041-NLR-NLR-V-69-W.-A.-HEMADASA-and-2-others-Appellants-and-J.-L.-SIRISENA-Respondent.pdf
Hemadasa v. Sirisena
201
1966 Present: H. N. G. Fernando, S.P.J., Tambiah, J., andAbeyesundere, J.W.A. HEMADASA and 2 others, Appellants, and
J.L. SIRISENA, Respondent
Election Petition Appeal No. 4 of 1966—ElectoralDistrict No. 101 (Bingiriya)
Election petition—Corrupt practice of undue influence—Words tittered at a religiousassembly—Meaning of expression “ religious assembly"—Ceylon (ParliamentaryElections) Order in Council, 1946, s. 56 (2) (a) (c).
Section 56 (2) (a) of the Ceylon (Parliamentary Elections) Order in Council,1946, as amended by Act No. 10 of 1964, reads as follows :—
“ Every person who, at any time during the period commencing on theday of nomination at any election and ending on the day following the dateof the poll at such election, utters at any religious assembly any words forthe purpose of influencing the result of such election or inducing any electorto vote or refrain from voting for any candidate at such election shall beguilty of the offence of undue influence.”
Held, that a gathering of persons becomes a religious assembly only whenthey are actually attending any religious proceedings. The expression “ anyreligious assembly ” occurring in the Section does not include a gathering ofpersons who are awaiting the commencement of any religious proceedings atany place or who, having attended such proceedings, are in recess during anadjournment of such proceedings or are lingering at such place after theconclusion of such proceedings.
.A-PPEAL from the judgment of the Election Judge in Election PetitionNo. 25 of 1965—Electoral District No. 101 (Bingiriya).
The following is an extract from the judgment of the ElectionJudge (Manicavasagar, J.):—
“ The charge of undue influence on which the petitioners rely ismade under Section 56 (2) (a) of the Order-in-Council, 1946.
“ The petitioners claim that between Nomination day and pollingday words were uttered at religious assemblies, for the purpose ofinfluencing the result of the election by the persons named in theparticulars, and such person was either an agent of the respondent orone who acted with his knowledge or consent.
“ The evidence of the several witnesses in regard to the period oftime, and the words used was not contradicted nor were they seriously
202
Hemadasa v. Sirisena
challenged. The only matters on which witnesses were questionedand submissions made were whether the words were used at a religiousceremony aftd whether the speaker was an agent of the respondent.
“ On the former issue Counsel for respondent submits that the wordsshould have been made to persons actually participating in a ceremonyor religious worship : words used on such an occasion would certainlybe within the ambit of Section 56 (2) (a), but to confine it to only such anoccasion would be to give the Section too narrow an interpretation.Mr. Shinya’s argument, on the contrary, gives the Section a much widerscope : he submits that the word “ at ” in the phrase “ at a religiousassembly ” gives the clue as to the persons, the place and occasionwhich the Legislature sought to protect: he submits that the Sectionwould catch up persons who have reached the venue for a religiouspurpose, even though they have not assembled for that purpose. Ithink this interpretation goes beyond the bounds of reasonable inter-pretation of the provision : it -would bring within its ambit a groupof persons who are together in the compound of a church or temple,either before or after participating in the business which brought themto the venue. To this extent I do not agree with his submission :I think he has cast the not too wide; these words connote a congregationof persons, who have in fact assembled for the religious purpose.The words should be spoken after the persons had assembled for the-purpose for which they had come, and before they disperse : an assemblyshould have come into existence.
“ The object of this provision which was introduced in 1959 was toprevent the exploitation of religion for political purposes : to catchup cases where Ministers of religion who took the opportunity of theoccasion to advise tlieir flock who had assembled for a religious purposehow they should cast their votes. I do not think it really relevant toconsider the intention of the Legislature : the words are plain enoughand apply to words spoken at a religious assembly for the purposementioned in the Section : applying the construction I have placed,my view is that the petitioners have failed to establish that the severalutterances to which the witnesses referred, except one, were spoken ata religious assembly. ”
Hanan Ismail, with Dharmasiri Senanayake and K. Sivananthan, for♦he appellants.
K.C. Nadarajah, with B. J. Fernando and Ananda Paranavitana, forthe respondent.
Cur. adv. vult.
ABEYESUNDERE, J.—Hemadaea v. Sirisr.na
203
September 22, 1966. Abeyesundere, J.—
The appeal of the appellants was heard and dismissed by us. We nowgive the reasons.
The question of law to be determined on the appeal is whether theevidence led at the trial of the election petition affords legal proof of theallegation of the appellants that in connection with the election therewere instances of the commission of the corrupt practice of undueinfluence under section 56 (2) of the Ceylon (Parliamentary Elections)Order in Council 1946, hereinafter referred to as the Order in Council.
It was argued by counsel for the appellants that the expression “ anyreligious assembly ” occurring in section 56 (2) (a) of the Order in Councilincludes a gathering of persons who are awaiting the commencementof any religious proceedings at any place or who having attended suchproceedings are in recess during an adjournment of such proceedings orare lingering at such place after the conclusion of such proceedings.We do not accept counsel’s interpretation of the aforesaid expressionbecause in our view it is only when actually attending any religiousproceedings that a gathering of persons becomes a religious assembly’.
The first alleged instance of undue influence is an utterance by BhikkuSaranatissa of Bunnapola Temple on the occasion of the laying of afoundation stone for the construction of an “ avasa ” at ParanagamaTemple in Udabeddewa. The two witnesses who gave evidence wereagreed that the utterance of Bhikku Saranatissa was before thecommencement of the ceremony of laying the foundation stone. Oneof those witnesses stated that such ceremony started about half an hourafter the utterance was made. The learned Election Judge has held notonly that there was no religious assembly when the utterance of BhikkuSaranatissa was made but also that the occasion of laying the foundationstone was not a religious occasion because the “ avasa ” to be constructedwas a building for the residence of Buddhist monks. As Bhikku Sarana-tissa’s utterance was made before the commencement of the ceremonyof laying the foundation stone, we hold that the persons to whom theutterance was made were then not attending any religious proceedingsand therefore w’ere not a religious assembly. Consequently we holdthat the evidence does not in law establish that Bhikku Saranatissacommitted the offence of undue influence under section 56 (2) (a) of theOrder in Council. We do not uphold the finding of the learned ElectionJudge that the occasion of laying the foundation stone for constructingan " avasa ” is not a religious occasion. There is no witness competentto speak on the religious affairs of Buddhists who has testified that thelaying of a foundation stone for the construction of an “avasa” is not areligious affair of Buddhists.
The appellants have made allegations of undue influence relating tocertain incidents at the Bhavana Centre at Dummalasuriya and theBhavana Centre at Bowatta. Those Centres are used for meditation andreligious discussion by Buddhists. According to the evidence, persons
204
ABEYESUNDERE, J.—Hemadasa v. Sirisena,
coming from a distance to attend religious proceedings at the BhavanaCentres arrive there on the evening of the day immediately preceding theday on which such proceedings are held. There is the evidence that—
on the night before a certain day set apart for meditation there
were about fifty or sixty persons at the Bhavana Centre atDummalasuriya and a physician called Karunaratna camethere about 7.30 p.m. and asked those persons to vote forthe elephant which was the symbol allotted to the respondent ;
on the following day religious proceedings commenced at the
Bhavana Centre at Dummalasuriya at about 6 or 6.30 a.m.,there was an interval for meals and rest from about 10.30 or11 a.m. to about 2.30 p.m., after the interval the persons whoremained reassembled for religious discourse, and during theinterval a person called Bandappu distributed leaflets andasked those present to do as they were instructed by theVedhamahathmaya, the reference being to what the physicianKarunaratna had told them on the previous night ;
some devotees arrived at the Bhavana Centre at Bowatta on the
night preceding a certain day on which religious proceedingswere held at that Centre and a person called Karunasena hadcome there that night and asked those present to give theirvotes to save the country from the Marxists ; and
during the interval from 11 a.m. to 1 p.m. for meals and rest on
the day on which the religious proceedings were held at theBhavana Centre at Bowatta the aforesaid Karunasenareminded those present that the country should be savedfrom the Marxists.
The learned Election Judge has held that there was no religious assemblybefore the commencement of the religious proceedings and during theinterval. When Karunaratna at the Bhavana Centre at Dummalasuriyaand Karunasena at the Bhavana Centre at Bowatta addressed thepersons present on the night preceding the day on which the religiousproceedings were held, they did not address a religious assembly becausethose persons were then not attending any religious proceedings. Theassembly that participated in the religious proceedings ceased to be areligious assembly during the interval for meals and rest. Thereforewhen Bandappu at the Bhavana Centre at Dummalasuriya and Karuna-sena at the Bhavana Centre at Bowatta addressed the persons presentduring the interval, they did not address a religious assembly. Wehold that the evidence does not in law establish that Karunaratna,Bandappu, or Karunasena committed the offence of undue influenceunder section 56 (2) (a) of the Order in Council.
The last alleged instance of undue influence relates to an incident in thepremises of Munnakulama Temple. The evidence is that at about 7 p.m.on a certain day there was a cinematographic film show in the open at aplace between the school hall and the “ legumge ”, that several places of
Samarasinghe v. Balasuriya
205
historical and religious interest in Ceylon and India were shown, thatalter the show was over Bhikku Saranatissa? the High Priest of Munna-kulama Temple, addressed those present and asked them to vote for theelephant and see that the respondent was sent to Parliament. Thelearned Election Judge has held that there was no utterance at a religiousassembly within the meaning of section 56 (2) (a) of the Order in Counciland that there was no public meeting held at a place of worship withinthe meaning of section 56 (2) (c) of the Order in Council. The personspresent at the cinematographic film show of places of historical andreligious interest in Ceylon and India were not attending any religiousproceedings and were therefore not a religious assembly. There is noevidence that the ground between the school hall and the “ legumge ”was used by Buddhists as a place of worship and therefore it cannot besaid that those who assembled there for the cinematographic film showwere having a public meeting at a place of worship. We hold that theevidence does not in law establish that the gathering of people whomBhikku Saranatissa addressed after the cinematographic film show wasa religious assembly within the meaning of section 56 (2) (a) of the Orderin Council or that those people were having a public meeting at a placeof worship within the meaning of section 56 (2) (c) of the Order inCouncil.
H. N. G. Fernando, S.P.J.—I agree.
Tambiah, J.—I agree.
Appeal dismissed.