Legal Services and Laws of Sri Lanka
SLR - 1978-79-80 Vol.1, Page No - 361
SAMARAKOON, C. J., SAMERAWICKREMA, J. AND THAMOTHERAM, J.
S.C. NOS. 1/80 AND 2/80,
11, 12, 14, 15 AUGUST 1980 AND 2, 3, 4, 5 AND 8, SEPTEMBER 1980
Election Petition - Election - Candidate - Burden of proof - Standard of proof -Questionoffact-Questionoflaw-
Corrupt practice of publication of false statement of fact in relation to the personal character and conduct of candidateto
affect his return - Section 58(1) (d) read with s. 77(c) of Ceylon (Parliamentary Elections) Order in Council, 1946-Illegal
In law an election becomes a fact and a reality only when a by-election is called under the provisions of Article 36(2)of
the Constitution or when a general election is called, under the provisions of section 41(6) and (7) of theConstitutionof
1972. The candidate who is accepted by the Returning Officer on nomination day as a candidate who is entitledtocontesta
particular seat is a person who is nominated as a candidate at that particular election within the meaningofsection3(1)
of the Ceylon (Parliamentary Elections) Order in Council, 1946.
What is published before the nomination cannot be utilised to found an allegation ofanelectionoffencebutitcanbe
utilised as circumstantial evidence to prove publication of other statements afterthenominationandalsototestthe
credibility of witnesses.
The burden of proof lies on the petitioner and proof beyond reasonable doubt is required.
The determination of primary facts is always a question of fact. It is for the tribunal that seesthewitnessestoassess
their credibility and decide the primary facts. Conclusions from these primary facts are sometimes conclusionsoffactand
sometimes conclusions of law.
Holding a charge proved on the evidence of one manisunsafealthoughheimpressesasatruthfulwitnesswherehis
information is what is gathered from others.
It was conceded that two documents P 18 and P 19 contained false statements of fact relating tothepersonalcharacterof
the petitioner. They contain allegations of the meanest and foulest kind meant, without doubt, to affect thereturnofthe
petitioner. Whoever did it stooped to conquer. Section 6 of the Newspapers Ordinance required thefirstname,surnameand
place of abode of the printer and publisher to be printed at the end of the newspaper. Section 52 A and section 68 Aofthe
Ceylon (Parliamentary Elections) Order in Council required that all election literature should bear on thefaceofitthe
name and address of the publisher. The 2nd respondent's name is imprinted as publisher and he was 1st respondent's agent.
Cases referred to :
(1) Premasinghe v. Bandara 69 NLR 155
(2) Don Phillip v lllangaratne 71 NLR 561
(3) Subasinghe v. Jayalath 69 NLR 127
(4) Bracegirdle v. Oxley 1947 1 All ER 126, 130
(5) Venkataswami Naidu & Co. v. Commissioner of Income Tax AIR 1959 S.C 359.
APPEAL from judgment of election judge.
C. Thiagalingam QC. with A. C. Goonaratne Q.C., K. Devarajan and Daya Pelpola for 1st respondent-appellant.
J. W. Subasinghe with Waruna Basnayake for 2nd respondent-appellant.
H. L. deSilva with K. Shanmugalingam, Desmond Fernando. Suriya Wickremasinghe, Sidat Sri Nandalochana, PeterJayasekera,
N. V. de Silva, S. H. M. Reeza and Suren Peiris for petitioner-respondents.
08 October 1980
The petitioner in this case was a candidate at the General Election held on the 21st July, 1977, for the election ofmembers
to Parliament. He stood for election to theElectoralDistrictNo.159Kalawana.Theothercandidateswerethe1st
Respondent, S. S. Gauthamadasa and H. R. S. de Soysa. The 1st Respondent received 12098 votesandthePetitionerreceived
10436 votes. The 1st respondent was declared elected by a majority of 1662 votes. On the15th August, 1977, apetitionwas
filed praying (a) for a determination that the 1st Respondent was not duly elected or returned and(b)for adeclaration
that the 1st Respondent's election was void in law. After a lengthy hearing the Election Judge declaredtheelectionvoid.
Hence this appeal.
The petition filed on the 15th August, 1977, sets out the following charges :
That the third Respondent, Walter Jayawardena, made and wrote an article entitledas agent ofthe1stRespondentor
with the knowledge and/or consent of the 1st Respondent which was published on the 29th April, 1977, in the newspaper("Jana
Aviya")(p6) by the 2nd Respondent as agent of the 1st Respondent orwiththeknowledgeand/orconsentofthe1st
Respondent. The petitioner pleaded that the statements contained in the article (which statements aresetoutverbatimin
para 3 of the petition) were false statements of fact in relation to the personal character or conduct of the petitionerand
were made or published for the purpose of affecting the return of the petitioner - a corrupt practice within the meaningof
section 58 (1) (d) read with section 77(c) of the Ceylon (Parliamentary Elections) Order in Council 1946.
2. That the 2nd Respondent Nimal Chandrasiri, as agent of the 1st Respondent or with the knowledge and/or consent of the1st
Respondent published an article in the(Kalawana Janatha) of 17th July, 1977, (P18) entitled (Comrades inaFraud-
20000 Misappropriated Keeping Red Appo as Surety) a false statement of fact (which statement is set out verbatiminpara4
of the petition) in relation to the personal character and/or conduct of the petitioner forthepurposeofaffectingthe
return of the petitioner - a corrupt practice within the meaning of section 58(1) (d) read with section 77(c) oftheCeylon
(Parliamentary Elections) Order in Council 1946.
3. That the 2nd Respondent as Agent of the 1st Respondent orwiththeknowledgeand/orconsentofthe1stRespondent
published in the(Kalawana Janatha) of the 19th July, 1977,(P19)anarticleentitledUncle(father-in-Law)
sends goods to nephew (son-in-law) for murder) containing false statements (which statements are set out verbatim inpara5
of the petition) in relation to the personal character and/or conduct of the petitioner forthepurposeofaffectingthe
return of the petitioner - a corrupt practice within the meaning of section 58(i) (d) read with section 77(c) oftheCeylon
(Parliamentary Elections) Order in Council 1946. The last sub-para of para 5 reads -
The said newspaper referred to above was published, sold and distributed before and during the saidelectionfromthe
1st Respondent's Election Office at Manana, Kalawana and throughout the Electoral District No.159,Kalawanainsupportof
the 1st Respondent who was the candidate of the United National Party inthesaidElectoralDistrict.(Anaffidavitin
support of the above allegation is annexed hereto marked 'B'."
4.(a) That the facts and circumstances set out in para 5 of the petition (the 3rd charge referred toabove)constitutedan
illegal practice of false reports in newspapers within the meaning of section 58A oftheCeylon(ParliamentaryElections)
Order in Council 1946.
(b) That by reason of the statements set out in the said para 5 the 2nd Respondent committed an illegal practicewithinthe
meaning of the said Section 58A.
(c) That the 2nd Respondent committed the said illegal practice as Agent of or with the knowledge and/or consent ofthe1st
Respondent thereby making the election of the 1st Respondent null and void within the meaning of the saidsection58Aread
with section 77(c).
There were some objections against this petition being accepted which were filed by the 1st Respondent on the 15thNovember,
1977, but these are of no consequence now. On the 20th August, 1979, Counsel forthe1stRespondentgavenoticetothe
petitioner that he would, at the trial, take objection that sufficient particulars as required by law had not beengivento
enable the said 1st Respondent to meet the charges and therefore the charges should be struck off. The ElectionJudgefixed
this matter for preliminary hearing on 18.9.79 and after hearing parties on that date he delivered orderon1.10.79.There
is a record of certain proceedings on 1.10.79 before order was delivered. It appears to have beenconcededbyCounselfor
1st Respondent that "'publication, sale and distribution would all constitute publication in the general sense"anddonot
form three different charges. The Election Judge then proceeded to deliver order. He held :
1.That as "far as publication is concerned" no further particulars were needed as the petitioner hadpleadedthatthe2nd
Respondent had published the newspapers of 29.4.77 (P16) 17.7.77 (P18) and 20.7.77 (P19).
2.That the petitioner should furnish the fullest particulars as regards places and dates and otherparticularsasrequired
by section 80(5) (d) of sale and distribution by 2nd Respondent.
3.That the address of 1st Respondent's election office at Manana be furnished - for the benefit of2ndRespondentand3rd
4.That the charge in paragraph 6 of the petition (one of illegal practice) contained no flaw and could not be struck off.
It must be noted at this stage that in this order the Election Judge makes a distinction between publication on the onehand
and sale and distribution on the other.
The Petitioner filed an affidavit on the 23rd October1979, giving particulars to which Counsel for thePetitionertooka
number of objections. The Election Judge made order afterinquiryintotheseobjections.Theparticularsfurnishedas
amended. by the Election Judge appear on the reverse of the document P8.The sale and distribution of P18 was restrictedto
17.7.77 and 18.7.77 and of P19 was restricted to 20.7.77 by choice of Counsel for the petitioner. P6 was stated to havebeen
sold and distributed by the 2nd Respondent and "by persons unknown to the petitioner". The Election Judge recorded that "No
evidence will be permitted that distribution was by (the underlining is that of theElectionJudge)personsunknown".No
order appears to have been made with regard to the particulars that P19 was sold and distributed bythe2ndRespondentto
persons unknown at Pimbura arid Sinhalagoda. Those particulars stood. Inthis state of things the inquiry commencedonthe
charges of corrupt practice and illegal practice. After inquirytheElectionJudgeheldthe2ndRespondentguiltyof
committing corrupt practice in respect of charges 1 to. 3 and guilty ofillegalpracticeintermsofsection58A.The
election of the 1st Respondent was declared void as the2nd Respondent wastheAgentofthe1stRespondent.Thecase
against the 3rd Respondent was dismissed with costs. The 1st and 2nd Respondents appealed against this finding.
It is necessary at the outset to consider an objection taken by Counsel for the 2nd Respondent. He contendedthattheJana
Aviya dated 29.4.77 (P6) cannot be taken into account and be considered for any of the charges asitwasallegedtohave
been published, sold and distributed on 29.4.77 at a time when there was no election in the offing. At that date there wasa
Parliament in existence and the Petitioner was a member of it. That Parliament was dissolved on the 18thofMay,1977.He
pointed to the fact that section 53(1) (d) refers to " the return of a candidate " and he contends thatasat29.4.77the
Petitioner was not a candidate. Section 3(1) of the Ceylon (Parliamentary Elections) Order in Council defines candidatethus
for the purposes of the Order in Council :-
" 'Candidate' means a person who is nominated as a candidate at an election or is declared by himself tobeoractsasa
candidate for election to any seat in the House of Representatives "
For the purpose of this definition an election is a sine qua non - not an expectation or hope of an election beingheld.An
" election " is defined in Section 3 (1) of the Order in Council as " an election for the purpose of electingamember"to
Parliament. An election became necessary when the seat of a Member of the National State Assembly fellvacantintermsof
the provisions of Section 36 (1) (a) to (f) of the Constitution of Sri Lanka 1972. The President then by notification inthe
Gazette ordered the holding of an election to fill the vacancy, commonly referred to as a by-election. A general electionis
held when Parliament is dissolved (Section 36 (1) (g) of the Constitution of 1972). The President then by Proclamationfixes
a date. or dates for election of Members to the National State Assembly (Section41(6)oftheConstitution,1972).When
Parliament stands dissolved by expiry of the period ofsixyearsfixedforitscontinuance,(Section41(7)ofthe
Constitution, 1972), the President in consultation with the Prime Minister fixes dates within the period of four monthsfrom
the date of dissolution for the holding of elections (Section 47(7)oftheConstitution,1972).Inlawthereforean
election becomes a fact and a reality only when a by-election is called under the provisions of Article36(2)orwhena
General Election is called under the provisions of Section 41(6) and (7) of the Constitution, .1972. These are theelections
contemplated by the words "candidate at an election" in section 3 (1)oftheCeylon(ParliamentaryElections)Orderin
Council. From the time such an election is called according to the provisionsoftheConstitutionapersonmaydeclare
himself to be, or act as, a candidate for election to any seat in Parliament. Indeed, the authorized agentofarecognized
party may, even before the day of nomination issue a "valid certificate of officialcandidaturetoacandidateandsuch
person then "acts as a candidate". Afternominationdayhewillalsobenominatedcandidate.Ineveryproclamation
dissolving Parliament and in every notice ordering the holding of an election (i.e. a by-election) a "day of nomination"and
"place . of nomination" is specified. (Section 28 of the Election Order in Council.) The candidate whoisacceptedbythe
Returning Officer on nomination day as a candidate who is entitledtocontestaparticularseatisa"personwhois
nominated as a candidate" at that particular election within the meaning of Section3(1)ofthe Ceylon(Parliamentary
Elections)Order in Council 1946. The reckoning of any period prior to the notice in the Gazette,ortheProclamationby
the President is to do violence to the language of the Section for, to take an extreme case, a person may declare himselfto
be a candidate for every election that might be held for a particular seat,duringhislifetimeinthefuture.Sucha
construction will reduce the provisions of Section 58 of the Elections Order in Council to an absurdity.
The petitioner himself understood these words in this light for in his affidavit dated 15.8.77 filed withthepetition he
stated that P6 was "published before the said election". Para 4 of the affidavit sets it out thus:
"(d) This aforesaid statement was published before the said election in the newspaper "JanaAviya"bearingthedate29th
April 1977, by the 2nd Respondent as Agent of the 1st Respondent or with his knowledgeand consent of the 1st Respondent."
The particulars given by the affidavit of 19th October 1979 states that P6 was distributed by the 2nd Respondent on,29.4.77
at Manana Election Office (para 4) and that it was sold and distributed on 29.4.77 at a meeting held at theMananajunction
which was addressed by the Hon. Mr. J. R. Jayewardene. P6 cannot therefore be utilised to found an allegation of anelection
offence. Charge 1 therefore fails. Nor can it be utilised for the purpose of proving the charge of illegalpracticebecause
that charge refers to the pleadings in para 5 of the petition which concern only P19 of 19.7.77. Para 4 (g) of theaffidavit
on 15.8.77 states that P6 "was published and sold and printed before and during the said election". P6 has been admittedfor
the limited purpose of proving that it was in circulation and was utilised as circumstantial evidencetoprovepublication
of P18 and P19. It was also used to test the credibility of witnesses. P7 of 19.3.77 falls into the same category.Suchuse
The Election Judge has held that the burden of proof that lay on the petitioner was one of proof beyond reasonabledoubtas
in a criminal case. He followed the decision of de Silva, J. in the case of Premasinghev. Bandara(1).Inthatcasede
Silva, J. reviewed all the decisions relating to the burden of proof in election cases and set out the following ruleswhich
he states . were deducible from those decisions
"1. that any charge laid against a successful candidate by a petitioner in an election petition should be proved beyond
reasonable doubt before a court could satisfy itself of such charge
2. that suspicion however strong it may be does not amount to proof of any charge
3. that even a high degree of probability is not sufficient to constitute the proof required to establish a charge and
that a court should be slow to act on one witness's word against another's even if the word ofthepersonwhosupportsa
charge rings true when that constitutes the only evidence of such charge."
De Silva J. himself was dealing with charges of corrupt practice. The petition in thiscasesetsoutchargesofcorrupt
practice and one of illegal practice. The Order in Council makes them criminal offencesaswell,byaprovisionthata
person guilty of any such offence is liable to prosecution and on conviction by a District Court he maybe punished withfine
or imprisonment or both. To my mind this seems to indicate that the standard of proof as in a criminal caseisrequiredin
proving the offence in an election case. There cannot be different standards of proof for the sameoffence-oneforthe
election case and another for the criminal prosecution. I agree that the burden of proofinthiscasewhichlayonthe
petitioner was one of proof beyond reasonable doubt. I do not however agree with thecriticismmadebydeSilvaofthe
Judgment of Nagalingam J. in the case of Don Phillip v. lllangaratne (2) in which Nagalingam J. stated that the"falsityof
the statement is prima facie established when there is a bare denial on oath". However, it is not necessary todiscussthis
at length as Counsel for the 1st Respondent has conceded that the statements in P18 and P19 are false statements offactin
relation to the personal character and conduct of the petitioner.
The appellants have no right of appeal on the facts. Section 82A of the Order in Council grants a rightofappealonlyon
any question of law but not otherwise. Counsel for the 1st Respondent submitted thatthefindingsoffactonwhichthe
election was declared void were not rationally possible and perverse and that was a question of law which this Courthadto
decide. Counsel for the 2nd Respondent too stood his case on this question of law. There is no doubt that such aproposition
has been accepted in our Courts and is part of the law in this countryVide Subasinghe v.Jayalath(3).Inessencethis
proportion is the distinction between pure questions on tactandinferencesdrawnfromacceptedfacts.DenningJ.in
Bracegirdle v. Oxley (4) stated it thus:
"The question whether a determination by a tribunal is a determination in pointoffactorinpointoflawfrequently
occurs. On such a question there is one distinction that should always be keptinmind namely,thedistinctionbetween
primary facts and conclusions from those facts. Primary facts are facts which are observed by thewitnessesandprovedby
testimony- conclusions from those facts are inferences deduced by a process of reasoning from them.Thedeterminationof
primary facts is always a question of fact. It is essentially a matter for the tribunal whoseesthewitnessestoassess
their credibility and to decide the primary facts which depend on them. The conclusionsfromthosefactsaresometimes
conclusions of fact and sometimes conclusions of law."
In the case of Venkataswami Naidu & Co. v. Commissioner of Income Tax (5) the Court was dealing with an appeal inwhichthe
Jurisdiction of the HighCourtwaslimitedentertainingreferencesinvolvingquestionsoflaw.Thescopeofthis
jurisdiction was stated by Gajendragadkar J. thus
"If the point raised on reference relates to the construction of adocumentoftitleortotheinterpretationofthe
relevant provisions of the statute, it is a pure question of law and in dealing with it, though theHighCourtmayhave
due regard for the view taken by the tribunal, its decision would not be fettered by the said view. It is free to adoptsuch
construction of the document of the statute as appears to it reasonable. In some cases, the pointsoughttoberaisedon
referencemay turn out to be a pure question of fact and if that be so, the finding of fact recorded by the tribunalmust
be regarded as conclusive in proceedings under s.66(1) If, however, such a finding of fact is basedonaninferencedrawn
from primary evidentiary facts proved in the case, its correctness or validity is open to challenge in referenceproceedings
within narrow limits. The assessee or the revenue can contend that the inference has been drawn onconsideringinadmissible
evidence or after excluding admissible - and relevant evidence and, if the High Court is satisfied thattheinferenceis
the result of improper admission or exclusionof evidence, it wouldbejustifiedinexaminingthecorrectnessofthe
conclusion. It may also be open to the party to challenge a conclusion of fact drawn by the tribunal on thegroundthatit
is not supported by any legal evidence or that the impugned conclusion drawn from therelevantfactsisnotrationally
possible and if such a plea is established, the Court may consider whether the conclusion in question is notperverseand
should not, therefore, be set aside. It is within these narrow limits that the conclusions of fact recorded bythetribunal
can be challenged unders.66(1).Suchconclusionscanneverbechallengedonthegroundthattheyarebasedon
misappreciation of evidence."
It is within these narrow limits that this Court must consider this appeal.
What then are the primary facts and whataretheinferencesdrawnfromthem.Theevidencefailsintotwoseparate
1.Evidence in respect of the distribution at Pimbura and Sinhalagoda of P19 by the 2nd Respondent.
2.Evidence in respect of the publication of P18 and P19 by the 2nd Respondent.
At the outset the Election Judge has dismissed the case against the 3rd Respondent. I have alreadyheldthatechargeof
committing an election offence cannot be founded on P6 as it was published on 29.4.77 when therewasnoelection.Hehas
also field that there was an Election Office of the U.N.P. at Manana at all relevant times.Thisfindingisunimpeachable
for the reason that in documents P9 to P1 2A the 2nd Respondent himself has given this address to thePolicewhenapplying
for loudspeaker permits. His reason for giving that address was that it was easier for him to communicatewiththepolice.
The Police cannot communicate with him at an address at which hecannotbefound.The2ndRespondentwasdeliberately
stating an untruth on this point.
Counsel for the list Respondent conceded that the 2nd Respondent was an Agent of the 1st Respondentatthesaidelection.
The Election Judge has found that the 2nd Respondent distributed P19 atPimburaandSinhalagodaonthe20thJuly.The
evidence that was led to support the petitioner on this point was the evidence of Weragama and Gunaratnewhospokeofthe
distribution at Pimbura and Sinhalagoda respectively. The Judge holds thattheywerecontradictedbythepetitioneron
points that he considered material. As such he took the view that these contradictionswouldaffectthecreditofthese
witnesses "as they were party supporters" of the petitioner. From this it is obvious that had their evidence stood alonethe
Judge would not have hold against the 2nd Respondent on this charge. However, on further consideration he decidedtoaccept
this evidence. His reasoning goes thus :
"However on further consideration I have decided to accept their evidence for thereasonthatthereiscorroborationof
their evidence by the petitioner when he says that these two witnesses toldhimaboutthedistributionofP19whenhe
followed the motorcade."
Then he takes the next step. In reference to Weragama and Gunaratne he continues :-
'They both stated that they saw the 2nd Respondent hand over a bundle of this paper to some unknown person.Onthismatter
there' is obviously no corroboration by. the petitioner but once again it is not unreasonable to infer that itwasthe2nd
Respondent who was seen by the petitioner in the motorcade who handed overthepaperstounknownpersonsinthesetwo
Once again it is a statement of the petitioner that induced the Election Judgetosohold.Itistheevidenceofthe
petitioner, and that of the petitioner alone, that clinched this issue against the 2nd Respondent. But fortheevidenceof
the petitioner this charge would not have been proved. It is the evidence of one man thatcausedthischargetobeheld
true. This does not conform to the 4th conclusion of de Silva, J. in Premasinghe v. Bandara (1). How safe isittoacton
the evidence of the petitioner alone? The Election Judge's reasoning was that the petitioner is a truthful witness. Whatthe
petitioner spoke to of his own personal knowledge is very meagre and mayhave been true in the mainbuttherestofhis
evidence needs careful analysis as they consist solely of information given to him by others. Hemaintainedthathefirst
became aware of P19 at his own office at Manana on the 20th July, i.e., the day before the election. He said"itwasfirst
brought to (his) notice by Mr. Senanayake at about 7.30 or 8.30 a.m." He read it and he was very disturbedinmindbecause
the whole article was not damaging to his election. His Counsel then asked "what did you decide to do ?" Hisanswerwas"I
decided to go to the more populated parts and tell my supporters that there was nothing in this." That was how he came tobe
on the same road as a motorcade and as a result came upon the distribution ofP19fromamotorcade.Senanayakesaidin
evidence that he was given a copy of P19 by the 2nd Respondent on the 20th July when he was goingalongtheroadopposite
the U.N.P. Office at Manana. He then went straight to the C.P. office which was about 5chainsawayandgaveittothe
petitioner. The Judge has disbelieved this evidence of Senanayake. This rejection of Senanayake's evidence necessarilymeans
that the petitioner's evidence that Senanayake gave him P19 on the morning of the 20th July at the Manana Officemust also
be rejected. That is the reason why there is no express finding that P19 was distributed by the 2nd Respondentoppositethe
U.N.P. office at Manana. How then did the petitioner come to be on the road to Ayagama andGalaturethatdayfollowinga
motorcade? There is no other reason given in the evidence. In this state offactsthereisnobasisforacceptingthe
statement that the petitioner set out on the road to. Ayagama on the morningofthe20thresultinginhisfollowinga
motorcade. Senanayake's evidence that he received P19 from the 2nd Respondent at Manana and gave it that very morning tothe
petitioner has been disbelieved. The Judge could not then believe the petitioner that Senanayake gave it to him thatmorning
saying that he received it from the 2nd Respondent. The story that the petitioner set out to contradict itscontentscannot
also be accepted. Therefore the story that he followed a motorcade from which P19 was distributed from Manana toSinhalagoda
Let us however continue with the petitioner's tale of following a motorcade. He states he- was stopped at various points-by
supporters -and questioned about P19. He stated further "Mr. Weragama at Pimbura and Mr. Gunaratne at Sinhalagoda stoppedme
and showed me this. They had got this from the motorcade." According to whatWitnessestoldhimthe2ndRespondenthad
distributed it by stopping at various points on the way. Weragama states that he only spoke about P19 tothepetitionerin
the verandah of the Party Office. He did not show the petitioner the papernordidthepetitioneraskforit.Neither
Weragama nor Gunaratne said in evidence that they got it from the motorcade. They stated in evidence that theygotitfrom
others who are alleged to have got it from the 2nd Respondent when he got down fromthejeep.Nodoubtlegallythisis
distribution by the 2nd Respondent but when a villager speaks of getting it from a motorcade he means justthatandnota
nicety concerning agency in law. As far as Gunaratne is concerned it is a matter of doubt whether hegothiscopyfroma
bundle that came from the motorcade. His copy was obtained from the U.N.P. Party Office about 20 minutesafterthealleged
distribution. The petitioner was relying on something that these two witnesses told himthenbutthey,forreasonsbest
known to them, did not say they got it from the motorcade butbroughtinsomeunknown.personsintothepicture.The
petitioner appears to have been misled by these: two witnesses. In any event their credit is questioned for thereasonthat
they were party supporters but in the final analysis theirevidenceisacceptedbecausetheyarecorroboratedbythe
petitioner. I find some difficulty in accepting this reasoning. The petitioner himself is a party supporter and has beenfor
24 years. His credit should therefore suffer thesameinfirmityandhisevidencecannotgivecredencetothesetwo
witnesses. The judge's inference from this evidence cannot be upheld.
At this stage I wish to deal with evidenceof the petitioner with regard to P6 of 29.4.77. He states that this was givento
him on that date itself by Senanayake and he remembers this quite clearly because that date happened to be his birthday.But
Senanayake says he received it on the 30th April and not on 29.4.77. This throws considerable doubt on theevidenceofthe
petitioner. Senanayake has been disbelieved but the Election Judge has not stated whether or not he accepts thepetitioner's
evidence on this point. The Judgment is silent on this point. In his affidavit dated the 19th October, 1979,thepetitioner
stated that P6 had been sold and distributed on 29.4.77 at a meeting held at Manana junction which meeting wasaddressedby
Hon. J. R. Jayewardene. Later, when he was preparing for the inquiry, he found that this particular waswrongandthathe
had been misled by his witnesses. It is now alleged to be a reference to P7 of 19.3.77. In any event it is unlikelythatP6
was distributed in the electorate on the very date it was printed. I have set out the above matters not only to show thatit
is unsafe to act on the evidence of the petitioner alone but also to show that the Election Judge'sreasoningisuntenable
on the facts. We do not have the benefit of the Election Judge's view on these vital matters. Furthermore, the evidencewith
regard to the distribution of P19 is not one that satisfies the rule that proof must be beyond reasonable doubt. To be soit
must be of sterner stuff. l therefore hold that the 2nd Respondent did not distribute P19atPimburaandSinhalagodaand
acquit him of that charge.
I now come to the distribution of the Kalawana Janatha of 17.7.77 (P18) which the petitioner says he got fromSenanayakeon
18.7.77 when he got down from the platform at the Katalana meeting. This is the meeting at which a vocalist,bynameNanda
Malini, sang on the platform. Senanayake says he got P18 from the 2nd Respondent opposite the U.N.P. Office at Manana andhe
gaveit to the petitioner at the Katalana meeting. Senanayake hasbeen disbelieved. WitnessJohnSinghostatedthathe
received P18 from the 2nd Respondent at the U.N.P. Office at Manana. Hisevidencewassuch thatevenCounselforthe
petitioner was constrained to disown him. Counsel informed Court that he was not relying on his evidence to prove thecharge
but was merely leading his evidence as part of the transaction. Police Constable Ratnayake stated incross-examinationthat
there was no meeting on the 18th July 1977. In re-examination he repeated this. He was speaking from4Registerswhichhe
had before him. Counsel for the petitioner submitted that this witness was mistaken. In Court he showed usa'Registerfor
Rakwana which had an entry against 18.7.77. Counsel for petitioner stated that it was a reference to the meeting of the18th
July. On a perusal of the entry it was found to contain particulars germane to excisematters and we were not in aposition
to hold that it referred to an election meeting. We are therefore left with only the evidence of thepetitionerwhichdoes
not establish that P18 was distributed by the 2nd Respondent and that charge too fails.
I now come to the finding that the 2nd Respondent was the publisher of P18 and P19.That they containedfalsestatementsof
fact relating to the personal character of the petitioner is conceded. Suffice it to say that P19 along withP17,P20,P21
and P22 contain allegations of the meanest andthefoulestkindmeant,withoutdoubt,toaffectthereturnofthe
petitioner. They were also capable of influencing the result of the election. Whoever did it stooped to conquer.P6andP7
must be considered along with these papers. P18 and P19 were published on the 17th and 19th July, 1977,respectivelygiving
the petitioner no time whatsoever to contradict them or to take countermeasuresforhisbenefit.Therewasnodirect
evidence of publication but Counsel for the petitioner sought to prove this chargebycircumstantialevidence.Therewas
ample circumstantial evidence. All except P17 are printed at Sastrodaya, a press in Ratnapura which also printed some ofthe
1st Respondent's election literature (Vide receipt P3A of 19.7.77). All except P7 and P20 bear an-imprintstatingthatthe
2nd Respondent was the publisher. The 2nd Respondent denied this and tried to father it on one NimalChandrasiriAttanayake
whose name was on his list of witnesses. However he had to admit that personwasfromWennapuwaanddidnotresideat
Manana. He could not give a satisfactory explanation as to why heincludedthisman'snameinhislistofwitnesses.
Eventually he was driven to admit that he himself was the only person by that name at Manana. Section6oftheNewspapers
Ordinance (Chapter 180) required that the first name, surname and place of abodeoftheprinterandpublishershallbe
printed at the end of the newspaper. Section 52A and Section 68A of the Ceylon (ParliamentaryElections)OrderinCouncil
required that all election literature should bear on the face of it the name and address of the printerandpublisher.All
these publications contained such an imprint giving the, name of the 2nd Respondent as publisher. Residents ofMananawould
not have been wrong if they identified the 2nd Respondent as the publisher. The2ndRespondentwasknownthroughoutthe
electorate as the 1st Respondent's Chief Election Worker and voters of Kalawana would also have so identified him. Idonot
think any anonymous donor or donors of the 1st Respondent would have falsely used this imprint because that wouldonlyhave
served to defeat their purpose. He stated that he read only two papers of the Jana Aviya, and that too, onlytheheadlines.
His excuse was that he did not have the time to read the whole paper. P16 and P17 were published in April and March1977at
which time there was no election campaign. During an election campaign election literature is much soughtafterandavidly
read by all and sundry and time is always found for such reading. His plea of want of time cannot be accepted.P6published
on 29.4.77 bore an imprint giving the 2nd Respondent's name as publisher. P7 contained anarticlecontributedbyhim.He
first denied all knowledge of the Kalawana Janatha publications but had to admitatonestagethatsomeyouthleaguers
brought to his notice the fact that the Kalawana Janatha was being circulated in the electorate. This is aruralelectorate
spreading over a length of 72 miles. The total voting strength was 26964. It is well nighimpossibletobelievethatthe
private Secretary and Chief Election Worker of the 1st Respondent did not know of or read ofthesepaperswhichcontained
the party symbol, and pictures of the candidate he supported prominently displayed and whose literature wasallinsupport
of his candidate. The 1st respondent was the sole beneficiary of such propaganda. Such a statement is hard to acceptinthe
context of village life. They contained attacks on the petitioner and yet the 2nd Respondent pretends that he wasnotaware
of them and that he was not interested in reading them. His evidence has been justifiably disbelieved. He found himself ina
difficult situation in the witness box because he could not admit that he read any of the publications and thereforehadto
resort to half truths and untruths. I need not labourthepoint.TheElectionJudgehasrightlyheld-thatthe2nd
Respondent was guilty of charges 2, 3 and 4. The Election Judge has not found it possible to holdthatthe1stRespondent
had knowledge of these papers. Once again in the context of- village lifeand ordinary human conduct such a finding ishard
to accept. The 1st Respondent should consider himself a fortunate man that we are precluded frombeingJudgesoffactin
In view of the above I agree that charges 2 and 3 (publication of P18 and P19 respectively) and charge4havebeenproved
against the 2nd Respondent and he is thereby guilty of corrupt practiceintermsofSection58(1)(d)andofillegal
practice in terms of Section 58A of the Ceylon (Parliamentary Elections) Order in Council of 1946. Ithereforedismissthe
appeal with costs.
SAMERAWICKRAME, J. - I agree.
THAMOTHERAM, J. - I agree.