treating to be corrupt, must be treating under circum-stances and in a manner that the person who treated usedmeat or drink with a corrupt mind, that is, with a view toinduce people by the pampering of their appetite to voteor abstain from voting, and in so doing to act otherwisethan they would have done without the inducement ofmeat or drink. It is not the law that eating and drinkingare to cease during an election.” (emphasis added)
Averments in the petition in respect of the corrupt practiceof treating is given in paragraph 14 of the petition. Names ofvarious associations/ groups/ professional bodies have beengiven and the dates and the venues have also been given. Butsignificantly the names of the persons who participated have notbeen given. Participants are described as “Artists”, “AyurvedaPhysicians,” “Graduates,” “Dharma School teachers” etc.No facts are stated or material given to establish thatthese meetings went beyond the official functions of the 1st
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Respondent who was the Executive President at the relevanttime.
Applicable provisions of the Act clearly and expressly statethat these acts have to be done with a “corrupt” intention.There was not even an express averment in the petition tothis effect.
Averments in respect of the corrupt practice of briberyis given in paragraph 15 of the Petition. Similar deficienciesas stated in respect of the corrupt practice of treating couldbe seen in these pleadings. It is observed that even in thesepleadings there is no express averment of the corrupt intention.Pleadings are also insufficient for the Court to arrive at aninference of a corrupt intention, more so in the context of thefact that the 1st Respondent was performing the function ofthe Executive President at the relevant time.
Facts relating to the corrupt practice of making falsestatements are contained in paragraph 16 of the petition.These averments do not give the exact words used in thealleged false statements supposed to have been made by the1st Respondent or on his behalf by the Respondents referredto. In respect of the “fake document” referred to in paragraph16 (a) and (b) of the petition at least a copy has not beenproduced by the Petitioner.
As stated even the Indian Supreme Court has emphasizedthe necessity of the allegations not being vague. (DhartipakarMadanlal Agarwal vs. Shri Rajiv Ghandi (supra)).
The Learned President’s Counsel for the 1st Respondentin his submissions drew the attention of Court to many localand Indian cases to show that false statements made in
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respect of the candidates public conduct and character asopposed to his personal conduct and character do not fallinto the categoiy of corrupt practice. He took up the positionthat the statements referred to do not touch on his personalconduct and personal character. In my view, due to the basicdeficiencies in the pleadings in respect of the allegation offalse statements it is not necessary for this Court to consideror decide on these aspects.
The consequences of non compliance was dealtwith in Kobbekaduwa vs. Jayawardena (supra) in thefollowing manner:
“Material facts are those which go to make out thePetitioner’s case against the Respondent. The word‘material’ means necessary for the purpose of formulat-ing the charge and if any one material fact is omittedstatement of claim is bad and liable to be struck out.”
In the case of Udhav Singh vs. Madhav Rao Scindiai8) theIndian Supreme Court held,
. . .In short all those facts which are essential tocloth the petitioner with a complete cause of action are“material facts” which must be pleaded, and failure toplead even a single material fact amounts to disobedienceof the mandate of Section 83(1) (a)”.
During the hearing of the case the counsel for thepetitioner submitted that the relevant sections of the Acthave been expressly quoted and pleaded in the petition andaccordingly there is sufficient compliance with the require-ments of section 96(c). In this regard, I would like to cite thefollowing quotation from the Indian Supreme Court in thecase of Hari ShankerJain vs. Sonia Gandhi,9'.
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“Material facts required to be stated are those facts whichcan be considered as materials supporting the allegationsmade. In other words, they must be such facts as wouldafford a basis for the allegations made in the petition andwould constitute the cause of action as understood in theCode of Civil Procedure, 1908. The expression “cause ofaction” has been compendiously defined to mean everyfact which it would be necessary for the Plaintiff to prove,if traversed, in order to support his right to the judgmentof the court. Omission of a single material fact leads toan incomplete cause of action and the statement of claimbecomes bad. The function of the party is to present asfull a picture of the cause of action with such furtherinformation in detail as to make the opposite partyunderstand the case he will have to meet (See SamantN Balakrishna etc. vs. George Fernandez and others^'0' etc.- (1969) 3 SCR 603, Jitender Bahadur Singh vs. KrishnaBehari (11|(1969) 2 SCC 433.) Merely quoting the words ofthe section like chanting of a mantra does not amount tostating material facts. Material facts would include posi-tive statement of facts as also positive averment of a neg-ative fact, if necessary. In 7S. Achuthanandam vs. P.J.Francis and another021 (1999 3 SCC 737) this court hadheld on conspectus of a series of decisions of this court,that material facts are such preliminary facts which mustbe proved at the trial by a party to establish existence ofa cause of action. Failure to plead material fact is fatalto the election petition and no amendment of the plead-ings is permissible to introduce such material facts sifterthe time limit prescribed for filing the election petition.”(Emphasis added)
Thus, quoting the relevant sections is not a substitute forthe mandatory requirement contained in section 96(c).
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Due to the above facts I hold that the election petitiondoes not comply with the requirements contained in Section96(c) of the Presidential Elections Act. Learned Counsel forthe 24 th Respondent submitted that no proper affidavit hadbeen filed by the Petitioner to comply with the mandatoiyrequirements contained in Section 96(d) of the Act.
Section 96 or any other provision of the Act do riotprescribe the form of the. affidavit.
Paragraph 1 of the affidavit sworn by the Petitionerhimself states as follows:- I am affirmant hereto and thepetitioner above named. I affirm to this affidavit from factswithin my personal knowledge and obtained by me fromthe supporters of the New Democratic Front and the otherpolitical parties who supported me at the election held on26th January 2010 who were connected with me and/or hadpersonal knowledge of the several acts and incidents on whichrelief is prayed for by me in the election petition.”
Based on the above statement and the contents of theaffidavit the Respondents allege that the affidavit is basedon “hearsay” and accordingly contains facts which are notwithin the affirmant’s personal knowledge but obtained fromelsewhere. The Petitioner could have filed affidavits “fromsupporters of the New Democratic Front and other politicalparties” referred to in the 1st paragraph to his affidavit whomay have personally witnessed the events referred to in theaffidavit.
During the course of the submissions the Counsel for thePetitioner referred to the wording of the section which speaksof “an affidavit” and submitted that he was restricted to filingone affidavit. But the Counsel for the Respondents drew theattention of Court to Section 2 of the Interpretation Ordinance
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where it states “words in the singular number shall
include the plural and vise versa”.
Jayasinghe vs. Jayakody & othersi<10) is a casewhere the election of a Member of Parliament waschallenged under the provisions of the Ceylon ParliamentaiyElection Order in Counsel 1946 as amended by Act 9 of 1970.Section 80 of the Ceylon Parliamentary Election Order inCouncil also has a similar provision in respect of an affidavitin the following manner.
“The Petition shall also be accompanied by an affidavit inthe prescribed form in support of the allegation of suchcorrupt or illegal practice and the date and place of thecommission of such practice.”
In paragraph 2 of the affidavit filed by the Petitioner inJayasinghe vs. Jayakody, (supra) it is stated as follows:-
“That the averments of facts set out in my petition andthe particulars of the commission of corrupt practice setout therein are made from my personal knowledge andobservation or from personal inquires conducted by mein order to ascertain the details of the incident referred toin the petition.”
Even in Jayasinghe vs. Jayakody (supra), the Petitionerdid not say in his affidavit which facts in the petition arebased on personal knowledge and which of them are basedon information. In that case the Election Judge held that theaffidavit can be based on personal knowledge or on informationand belief provided that in the latter the deponent mustdisclose the source of information and the grounds of hisbelief. The Election Judge rejects the affidavit in the said casedue to the above reason in the following manner. “I reject
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the affidavit filed by the Petitioner on the ground that thePetitioner has not verified and confirmed the facts stated inthe petition. I uphold the objection that there was no properaffidavit supporting the allegation of corrupt practice pleadedin the petition and therefore the Petition was defective.” Butin the appeal to the Supreme Court Sharvananda CJ. held asfollows
“I agree with the Election Judge that where some of thestatements in the paragraph of the affidavit accompanyingthe election petition are based on the knowledge ofthe deponent and some on information received fromothers, the affidavit is defective. But I do not agree withthe Election Judge that the petition should be dismissedon that ground of defect in the verification. The allegationof corrupt, practice cannot be ignored merely on theground that the source of information, is not disclosed!when the allegation is based on information, as it is not arequirement of law that the source of information or theground of the deponent’ belief should be set out, since theform of the mandatory affidavit has not been prescribed.In my view the Election Judge was in error in upholdingthis objection regarding the affidavit.
I agree with Samarawickrama, J. that an election petitionshould not be dismissed on the ground of defective affidavit,where no form has been prescribed by law.”
Accordingly Sharvananda C.J. held that the affidavit isdefective but did not dismiss the election petition on thatground alone.
In the matter before us, the Petitioner has obtained mostof the facts in the affidavit “from the supporters of the New
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Democratic Front and other political parties who supported”the Petitioner at the election. The name of the supportersor at least the name of the political parties from whom theinformation was obtained have not been disclosed. In thecircumstances, on the same reasoning of Sharvananda CJ inthe case of Jayasinghe vs. Jayakody (Supra), I do not dismissthe election petition on this ground alone but hold that theaffidavit filed in this case is defective.
The totality of the circumstances referred to aboveestablish defects in the pleadings of the petitioner. It is theduty of the Court to examine the petition and make a decisionto reject it if it is misconceived in law. Failure to file properpleadings, is fatal to an election petition and no amendmentsof the pleadings are permissible at this stage. If a properpetition had been filed, this Court may, upon such terms asto costs or otherwise as the Court may deem fit allow theparticulars of any corrupt practice specified in the petitionto be amended or amplified in terms of Section 97 of the Act.However, if the pleadings, do not disclose proper reliefs worthto be tried by Court, the pleadings are liable to be struck offand the election petition is liable to be dismissed in limine.
For the reasons set out above I uphold the preliminaryobjections raised by the respondents and dismiss the petitionin limine. However, I order no cost.
DR. SHIRANI A. BANDARANAYAKE J. – I agree.
SRIPAVAN J. – I agree.
RATNAYAKE J. – I agree.
IMAM J. – I agreePetition dismissed.