Legal Services and Laws of Sri Lanka
SLR - 1985 Vol.2, Page No - 77
JAYAKODY AND OTHERS
SHARVANANDA, C.J., WANASUNDERA, J., COLIN-THOME, J., ATUKORALE, J. AND
L. H. DE ALWIS, J.
S. C. ELECTION PETITION - APPEAL No. 4/84.
C.A. No. 3/83.
FEBRUARY 25, 26, 27 AND 28 AND MARCH 1, 4, 5, 7 AND 8, 1985.
Election Petition - Sections 80A, 80B, 80C of the Ceylon (Parliamentary Elections) Order-in-Council 1946 asamendedbyAct
No. 9 of 1970 - Rule .12 of the Parliamentary Election Petition Rules 1946 as amended by Act No.9of1970oftheThird
Schedule to the Order-in-Council - Non-joinder of parties - Security - Affidavit -Effectofdefectiveaffidavit-Full
particulars - Power of amendment.
The petitioner challenged the election of the 1st respondent to the Mahara seat at the ParliamentaryElectionheldonMay
18, 1983 on the grounds that -
1. The corrupt practice of undue. influence was committed by the 2nd and 3rd respondents as agents of the 1st respondent.
2. By reason of general intimidation (of which 14 instances were particularised of which three were acts ofundueinfluence
committed by Suranimala Rajapakse, S. D. Tennison Wimalaratne and Jayantha Rajapakse and threewereinstancesofassaults
and threats by several supporters of the 1 strespondent)orothermisconduct(likeorganisedimpersonationorother
circumstances like arrest and detention of polling agents and one Chief Organiser. Police and officials permittingentryof
unauthorised persons into polling booths and refusal of loudspeaker permits) the majorityoftheelectorsmayhavebeen
prevented from electing the candidate whom they preferred.
3. By reason of non-compliance with the provisions of the Ceylon (Parliamentary Elections) Order-in-Council 1946 relatingto
elections and with the principles of such provisions the resultsoftheelectionwereaffectedandunderthisground
reference was made to the fact that the votes counted in three ballot boxes did not tally with the numberofballotpapers
4. Full particulars of the several corrupt practices alleged had not been set out ofthefourpreliminaryobjectionsthe
Election Judge upheld three and dismissed the petition
(1) There was non-joinder of Suranimala Rajapakse, S. D. TennisonWimalaratneandJayanthaRajapakseasrespondentsas
required by section 80A (1) (b) of the Ceylon Parliamentary Elections (Order in Council) as amended by Act No. 9 of 1970.
(2) The security lodged was insufficient in terms of Rule 12 (2)oftheParliamentaryElectionPetitionRules1946as
amended by Act No. 9 of 1970 set out in the Third Schedule to the Order in Council.
(3) The affidavit was defective in terms of section 80B (d) of the Order in Council.
(a) The grounds on which an election can be avoided are set out in section 77 of the Order in Council.
There is a distinction between -charge- and -ground- in new Rule 12 (2) of the Third Schedule totheCeylon(Parliamentary
Elections) Order-in-Council 1946. There can be several charges under each distinct ground and such charges attractsecurity.
The first charge on each distinct ground attracts Rs. 5,000 as securityandeachadditionalchargeonthesameground
attracts Rs. 2,500.
(b) There is only one single ground of avoidance under section 77 (a) namely the preventionorlikelypreventingoffree
voting of which the components enumerated in the section are general bribery, general treatingorgeneralintimidationor
other misconduct or other circumstances. Thus the first charge, namely, general bribery attracts Rs. 5,000assecurityand
every additional charge of general bribery or general treatingorgeneralintimidationattractsRs.2,500.Alsoevery
allegation of misconduct and every distinct circumstance under other circumstances would constitute additional charges.
(c) Non-compliance with the provisions relating to the conduct of elections and the failure to conduct the election in
accordance with the principles of such provisions constitute aground of avoidance and there being one charge on this ground
the security under this head would be Rs. 5,000.
(Wanasundera, J. dissenting)
(d) The Election Judge applied the right principles of computation ofsecurityandcorrectlydecidedthatthesecurity
required was Rs. 52,500 whereas the security. deposited was only Rs. 50,000.,
(e) Rule 12 (3) of the Rules set out in the Third Schedule stipulates that no further proceedingsshouldbeheardonthe
petition if the security required is not furnished. Hence the dismissal of the petition on this ground by the ElectionJudge
Held further (unanimously)
(2) Suranimala Rajapakse, S. D. Tennison Wimalaratne and Jayantha Rajapakse were notallegedtobeagentsofthe1st
respondent nor has it been alleged that the corrupt practice alleged to havebeencommittedbythemwasdonewiththe
knowledge or consent of the 1 st respondent. Proof of the said corrupt practice is not byitselfsufficienttoavoidthe
election. It has to be further established that the majority of the electors were prevented from electing the candidatewhom
they preferred` by the said acts of corrupt practice. Hence they neednothavebeenjoinedasrespondents.Onlythose
persons should be joined as respondents to the petition whose acts by itself render the election void. There must be anexus
of cause and effect, between the offence complained of and the prayer for the avoidance of the election.
(3) The petitioner cannot be expected to mention the names of persons whom he cannot identify orwhosenameshedoesnot
know. Hence he cannot be faulted for not naming the offender in regard to the assaults and threats.
(4) Although the affidavit accompanying the petition was defectiveinthatitincludedavermentsbasedoninformation
received from others the petition should not havebeendismissedonthisgroundofdefectintheverification.The
allegation of corrupt practice cannot be ignored merely on this ground of defect in the verification because the form ofthe
mandatory affidavit is not prescribed and it is not a requirement of law that the source of information or the ground ofthe
deponent's belief should be set out Hence the dismissal of the petition on the ground that the affidavit was bad is wrong.
(5) The petitioner has furnished as full particulars as he could. If more particulars wereneededintheopinionofthe
Judge recourse could be had to the Judge's power of amendment under section 80C (i) of the Order in Council.
Case referred to
(1) In re Fred E. de Silva f 1949) 51 NLR 55, 57.
APPEAL from the judgment of the Election Judge.
Nimal Senanayake, P.C., with Saliya Mathew, Nimal Siripala de Silva, K. Balapatabendi, Sanath Jayatilleke, Mrs. A. B.
Dissanayake, L. M. Samarasinghe, and Miss A. D. D. N. Telespha, for the petitioner-appellant.
George Candappa, P.C. with Ben Eliyathamby, Daya Pelpola and Ronald Perera for 1 st respondent.
2nd respondent absent and unrepresented.
K. N. Choksy, P C. with Daya Pelpola, Lakshman Perera and Ronald Perera for the 3rd respondent.
S. W. B. Wadugodapitiya, Additional Solicitor-General with N. Y Cassie Chetty -S. C. for the 4th respondent-respondent.
July, 8, 1985.
SHARVANANDA, C. J.
The petitioner-appellant filed an election petition under the provisions of Article 7 61 E of the- Constitution-asamended
by the 5th Amendment to the Constitution read together with sections 79,80,80Aand80BoftheCeylon(Parliamentary
Elections) Order-in-Council, to set aside the by-election to theMaharaElectoralDistrictheldon18.5.1983.The1st
respondent was, at the election, returned by a majority of 45 votes.
The petitioner-appellant alleged that the election of the 1st respondent was void. in the grounds that
(a) The corrupt practice-of undue influence was committed by the agents of the 1st respondent -
(b) By reason of general intimidation or other misconduct or other circumstances the majority of the electors mayhavebeen
prevented from electing the candidate whom they preferred
(c) Non-compliance with the provisions of the Ceylon- (Parliamentary Elections) Order-in-Council 1946, relating toelections
and the failure to conduct elections in accordance with the principles of such provisions, which non-compliance affectedthe
results of the election.
In his petition, he had joined as parties the 2nd and 3rd respondents whoheallegesasagentsofthe1strespondent,
committed the corrupt practice of undue influence. In paragraph 3(a) as against the 2ndrespondent,hehasallegedthree
distinct acts of undue influence committed on three different persons who are voters. In paragraph 3B,hehasalleged,as
against the 3rd respondent, two separate acts of undue influence on the same person who is a voter.
Paragraph 4A. contains an allegation, that the majority of electors may have been prevented from electing the candidatewhom
they preferred by reason ofgeneralintimidationorothermisconductorothercircumstances.Inregardtogeneral
intimidation, the petitioner has furnished 14 items or instancesofintimidation.Inregardto"othermisconduct",in
paragraph 4 B, the petitioner has given 41 cases of impersonation and has stated that thesaidactsofimpersonationand
numerous other acts of impersonation of electors were organised by the 1strespondent's:supportersandfacilitatedby
several police officers and members of the official staff at polling stations. In paragraph 4 C, the petitioner has 'setout
matters that constitute "other circumstances". In paragraph 4C(i) it is alleged that 31pollingagentsoftheSriLanka
Freedom Party candidate attached to 12 polling booths were arrested by the Veyangoda' and Nittambuwa Police ontheelection
day at about 4 a.m. and held in custodyfor several hours after the polling had commenced until pre-noonandtherebythey
were unable to perform :their functions that their detention facilitated impersonation,demoralisedthesympathisersof
the S.L.F.P. and created the impression that government machinery could be used- against persons sympathetic to orespousing
the S L.F.P. cause. In paragraph 4C(ii), the petitioner, alleges that applications forloudspeakerpermitstoholdthree
public meetings of the S.L.F.P. were refused by the police officers anxious to support the U.N.P. In paragraph 4C (iii)(a),
the petitioner complains thatpoliceofficersthroughouttheelectorateharassedandthreatenedtheS.L.F.P.party
organisers and supporters throughout the election campaign and on election day, that they permitted unauthorisedpersonsto
enter polling booths and to intimidate electors in the polling queues (4C) (iii)(b),thattheyunlawfullyarrestedthe
Chief Organiser for the S.L.F.P. in Uruval Peruwa area, one Reggie Ranatunga, on 5.5.83, and heldhiminunlawfulcustody
and that this was done in order to prevent him fromcarryingouthisfunctionsandtodissuadeotherorganisersand
supporters of the S .L .F P. - 4(C) (iii) (c).
Finally in paragraph 5, the petitioner makes the allegationthattherewasnon-compliancewiththeprovisionsofthe
Elections Order-in-Council, which non-compliance has affected the results of the election. Three,instancesaresetout-a
ballot box from Netbuduwa polling booth contained 4,9 ballot papers more than the number issued at the pollingstation a
ballot box from Ihala Karagahamuna polling booth contained one ballot paperlessthanthetotalissuedatthepolling
station a ballot box from Kahatana polling booth contained one ballot paper less thanthetotalissuedatthepolling
The petitioner filed his own affidavit to verify the allegations of fact stated by him inhispetition.HedepositedRs.
50,000 as security.
At the hearing of the election petition four preliminary objectionswereraisedonbehalfofthe1st,2ndand3rd
1. Sufficient security has not been given by the petitioner.
2. Persons required to be joined as respondents to the petition have not been joined.
3. The petition has failed to set out full particulars of the several corrupt practices alleged by the petitioner.
4. The affidavit filed by the petitioner is inadequate.
The Election Judge upheld the preliminary objections
(a) That sufficient security has not been given by the petitioner,
(b) That persons required to join as respondents to the petition have not been joined,
(c) The affidavit filed by the petitioner isdefective,andhasdismissedtheElectionPetition.Thepetitionerhas
preferred this appeal from the said order of dismissal.
I shall first deal with the holding of the Election Judge that the petitionerhasfailedtojoinasrespondenttohis
petition persons required to be joined in terms of Section 80 A (1)(b) oftheCeylon(ParliamentaryElections)Order-in-
Council, 1946 and that non-compliance with the requirement invalidates the entire petition. (All references in thisjudgment
to sections are references to sectionsintheCeylon(ParliamentaryElections)Order-in-Council1946)Section80A(1)
provides "A petitioner shall join as respondents to his election petition
(a) where the petition, in addition to claiming that the election of all 'or any of the returned candidates isvoidorwas
undue, claims a further declaration that he himself or anyothercandidatehasbeendulyelected,allthecontesting
candidates, other than the petitioner, and where no such further declaration is claimed, all the returned candidates , and
(b) any other candidate or person against whom allegations of any corrupt or illegal practice are made in the petition."
Section 80A (1) in clear premptory terms obligates the petitioner to joinasrespondentstohispetitionnotonlythe
returned candidate but also any other candidate or person against whom allegations of corrupt or illegalpracticearemade
in the petition. The petitioner has accordingly- in thispetitionjoinednotonlythe1strespondent,thereturned
candidate, but also the 2nd and 3rd respondents who he alleges have committed the corruptpracticeofundueinfluenceas
agents of the 1st respondent. He has specifically pleaded that the election of the 1st respondent is void onthegroundof
corrupt practice- of undue influence committed by the 2nd and 3rd respondents, agents of the 1st respondent.
In paragraph 4A the petitioner has further alleged that by reason of general intimidation the majority of electorsmayhave
been prevented from electing the candidate whom they preferred and that hence the election of the 1strespondentwasvoid.
He has set out fourteen instances of general intimidation. Paragraph 4A (iv), (viii) and (ix) are threesuchinstances.In
each of these the petitioner mentions the names of the persons alleged to have committed the acts stated therein
Name Date PlaceAct
4 (a) (iv)
Suranimala 18.5.83At Weboda near Assaulting Appuhamillage Somasin
Rajapakseat about the polling booth of who was
2.30 p.m.Weboda North an organiser of the Sri Lanka
North Freedom Party in the
presence of several electors, to
instil fear into the minds of
several electors who were present
and to place them under duress.
4 (a) (viii)
S.D.Tennison 18.5.83At Enderamulla Using force on one Ratnasena, a
Wimalaratnesupporter of the SLFP. The attack
UNP supporteron the said Ratnasena was
and anotherdirected to intimidate and to UNP
UNP supporterinduce electors
favourable to the Sri Lanka
Freedom Party to
refrain from voting.
4 (a) (ix)
JayanthaAt Buthpitiya Malwathu Jayantha Rajapakse fired two
Rajapakse and18.5.83Hiripitiya shots killing one Nimal Premasiri
Several other Public Roada SLFP supporter standing very
Supporters of theclose to Wijaya Kumaranatunga the
1st respondent SLFP candidate in order to
instill fear in to the minds of
several electors present and to
place them under duress and to
prevent them from voting. The
other supporters of the 1st
respondent who came with Jayantha
Rajapkse threatened to ' assault
with clubs and swords the
supporters of the SLFP
candidate in order to instil fear
into the minds of several
electors present and to place
them under duress and to prevent
them from voting.
It was not the case of the petitioner and he has not averred that the aforesaid acts of undueinfluencewerecommittedby
agents of the 1st respondent or with the knowledge or consent of the 1st respondent.
It was the contention of counsel appearing for the 1st, 2nd and 3rd respondents that since these itemsdiscloseallegations
of corrupt practice of undue influence against persons other than the respondents cited, theyshouldhavebeenjoinedas
respondents to the petition and since the petitioner has failed to comply with the mandatory provisionofsection80A(1)
(b) the petition was bad and should be rejected.
The Election Judge.has accepted this contention that the aforesaid (i) Suranimala Rajapakse, (ii) S. B. TennisonWimalaratne
and (iii) Jayantha Rajapakse, referred to in paragraph 4(a) of the petition,shouldhavebeenjoinedasrespondentsas
allegations of corrupt practice have been made against them in the petition.
In appeal, Mr. Senanayake contended that the Election Judge has misdirected himself in construing theword"allegation"in
paragraph80A (1) (b) to mean an assertion or averment. According to the ElectionJudgeeverypersonagainstwhomitis
asserted or averred for whatever purposethat he had committed a corrupt or illegal practiceinthepetitionhastobe
joined as a respondent. Mr. Senanayake has sought to put a restricted interpretation upon. the word 'allegation', insection
80A (1) (b). According to him section 80A (1) (b) should be read as ""any other candidate or person against whomallegations
of any corrupt or illegal practice such as would avoid the election are made inthepetition.Hesubmittedthatinthe
context of election petitions the meaning of the term 'allegation' is well settled :-everyallegationwhich,ifproved,
would suffice to avoid an election on any of the grounds of avoidance enumerated insection77,shouldbetreatedasa
charge within the meaning of Rule 12."" (Per Wimalaratne, J. in Election Appeal 1, 2 and 3 of 1977). He urged thattheword
"allegation" in section 80A (1) (b) should be construed in relation to the concept of 'charge'. He referred to thewordsin
section 83 (1), proviso (a) -
"an election petition questioning the return or the election upon the ground of a corrupt practice and specificallyalleging
. . ." and the words in section 83 (2) "an election petition presented in due time may, for the purposeofquestioningthe
return of the election upon an allegation of corrupt or illegal practice'' and submitted thatthe'allegation'insection
80A (1) (b) is referable to a corrupt practice which avoids the election.
Mr. Senanayake submitted that only a corrupt practice committed in connection with the election bythecandidate,orwith
his knowledge or consent, or by any agent of the candidate will invalidate an election - section77c,andthatacorrupt
practice committed by any other. person without the knowledge or consent of the candidate will not be a ground foravoidance
of an election and will not be sufficient to constitute a charge.Hedrewattentiontosection80Bwhichrequiresan
election petition to contain a concise statement of the material facts on which the petitioner relies and to setforthfull
particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible ofthenamesof
the parties alleged to have committed such corrupt practice and date andplaceofthecommissionofsuchpractice.He
elucidated that by the averments in paragraph 4 of the Election Petition, the petitioner was seeking toavoidtheelection
on the ground that by reason of general intimidation or other misconduct the majority of electorsmayhavebeenprevented
from electing the candidate whom they preferred. Section 77 of the Order-in-Council provides that -
"The election of a candidate as a Member shall be declared to be void onanelectionpetitiononanyofthefollowing
grounds which may be proved to the satisfaction of the Election Judge, namely -
circumstances, whether similar to those before enumerated or not, the majority of electors were or mayhavebeenprevented
from electing the candidate whom they preferred......
According to him 'general intimidation' consists of a series or aggregation of acts of undue influence, and that each oneof
the allegations in paragraph 4 (a) of the petition may constitute acts of undue influence in termsofsection56(1).He
admitted that each one of the acts referred to in paragraph 4 (a) in the petition constituted a corruptpractice,interms
of section 58(1) (b). He urged that the several acts of undueinfluencepleadedinparagraph4(a)generated'general
intimidation' and that they had the consequence of preventing the majority of electors from electing the candidate whomthey
preferred (section 77 (a)). He submitted that to establish the grounds set out in section 77 (a) itwasnotsufficientto
establish individual acts of undue influence. The petitioner had to establish that the effect of the severalactsofundue
influence was to prevent the majority of electors from electing a candidate whom they preferred. His casewasthatwhena
petitioner seeks to found his petition on the ground of 'general intimidation' under section77(a),heisnotcharging
anybody with the commission of any corrupt practice, though he incidentally had to prove a number of acts of undueinfluence
to establish that ground under section 77 (a) It was therefore not necessary for him to join the personswhohadcommitted
the acts of intimidation. Mr. Senanayake's submission in short, was that section 80A (1) (b)requiresthatthepetitioner
should join as parties to the election petition only the returned candidate and any agent who commits a corrupt practiceand
any other person who commits a corrupt practice with the knowledge or consent of the candidate.- According to him section80
A does not require the joining of persons as respondents whose alleged acts of corrupt practice willnotbeagroundfor
invalidating the election. He pointed out that if the interpretation that he contends for is not given to section 80A(1)(b)
then great inconvenience will be caused. He gave as illustration the case of general intimidation orgeneralbriberywhere
fifty instances of such corrupt practice are alleged in the petition. The petitionerwouldthenhavetojointhefifty
persons as respondents to the petition and the proceedings will become unmanageable.Counselfortherespondentsonthe
other hand argued that the legislature has used the word 'allegation' in the sense of an 'assertion' or 'averment'andthat
is the meaning that should be given to the word'allegation'insection80A(1)(b).Theysubmittedthatsincethe
petitioner had in paragraph 4 (a) (iv), (viii) and (ix) made allegations that Suranimala Rajapakse, Tennison Wimalaratneand
Jayantha Rajapakse had committed the corrupt practices of undue influence, they should have been joined as parties.
Mr. Choksy submitted when a charge of general intimidation is alleged in a petition and several instances are relied uponto
substantiate the charge, the court has to examine whether any such instancedisclosesanallegationofcorruptpractice
against any person. He referred to the dual functions of an Election Judge at the conclusion of the trial (a)hewillhave
to make a determination whether the election was void or not and also (b) make a reportwhetheranycorruptpracticehad
been committed by the candidate or with his knowledge and consent or by his agent, and whether any person had been provedat
the trial to be guilty of any corrupt or illegal practice (Sections 81 and 82). He said that the hazard of being reportedto
the President rendered obligatory on the petitioner the joining as respondents to his petition all personsagainstwhomhe
was making allegations of any corrupt practice in the petition (Section 80A(1) (b)).
The Election Judge has agreed with Counsel for the respondents that the term 'allegation' in section 80A(1) (b)isusedin
the sense of 'assertion' or 'averment' and has held that in deciding this question whether a person should bemadeaparty
or not, one has to look at the petition to see whether it discloses any allegation of corrupt practiceagainstsuchperson
and that the court cannot be controlled by the purpose or reason given by thepetitionerformakingspecificchargesof
corrupt practice of undue influence in the petition, whether to establish a charge of corrupt practicebyanagentorto
establish general intimidation such as may have prevented the, majority of electors from electingthecandidatewhomthey
preferred. According to him whenever there are allegations that persons exercised undue influence then such personshaveto
be impleaded as respondents, irrespective of their nexus to the relief claimed by the petitioner.
Section 80A(1) (b) cannot be looked at in isolation. One has to appreciate the scheme relating to election petitions to give
the correct answer as to who are the persons who ought to be joined as respondents in terms of that section.
Section 77 spells out the grounds for the avoidance of an. election on an election petition.
Section 77 (a) provides' that an election shall be declared void on the ground that by reasonofgeneralbribery,general
intimidation or other misconduct, the majority of electors were or may have been prevented from electing thecandidatewhom
Section 77 (c) provides that the election of the candidate shall be declared void on an election petition onthegroundof
corrupt practice committed in connection with the election by the candidate or with his knowledge or consent or by anyagent
of the candidate.
Section 79 states as to who may present: an election petition.
Section 80 sets out the relief which the petitioner may claim on an election petition.
Section 80A sets out as to who shall be joined as respondents to the election petition.
In my view section 80A is related to section 77, which sets out the grounds for the avoidance of an election. Thepetitioner
claims that the election is void will have to base his claim on any one or more of the grounds set out in section 77 andfor
the purpose he will have to cite as respondents to his petition persons whose conduct constitutesthegroundofavoidance
set out in section 77 and for which the candidate is liable. Thepetitionerisonlyinterestedinhavingtheelection
declared void on the charges made by hire. The person joined as respondent and theactwhichisallegedtovitiatethe
election must have a nexus to the relief sought. Thus when the election of the 1 st respondent is soughttobeavoidedon
the ground of corrupt practice of undue influence committed by the agents of the 1strespondent(1)S.Rajakaruna,(2)
Ranil Wickremasinghe, they had to be joined as 2nd and 3rd respondents respectively. If the petitionersucceedsinproving
any one of the corrupt practices referred to in paragraph 3 of the petition he succeeds inhiselectionpetitionandthe
election will be declared void. The corrupt practice, if established committed by either 1 st(thereturnedcandidate)or
the 2nd or 3rd respondents (the agents of the returned candidate) will be sufficient to avoid the election.
On the other hand in paragraph 4 of this petition, the petitioner has also stated that the election of the1strespondent
is void on the ground that by reason of general intimidation . . . . . the majority of electors may have been preventedfrom
electing the candidate whom they preferred. The petitioner then particularised in paragraph 4(a)fourteenactsofundue
influence which resulted in. the general intimidation complained of. Of these fourteen acts, threehavebeencommittedby
the 2nd respondent, two by the 3rd respondent and four by the 1 st respondent himself, then two by unnamed supporters ofthe
1 st respondent, three by Suranimala Rajapakse, Tennison Wimalaratne and Jayantha Rajapakse, third partieswhoareneither
the agents of the 1 st respondent nor persons who had committed the impugned acts with the knowledge or consent of the1st
respondent. The acts of corrupt practice alleged to have been committed by the last categoryofpersonsviz:Suranimala
Rajapakse, Tennison Wimalaratne and JayanthaRajapakse,cannotbythemselvesconstitutegroundsofavoidanceofthe
election. In order to, succeed in his petition, the petitioner has got to prove a further ingredient vizthatthemajority
of electors may have been prevented from electing the candidate whom they preferred, in ordertosucceedinhiselection
The corrupt practice referred to in section 77 (c) has a consequence different from that of the corrupt practice that maybe
exhibited by general intimidation under section 77 (a). If it is proved that a corrupt practice hadbeencommittedbythe
returned candidate or an election agent or by any other person with the knowledge or consent of the returned candidate,then
the Election Judge has to declare the election void. But if the corrupt practice had been committed by apersonotherthan
the persons mentioned in 77 (c), then it must be further established that majority of electors thereby were or may havebeen
prevented from electing the candidate whom they preferred, for the Election Judgetodeclaretheelectionvoid.Inthe
absence of an allegation that general intimidation has affected the result of the election, pleading of the severalactsof
undue influence which individually or cumulatively constitute general intimidation is irrelevant to the relief prayed forby
a petitioner under section 80. The allegations in the petition have to be related to the relief sought and accordingly inmy
view only those persons need be joined as respondents against whom charges of corrupt practicevitiatingtheelectionare
made in the petition.
Section 82 relating to the report of the ElectionJudgedrawsthedistinctionbetweenthetwocategoriesofcorrupt
practice, founded on the kind of impact it has on the determination under section 81.
(a) corrupt practice committed by, or with the knowledge and consent of any candidate at the election,orbyhisagent-
this affects the validity of the election.
(b) the corrupt practice committed by other persons -.this will not vitiate the election.
In my view this distinction between the two categories of offenders in section 82 is based on. the fact thatallthosewho
are mentioned in section 82 (a) would be necessary parties to the election petition in terms ofsection80A(1)(b),while
the other class of offenders referred to in section 82B would not benecessarypartiesandneednotbejoinedinthe
election petition and their non-joinder will not affect the proper constitution of the election petition.
Persons who are not necessary parties and therefore have not been joined as parties, will, under the proviso tosection82,
before being reported, be given an opportunity of being heard and of giving and calling evidence to show why they shouldnot
be so reported.
But it was argued that, had they been parties to the election petition, they wouldhavehadtheopportunityofshowing,
before the conclusion of the trial that they are not guilty of any corrupt practice and they should notbeplacedundera
handicap, as they would be, of having to show cause under the proviso to section 82aftertheyhavebeenprovedwithout
their being heard at the trial, to have been guilty of a corrupt practice. I see the force ofthissubmission.Butinmy
view, it has to yield to the argument of inconvenience urged by Mr. Senanayake. This submission willinvolvehavingtrials
within the election trial and the proceedings will become unmanageable. The main trial will miss its focusandtheparties
being not interested in the main trial will have to be helpless spectators of the trial. I prefer the constructionurgedby
Mr. Senanayake as to who should be joined as parties under section 80A(1)(b)especiallyastheprovisotosection82
provides as required by principles of natural justice for an opportunity of being heard, to those whohadnotbeenjoined
before they are reported.
The Election Judge is in: error in holding that all those againstwhomallegationsofcorrupt.practicearemade,for
whatever purpose, have to be joined as respondents to the petition. In my view onlythosepersonswhoseallegedactsof
corrupt practice will, in terms of section.
'77(c), vitiate the election will have tobejoinedasrespondentsinadditiontothereturnedcandidate.Onthis
construction of section 80A (1) (b) 'any other candidate' referred to in that section will mean any othercandidatewhois
charged in the election petition with having committed a corrupt practice such aswouldavoidtheejectionintermsof
section 77(e). The reference to such candidate is significant. Any allegation against him of acorruptpracticemusthave
some relevancy to the prayer for the avoidance of the election.
In paragraph 4 (a) of his petition the petitioner alleges that by reason of general intimidationthemajorityofelectors
may have been prevented from electing a candidate whom they preferredandhassetoutfourteeninstancesoritemsin
substantiation of the ground of general intimidation. Paragraph 4 - (iv), (viii) and (ix) refer to three such instancesin
each of these the petitioner mentioned the names of the persons who are alleged to have committed theactsstatedtherein.
In paragraph 4 (a), (i) and (x) the petitioner has not specifically named any offender but has stated "assaultsandthreats
by several supporters of the 1 st respondent." The petitioner cannot be expected to mention thenamesofpersonswhomhe
cannot identify or whose names he does not know. It is necessary to reproduce paragraphs 4 (a) (iv), 4 (a) (viii) and4(a)
(ix), to appreciate the question in issue :
4 (a) (iv)
Name Date PlaceAct
Suranimala 18.5.83At Weboda near Assaulting Alahakoon
Rajapakseat about the polling boothAppuhamillage Somasiri who was
2.30 p.m.of Weboda Northan organiser of.the Sri Lanka freedom
Party in the presence of several
electors, to instil fear into the
minds of several electors who were
present and to place them under
4 (a) (viii)
S.D.Tennison 18.5.83At Enderamulla Using force on one Ratnasena a
Wimalaratnesupporter of the SLFP. The attack on
UNP supporterthe said Ratnasena was directed to
and anotherintimidate and to UNP supporter induce
UNP Supporterelectors favourable to the Sri Lanka
Freedom Party to refrain from voting.
JayanthaAt ButhpitiyaJayantha Rajapakse fired two shots
Rajapakse and18.5.83Malwatukilling one Nimal Premasiri a SUP
Several other Hiripitiya publicsupporter standing veryclose to Wijaya
supporters of the 1st Road Kumaranatunga
respondent the 1st the SLFP candidate in order to
respondent instil fear into the minds
of several electors present and to
place them under duress and to prevent
them from voting. The other supporters
of the list respondent who came with
Jayantha Rajapakse threatened to
assault with clubs and swords the.
supporters of the SUP candidate in
order to instil fear into the minds of
several electors present and to place
them under duress and to prevent them
The aforesaid three persons namely Suranimala Rajapakse, S. D. Tennison Wimalaratne and Jayantha Rajapakse werenotalleged
to be the agents of the 1 st respondent nor has it been alleged that the corrupt practice alleged to have beencommittedby
them was done with the knowledge or consent of the 1 st respondent. Proof of the saidcorruptpracticeisnotbyitself
sufficient to avoid the election. It has to be further established that the majority oftheelectorswerepreventedfrom
electing the candidate whom they, preferred by the said acts of corrupt practice. Hence in my view they neednothavebeen
joined as respondents. In my view, only those persons should be joined as respondents to the petition, whose actsbyitself
render the election void. There must be a nexus of cause and effect between the offence complained of and the prayer forthe
avoidance of the election.
Objection regarding security
that the security shall be an amount not less than Rs. 5,000 in Elections) Order-in-Council 1946 provides that -
"that the security shall be an amount not less than Rs. 5,000 in respect of the 1 st charge constituting a distinct ground
on which the petitioner relies, and a further amount of not less than
Rs. 2,500 in respect of each additional charge constituting any such ground".
In the election appeals S.C. 1, 2 and 3 of 1977, it was held by a majority of four Judges constituting theDivisionalBench
of five Judges that -
(a) There is a distinction between 'charge' and 'ground' in the new Rule 12 (2). A 'charge'isnotthesamethingasa
'ground' and cannot be equated with it.
(b) The grounds on which an election can be avoided are found in section 77 of the Order-in-Council.
(c) There can be several charges under each distinct ground and such charges attract security. The 1 stchargeonanyone
distinct ground attracted Rs. 5,000 as security and each additional charge on the same ground attracted Rs. 2,500.
This view of the majority was accepted in S.C. Appeals No. 2 & 3 of 1978 (ElectionPetitionNo.10/77-Avissawella.)The
Supreme Court agreed with the observations of Wimalaratne, J. that -
"every allegation which, if proved, would suffice to avoid an election on anyofthegroundsofavoidancecontainedin
section 77 should be treated as 'a charge within the meaning of Rule 12, and each such charge attracts security".
and with the observation of Samarawickrema, J. that -
"the word 'charge' has been applied to any allegation against the validity of an election".
I agree with the Election Judge that there is onlyonesinglegroundofavoidanceundersection77(a),namelythe
prevention or likely prevention of free voting: That each component enumerated in section 77 (a) namely -
"general bribery, general treating or general intimidation, or other misconduct,' or other circumstances. . . . . . ."
which is alleged to have resulted in the majorityofelectorsbeingpreventedfromelectingthecandidatewhomthey
preferred would constitute a charge. The first charge, namely 'general bribery' attracts Rs. 5,000everyadditionalcharge
of general bribery or general treating or general intimidation would attract Rs. 2,500.
I agree with Wimalaratne, J. "s observation in the above case that -
"Under the category of 'other misconduct' there canbemorethanonecharge.Soalsounderthecategoryof'other
circumstances' each distinct circumstance specified in the petition will attract security . . . . . . 'othermisconduct'or
other circumstances' would constitute at least two othor charges."
It would appear from the material facts given in thepetitionmorethanonetypeof"othercircumstances"or"other
misconduct" may be disclosed and each distinct type will constitute a separate charge attracting security.
For a proper appreciation of the computation of the total amount of security that had to be deposited bythepetitionerit
is relevant to reproduce that part of the petition containing the allegations made by the petitioner in his petition forthe
avoidance of the election.
"3. And your Petitioner says that the election of the 1 st respondent is void on the ground that -
(a). the corrupt practice of undue influence was committed by an agent of the 1 st respondent - Sarathchandra Rajakaruna the
2nd respondent above-named.
(i) 18.5.83At-about Near ButhpitiyaBy intimidating W. A. Chandrasena Weerasuriya
8.30 a.m.Polling Boothan elector by threats of bodily injury to
induce Chandrasena to refrain from voting and
turned him away from the polling booth at
Buthpitiya. Later he went back to vote but
his vote had been cast by an impersonator
18.5.83At about Near ButhpitiyaBy intimidating U. B. Kumara Pathirana an
7.30 a.m.Polling boothelector by threatening to assault Pathirana
with clubs and iron bars in order to compel
him to refrain from voting and forcing him to
go away without voting.
18.5.83At about Near ButhpitiyaBy intimidating D. K. Piyasena a voter at
10.00 a.m. Polling boothMahara Electorate by threatening to assault
him with clubs and iron bars to compel him to
refrain from voting and forcing him to go
away without voting. He came back to the
polling booth and voted later.
(B) The corrupt practice of undue influence was committed by an agent of the 1 st respondentnamelyRanilWickremasinghe,
the 3rd respondent above-named on -
(i) 18.5.83 At about At Weboda near the By exhorting about thirty persons who
2.30 p.m.polling booth of were with him to hit, kill, cut tyres and
Weboda North to catch the blue T- shirt fellow and not
let him go (referring to Alahakoon
Appuhamillage Somasiri who was the chief
organiser for the Narangodapaluwa for
SLFP). The aforesaid acts of the 3rd
respondent were in order to prevent the
free exercise of the franchise by several
electors who witnessed the incident by
placing them under duress.
(ii) 18.5.83At about Near the KadawataBy unlawfully using force on
3.30 p.m.Police Station onAlahakooAppuhamillage Somasiri who was
the Kandy Road the Chief SUP The Kandy Road organiser
for the Narangodapaluwa (Mahara
Electorate) and by grabbing Alahakoon"s
hand and dragging him saying "Ado Pariah,
we intend to teach you politics." The
aforesaid acts of the 3rd respondent were
in order to prevent the free excercise of
the fanchise by several electors who
witnessed the incident by placing them
under duress. Alahakoon Appuhamillage
Somasiri complained to the Kadawata
Police who have deliberately falsified
the entry and in fact deleted the words
"Ado Pariah" and refused to take down the
complaint referred to at 3 (B) (i)and
ordered Alahakoon Appuhamillage Somasiri
to quit the Mahara Electorate promptly.
4. (A) And your petitioner says that the election of Kamalawarna Kumarasinghe Jayakody is void on the ground thatbyreason
of general intimidation or other misconduct or other circumstances the majority of electorsmayhavebeenpreventedfrom
electing the candidate whom they preferred The petitioner says that general intimidation resulted from
Impersonation of the At the polling booth of Voters No. following voters
Impersonation of theAt the polling booth of Voters No.
(i) Assaults and18.5.83 at about 2.30p.m. At Weboda North in closeAssault on several electors who were with
threats of severalproximity to the Weboda Alahakoon Appuhamillage somasiri, who was
supporters of the 1st North polling an organizer of SLFP and who was with
respondentseveral electors, using hands and clubs
and threatening to give the same treatment
to those who were known to be SLFP
(ii) Ranil Wickremasinghe 18.5.83 at about 3.30 p.m.At Kadawata on the KandyGrabbing the SLFP organizer Alahakoon
above named by himselfRoad near the KadawataAppuhamillage Somasiri by the hand and
Police Stationdragging him when he was in the company of
(iii) Ranil Wickremasinghe18.5.83 at about 2.30 p.m.At Weboda near the pollingIn an organized gang exhorting people in
and other persons booth of Weboda North his gang to hit kill and cut tyres and
grab the T-shirt fellow to instill fear
into the minds of several electors present
and to place them under duress.
(iv) Suranimala 18.5.83 At Weboda near the pollingAssaulting Alahakoon appuhamillage
Rajapakse at about 2.30 p.m.booth of Weboda North somasiri who was an organizer of the SLFP
in the presence of several electors who
were present and to place them under
(v) Saratchandra Rajakaruna At Buthpitiya polling booth By intimidating W.A. Chandrasena
the 2nd Respondent18.5.83 Weerasuriya and several other electors
above-named and other approaching the polling booth with threats
persons on his behalf and and preventing those electors from voting
at his instigationby threatening to assault with clubs and
iron bars and forcing them to go away
(vi) Sarachandra Rajakaruna At Buthpitiya polling booth By intimidating U.G. Kumara pathirana an
the 2nd respondent18.5.83 elector and several other electors
above-named and other preventing with threats of bodily injury
persons on his behalf and and preventing them from voting by
at his instigationthreatening to assault with clubs and iron
bars and forcing him to go away without
(vii) Sarachandra 18.5.83 At Buthpitiya polling booth By intimidating D.K. piyasena an elector
Rajakaruna the 2ndand several others electors present with
respondent above-named andthreats of bodily injury by threatening to
other persons on his behalf assault them with clubs and iron bars and
and at his instigationforcing him to go away without voting. In
consequence of the aforesaid threats
several other electors went away without
(viii) S.D.Tenison18.5.83 At EnderamullaUsing force on one Ratnasena a supporter
Wimalaratne UNP supporter of the SLFP : the attack on the said
and another UNP supporter Ratnasena was directed to intimidate and
to induce electors favourable to the SLFP
to refrain from voting.
(ix) Jayantha Rajapakse and 18.5.83 At Buthpitiya Jayantha Rajapakse fired two shots killing
Several other supporters of Malwatu Hiripitiya Public one Nimal Premasiri a SLFP supporter
the 1st respondentRoadstanding very close to Wijaya
Kumaranatunge the SLFP candidate in order
to instill fear into the minds of several
electors present and to place them under
duress and to prevent them from voting.
The other supporters of the 1st respondent
who came with Jayantha Rajapakse
threatened to assault with clubs and
swords the supporters of the SLFP
candidate in order to instill fear into
the minds of several electors present and
to place them under duress and to prevent
them from voting.
(x) Supporters of the 1st 18.5.83 At Kandeliyadda paluwa East About 150 supporters of the 1st respondent
RespondentJayakody Maha Vidyalaya entered forcibly into the polling booth of
the Kandaliyadda Paluwa East Jayakody Maha
Vidyalaya polling booth shouting loudly
and behaving in an aggressive manner
thereby placing electors under duress.
(xi) 1st respondent and his 18.5.83 About ╝ mile from MaharaThe 1st respondent and his supporters
supportersNugegoda polling boothassaulted K.A. Sirisena a SLFP supporter.
The 1st respondent and his supporters
dragged him into the jeep of the 1st
respondent and forcibly took K.A. Sirisena
to the 1st respondent's residencehaving
assaulted him again he was chased away
after removing his clothes. The aforesaid
act of the 1st respondent and his
supporters were in order to prevent the
free exercise of franchise by several
electors who witnessed the incident by
placing them under duress.
(xii) 1st respondent and18.5.83 About ╝ mile from The 1st respondent and his supporters
his supportersKandaliyadda polling booth. assaulted Sunil Wettawa a SLFP supporter
and dragged him into the 1st respondnet's
jeep the jeep drove towards the 1st
respondent's residence and the people in
the jeep continued to assault Mr.Wettawa.
The aforesaid act of the 1st respondent
and his supporters were in order to
prevent the free exercise of franchise by
several electors who witnessed the
incident by placing them under duress.
(xiii) 1st respondent and 18.5.83 At the main SLFP Election 1st Respondnet and his supporters
his supportersoffice Kalawatta Ragama assaulted Lalith Wanigaratne a SLFP
Roadsupporter and attempted to drag him to the
jeep of the 1st respondent. The aforesaid
act of the 1st respondent and his
supporters were in order to prevent the
free exercise of franchise of several
electors who witnessed the incident by
placing them under duress.
(xiv) 1st Respondent and18.5.83 At the Main SLFP Election 1st Respondent and his supporters
his supportersoffice Kalawatte Ragama assaulted Jerimies Fernandopulle a SLFP
Roadsupporter and attempted to drag him to the
jeep of the 1st Respondent. The aforesaid
act of the 1st Respondent and his
supporters were in order to prevent the
free exercise of franchise of several
electors who witnessed the incident by
placing them under duress.
4. (B) The Petitioner states that the following acts constituted other misconduct.
Impersonation of the At the polling booth of Voters No.
1. , Dandeni Hewage Wieman Pasgemanna 165
2. Nilwala Pathirana Unnehelage Mahara-Nugegoda688
3. .............................................. ..........................................................
4. .................................................. ..........................................................
41. Hettiarachchige Suneetha Mallika Sooriyapaluwa 363
42. WeerasingheArachchige- Kandaliyadda Paluwa1,520
The aforesaid acts of impersonation alongwithnumerousotherimpersonationofelectorswasorganisedbythe1st
Respondent's supporters and facilitated by several Police Officers and members of the official staff at Polling Stations.
(4) (C) The petitioner states that the following matters constitute other circumstances referred to above
(i) The following polling agents of the' SLFP candidates were - arrested by officers from VeyangodaandNittambuwa'Police
Stations on 1 8th May 1983 at about 4.00 a.m. and " held in custody for several hours after polling hadcommenced,'thereby
no t being able to 'perform their functions till the time shown below
Name of the Polling Agent Polling Booth.. Time 'of Arrival at the Booth
1. P. L. Weerasinghe Ambagaspitiya 11 :00 a.m.
2. E. A. Piyasena : - do. - 11.09 a.m.
3. - - -
4. - - -
30. W. Jayakody Henegama-Katukurunda 11.30 a.m.
31. W. Dharmawardena do. 11 .30 a.m.
The detention, of the polling agents resulted in
(a) The facilitation of impersonation.
(b) The demoralisation of sympathisers ofthe SLFP candidates.
(c), Creating the impression that Government machinery could be used against persons sympathetic to or, espousing the SLFP
(ii) Loudspeaker permits for holding' of public meetings of the Sri Lanka Freedom Party were refused by Police Officers
anxious to support the Government Party namely the United National Party. The details are set out below.
Application on To Police Station For Meeting at Refused on
(a) 29.04.83 Weerangala Malwatu- 07.05.83 Hiripitiya
(b) 03.05.83 Kadawatte Enderamulla 07.05.83
(c) 03.05.83. Kadawatte Kadawatte 07.05.83
(iii) Police Officers throughout the electorate -
(a) harassed and threatened the Sri `Lanka Freedom Party Organisers and supporters throughout the election campaign and on
(b) permitted unauthorised persons to enter polling booths and to intimidate electors in the polling queues
(c) unlawfully arrested Reggie Ranatunga on 5th May, 1983 and held him in unlawful custodyinordertopreventhimfrom
carrying out of his functions of a Chief Organiser for theS.L.F.P.inUruvalPeruwaareaandtodissuadetheother
organisers and supporters of the S.L.F.P.
5. The petitioner states that the election of the 1 st respondent aforesaid is void on the ground of non-compliance withthe
provisions of the Ceylon (Parliamentary Elections) Order in Council 1946 relating to elections andthefailuretoconduct
the election in accordance with the principles of such provisions which non compliance affected the results of the election.
The petitioner states
(a) that ballot box from Natbuduwa polling booth contained 49 ballot papers more than thenumberissuedaccordingtothe
return sent by the Senior Presiding Officer of that booth and announced by him at the polling booth
(b) that a ballot box from Ihalakaragahamune polling booth contained one ballot paper lessthanthetotalissuedatthe
polling station according to the announcement: of the Senior Presiding Officer and the returns made by him. ,
(c) that a ballot box from Rahatara polling booth contained one ballot paper less thanthetotalissuedatthatpotting
station according to the announcement of the Senior Presiding Officer and the returns made by him.
The Election Judge has after a careful analysis of the several submissions made by Counsel for theappellant-petitionerand
respondents computed the total amount of security that should have been furnished by the petitioner tobeRs.52,500.The
amount of security in fact deposited by the petitioner is Rs. 50,000. The Election Judge has held that theamountdeposited
is short byRs. 2 500 and as Rule 12(3) states that no further proceedings should be heard on the pet ion, ifthesecurity
as stipulated is not deposited, , he dismissed the petition on that ground.
The learned Election Judge's computation is as follows :
Para 3 (a) (i)- 1st charge of undue influence against the 2nd Respondent - Attracts 5,000.00
Para 3,(41 (ii) and (iii) - 2 additional charges of undue influence against the 2nd 5,000.00
Respondent - Attracts
Para 3 B (i) and (ii) -2 charges of undue influence against the 3rd' Respondent -5 000.00
Para 4A - 1 st charge of general intimidation on the distinct ground of likely
prevention of free voting -Attracts 5,000.00
Para 4A (v)-(vii) - 3 "additional charges of undue influence against the 2nd Respondent7,500.00
Para 4A (xi)-(xiv)- 4 charges of undue influence against the 1st Respondent -Attracts10,000.00
Para 4B - Misconduct - the 2nd charge on the distinct ground of likely prevention of2,500.00
free voting - Attracts
Para 4C(i) = 1 st distinct type of "other circumstances- -Attracts2,500.00
Para 4C(ii) & (iii) (a) and (c) - 2nd distinct type of "other circumstances" - Attracts 2,500.00
Para 4C (iii) (b) - 3rd distinct type of "other circumstances" - Attracts 2,500.00
Para 5 - 1 st charge on the distinct ground of "non compliance" . 5,000.00
There was no controversy as regards paragraphs 3A(i) to (iii), 313(i) to (ii) of the petition. There was also nocontroversy
in regard to paragraph 5 of the petition. Mr. Senanayake referred to Rule 12(2):
"Security shall be an amount.... in respect of the 1 st chargeconstitutingadistinctgroundonwhichthepetitioner
relies, and a further amount . . . in respect of each additional charge constituting any such ground" and submitted thatthe
security is payable in respect of a charge which the petitioner relies to sustain his prayer. He stated,thatinparagraph
4A the petitioner has set out the ground of general intimidation and in connection therewith he has setoutseveralitems,
some of which, might amount to acts of undue influence. His explanation is that the petitioner is relying onthecumulative
affect of the several incidents pleaded in paragraph-4(A) to establish the ground of prevention or likely prevention offree
voting. He said that the corrupt practices of undue influence relieduponbythepetitionerfortheavoidanceofthe
election have been set out in paragraphs 3A and 3B of the petition. He contended that it was notopentothecounselfor
respondents to extract items pleaded under general intimidation and say that theyaretantamounttocorruptpracticeof
undue influence and therefore attract security, for the reason that the petitioner is not relying on those itemstosupport
his charge of corrupt practice.
The Election Judge did not agree with this submission of Mr. Senanayake.Inmyview,heiscorrectinrejectingthis
In appeal, Counsel for the petitioner submitted that Rule 12(2) confines the amount ofsecuritytochargesonwhichthe
petitioner relies. According to him, section 77(a) sets out one ground viz prevention of free vote, and one of themeansby
which this could be effected is by intimidation of a generalised nature. He said -that though in paragraph 4(a) (v) to(vii)
the 2nd respondent is alleged to have committed four separate acts of undue influence and in paragraph4(a)(xi)to(xiv)
the 1 st respondent (the returned candidate) to have committed four separate acts of undue influence, the petitioner wasnot
seeking to avoid the election on the basis of the allegations in 4(a), (v) to (vii) and 4(a) (xi) to (xiv).Hestatedthat
since the'-petitioner-waž not relying on those charges to avoid the election, the petitioner was not obligedbyRule12(2)
to furnish security in respect of those charges. It istobenotedthateachoftheseallegationscontainsallthe
ingredients of: the charge of corrupt: practice ofundueinfluencecommittedinconnectionwiththeelectionbythe
candidate or by an agent of the candidate sufficient, in terms of section 77 B, to avoid the election.Thequestionarises
whether the Election Judge is bound by the charges preferred by. the petitioner on the material factsfurnishedbyhimin
the petition and is inhibited from identifying the charges which the avermentsreveal.Section81requirestheElection
Judge to determine at the conclusion of the trial of an election petition whether the election was void.Intermsofthis
section, if at the conclusion of the present election petition the Election Judge finds that any one of theallegationsset
out in 4(a), (v) to (vii) or 4(a) (xi) to (xiv) is proved to havebeencommittedhewillhavetohold-thatacorrupt
practice has been' committed in connection with the election by 'the returned candidate (1strespondent)orbythe2nd
respondent, an agent of the 1 st respondent (vide paragraph, 3 of the petition) and consequently determine that theimpugned
election is void.
Mr. Senanayake's reply was that section 81 does. not give jurisdiction to the Election Judge to declare,theelectionvoid
on any ground or charge which had not. been specifically. relied, on by the petitioner, in his petition for the avoidanceof
the electionI cannot accept this limitation placed on the jurisdiction vested in the Election Judgebysection81.This
section provides that "at the conclusion of the trial of. anelectionpetitiontheElectionJudgeshalldetermine...
whether the election was void, and shall certify the :determination in writing under his hand."Thereisnowarrantfor,
reading into this section the words "whether the petitioner has proved the charge relied on by him andif,sowhetherthe
election is void". The section does not place any limitation on the Election Judgetodeclarevoidtheelectionifthe
evidence on record led under any head establishes any one of the grounds setoutinsection77.TheElection.Judge's.
jurisdiction to determine an election void is not confined to the charges` preferred by the petitioner. Section 81 readwith
section. 77 obligates the Election Judge to declare void the election of the 1 strespondentwhenacorruptpracticein
connection with the election, whether relied on by the petitioner. or not has been proved to his satisfactiontohavebeen
committed by the 1 st respondent or by his agents, the 2nd or 3rd respondent.
It is true the petitioner has pleaded in paragraph4(a)theaforesaidactsofundueinfluencecommittedbythe2nd
respondent and the 1 st respondent, in support of the ground of general intimidation and not in connectionwiththecharge
of corrupt practice and has studiously abstained from labelling them as corrupt practice by the candidate or hisagent.But
they could have, without any further averment appropriately been included in paragraph 3 of the petition wherethepetition
sets out items of the corrupt practice of undue influence committed by the agents ofthe1strespondentandbeenproper
subject-matter of charges under section 77(c).
If Mr. Senanayake's submission is accepted it would enablethepetitionertoavoidfurnishingsecurityinrespectof
allegations of corrupt practice by the candidate orhisagentbycategorizingthemasinstancesofgeneralbribery,
intimidation etc., while putting the candidate and/or his agent in hazard of punitive consequences under section81or82.
The candidate or his agent will then be put in a situation of havingtodefendthemselvesagainstthechargesofsuch
corrupt practice without the petitioner furnishing necessary security for such charges. In my view this cannot bepermitted.
Under Rule 12(2) to determine the grounds or charges on which the petitioner is asking reliefcourtisnotrestrictedto
what he specifically alleges for his ground or charge in the petition but what are the grounds or charges which thepetition
discloses. If the material facts on which the petitioner relies exhibits a ground or chargeforavoidanceofanelection
under section 77, irrespective of the fact whether thepetitionerhaschosentopreferachargebasedonthem,the
petitioner will have to give security for such charge. The petitioner relies on the facts set out inhispetitionforthe
avoidance of the election and if the facts so set out disclose a charge or ground for the avoidance of theelection,itis
immaterial whether the petitioner has framed such a charge or ground for the avoidance of theelection.Thepetitioneris
relying on facts which constitute a charge or ground and hence has to give security in respect of such charge or ground.The
security is for the benefit of the respondents and it is from their perspective as to the hazard they areputtothatthe
amount of security has to be calculated.
The instances of undue influence given in 4A (ii) and (iii) are the same as instances given in 3B (i) and (ii) andtherefore
do not constitute new charges of undue influence.
I agree with the Election Judge that in respect of the matters pleaded in paragraph 4A of the petition the petitionershould
have deposited a total sum of Rs. 22,500.
The acts of impersonation pleaded in paragraph 4B of the petition constitute other grounds of 'misconduct'andattractRs.
2500 as security.
The arrest of the agents of the S.L.F.P. by the Police on 184.108.40.2063 (the election day) and keeping them incustodyasset
out in paragraph 4C(i) _constitute one distinct type of 'other circumstances' and attract Rs. 2500 as security.
I agree with the Election Judge that the refusal by the Police of loudspeaker permits for holding publicmeetingsandacts
of misconduct by the Police, set out in paragraph 4C (iii) (a) and (c) committed during the electioncampaignconstitutea
distinct type of 'other circumstances' and attracts Rs. 2500.
The acts of the Police in permitting unauthorised persons to enter polling booths and to intimidate electors inthepolling
queues on the election day referred to in paragraph 4C (iii) (b) constitute a third distinct typeof'othercircumstances'
and attracts Rs. 2500 as security.
The allegation of non-compliance with the provisions of,theCeylon(ParliamentaryElections)OrderinCouncil,1946,
relating to elections, constitutes a distinct ground and attracts Rs. 5000 as security.
I therefore agree with the Election Judge on the computation of the security required to be furnished bythepetitionerin
respect of the allegations contained in the petition.
The Election Judge has held that- the petitioner has set out as best as hecanfullparticularsoftheseveralcorrupt
practices alleged by the petitioner and that the Election Judge could in the exercise of hispowerundersection80C(i)
direct amendment or amplification of-.the particularsif,hethinksnecessary.Noargumentwasurged,faultingthis
The Election Judge has upheld the objection that the affidavit filed by the, petitioner is inadequate.
Paragraph 2 of the: affidavit of the petitioner, accompanying the petition states "that the averment of facts set out. inmy
petition and the particulars of commission of corrupt practice set out therein are made : from my own personal knowledgeand
observation or: from personal inquiries conducted by me in order to ascertain the details of the incident referred to inthe
petition." The Election Judge states that the petitioner does not say in his affidavit which facts in the petition arebased
on personal knowledge and which of them are based on information. He however holds that the affidavit canbeonebasedon
personal knowledge or on information and belief provided-that if thelatter,thedeponentmustdisclosethesourceof
information and the grounds of His belief. He also held that the function of an affidavitistocertifyandsupportthe
allegation of corrupt practice made in the petition and an affidavit that fails to perform the function is- not anaffidavit
in the eye of the law. The Election Judge has held that the affidavit is defective in that the deponenthasnotdisclosed,
the source of information and the ground of his belief. He concludes.
"I reject the affidavit filed by the petitioner on the ground that the petitioner has not verified andconfirmedthefacts
stated in the petition. I uphold the objection that there was noproperaffidavitsupportingtheallegationofcorrupt
practice pleaded in the petition and therefore the-petition was defective.
Section 80 of the Ceylon (Parliamentary Elections) Order-in-Council provides that -
"The petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation ofsuchcorrupt
or illegal practice and the date and place of the commission of such practice."
Admittedly no form has been prescribed for the affidavit to conform to.
I agree with the Election Judge that where some of thestatementsintheparagraphoftheaffidavitaccompanyingthe
election petition are based on the knowledge of the deponent and some on information received from otherstheaffidavitis
defective. But I do not agree with the Election Judge that the petition should be dismissed on that ground of defectinthe
verification. The allegation of corrupt practice cannot be ignored merely on the ground that the sourceofinformation,is
not disclosed, when the allegation' is` based on information, asitisnotarequirementoflawthatthesourceof
information or the ground of the deponent's belief should be set out, since the form of the mandatory affidavit has notbeen
prescribed. In my view the Election Judge' was in error in upholding this objection regarding affidavit.
I agree with Samarawickrama, J., that an election petition should not be dismissed onthegroundofdefectiveaffidavit,
where no form has been prescribed by law:
Though I do not agree with the Election Judge in his conclusion respecting the objection regarding the persons to be joined
as respondents to the petition and in respect of the adequacy of the petitioner's affidavit. I agree with the Election Judge
that the security furnished by the petitioner is not sufficient in terms of Rule 12 (2). I therefore dismiss the appeal, but
I do not make any order regarding costs.
COLIN-THOME', J. - I agree.
ATUKORALE, J. - I agree.
L. H. DE ALWIS, J. - I agree.
The two appeals, S.C. 4/84 and 5/84, Were consolidated and heard together although the petitionersandtherespondentsin
the respective appeals are different. They deal with the same election and the same electoral seat, andsomeofthelegal
issues argued before us are common to both appeals.
In these election petitions the petitioners have asked for a declaration that theelectionofthe1strespondentasa'
member of Parliament for Mahara (Electoral District No. 17) is void. The petitioner in thesecondpetitionandthe1st
respondent were two of the five candidates who contested the election.
The electionwas held on 18th May, 1983, pursuant -to Article 168 (1) (d)' (iii) of the Constitution,_asamendedbythe
Fifth Constitutional Amendment, and was. conducted in terms of the provisions of the Ceylon (Parliamentary Elections)Order-
The petitioner in the first petition (No. 4/84) is a voter. The four respondents are : the successfulcandidate(the1st
respondent), Sarathchandra Rajakaruna (the 2nd respondent),whoisincidentallyamemberofParliamentandaDeputy
Minister, Ranil Wickremasinghe (the 3rd respondent), - also a member of Parliament and a Cabinet Minister, and theReturning
Officer for the electoral district (the 4th respondent).
Paragraph 3 A of the petition alleges three charges of corrupt practice of undueinfluenceagainstthe1strespondent,
committed by his agent the 2nd respondent.
Paragraph 3 B of the petition contains two charges of corrupt practice ofundueinfluenceagainstthe1strespondent,
committed by his agent the 3rd respondent.
In paragraph 4, the petitioner has stated that by reason of general intimidation or other misconduct or othercircumstances,
the majority of electors may have been prevented from electing the candidate whom they preferred.Paragraph4Alists14
such instances. This intimidation has been done by the 1 st respondent himself and by the supporters of the1strespondent,
and includes two instances by the3rd respondent andthreeinstancesbythe2ndrespondentasagentsofthe1st
respondent. These allegations are of a very grave nature and one transaction involved the shooting and the death of aS.L.
F. P. supporter standing by the side of or very close to the unsuccessful candidate Vijaya Kumaranatunga, thepetitionerin
the second petition. The other cases disclose assault, thuggery and intimidation of numerous supporters oftheS.L.F.P.at
various times and at various places by individuals and gangs, and in one case by a group of about 150 persons.
Paragraph 4 S of the petition lists 42 cases of impersonation as .constituting other misconduct.
Paragraph 4 C states certain other circumstances that prevented a true vote. It containsalistof31namesofpolling
agents of the S. L. F. P. candidate who had been unlawfully arrested and held in custody for several hours after thepolling
commenced and were therefore unable to perform their functions. Paragraph 4 C. (ii) liststhreecaseswhereloudspeaker
permits had been wrongly refused to the S. L. F. P. Paragraph 4 C (iii) alleges a number of wrongful acts on the part ofthe
Police including the arrest of a chief organiser of the S.L.F.P. in Uruval Peruwa area.
In the second petition (No. 5/84) Mr. Vijaya Kumaranatunga, the unsuccessful candidate, has soughtadeclarationthatthe
election is void on the ground that the 2nd respondent Mr. J. R. Jayewardene (the President of the Republic) as agent ofthe
1 st respondent, committed the corrupt practice of making false statements of fact in relation to the personal characterand
conduct of the petitioner. That petition would be dealt with in the latter part of this judgment.
The election had been hotly contested and the result was very close. The1strespondentpolled24,944votesasagainst
24,899 polled by Mr.-Kumaranatunga, the petitioner in the second petition. The majority was a mere 45 votes. There isreason
for anxiety in this case when we consider the serious nature of the allegationsinthepetitioninthecontextofthe
When the election petitions came for hearing before the ElectionJudge,therespondents-attheoutsetraisedcertain
preliminary objections and prayed for the dismissal of the petitions. The Election Judgehasupheldthoseobjectionsand
dismissed the petitions. The
present appeals are from that order. The dismissals of the petitions in limine by theElectionJudgedidnotpermitthe
court to go to trial and inquire into the several allegations made in the petitions.
The preliminary objections raised in the first petition (No. 4/84) are the following :
(a) that sufficient security has not been given by the petitioner in respect of his petition.
(b) that persons who are required to be joined as respondents to the petition have not been so joined.
(c) that the petition has failed to set out full' particulars of the several corrupt practices alleged by thepetitioneras
required by the law.
(d) that the affidavits filed by the petitioner are inadequate, and do not comply with the legal provisions.
At this stage it would be convenient to set out in extenso the legal provisions that arerelevantforaconsiderationof
this matter. The applicable legal provisions are contained in the Ceylon (Parliamentary Elections) Order-in-Council 1946,as
amended by Act No. 9 of 1970. They are as follows
"80 A. (1) A petitioner shall join as respondent to his election petition -
(a) where the petition, in addition to claiming that the election of all or any of the returned candidatesisvoidorwas
undue, claims a further declaration that he himself or anyothercandidatehasbeendulyelected,allthecontesting
candidates, other than the petitioner, and where no such further declaration is claimed, all the returned candidates and
(b) any other candidate or person against whom allegations of any corrupt or illegal practice are made in the petition.
(2) Any candidate not already a respondent to an election petition shall, upon application in that behalf made by him tothe
Judge, be entitled to be joined as a respondent to such petition Provided that no candidate shall be entitled to be joined
of his own motion as a respondent to such petition under the preceding provisions of this section unless he has given such
security for costs as the Election Judge may determine.
80 B. An election petition -
(a) shall state the right of the petitioner to petition within section 79 of this Order
(b) shall state the holding and result of the election
(c) shall contain *a concise statement of the material facts on which the petitioner relied
(d) shall set forth full particulars of any corrupt or illegal practice that the, petitioner alleges,includingasfulla
statement as possible of the names of the parties alleged to have committed such corrupt or illegalpracticeandthedate
and place of the commission of such practice, and shall also be accompaniedbyanaffidavitintheprescribedformin
support of the allegation of such corrupt or illegal practice and the date and place of the commission of such practice ,
(e) shall conclude with a prayer as, for instance, that some specified person should be declared dulyreturnedorelected,
or that the election should be declared void, or as the case may be, and shall be signed by all the petitioners
Provided, however, that nothing in the preceding provisions of this section shall be deemed or construed to requireevidence
to be stated in the petition.
80C. (1) The Election Judge may, upon such terms as to costs or otherwise as he may deem fit, allow theparticularsofany
corrupt or illegal practice specified in an election petition to be amended oramplifiedinsuchmannerasmayinhis
opinion be necessary for ensuring a fair or effective trial of the, petition so, however, that heshallnot.allowsuch
amendment or amplification if it will result in the introduction of particularsofanycorruptorillegalpracticenot
previously alleged in the petition.
(2) Every election petition shall be tried as expeditiously as possible and every endeavour shall be made' toconcludethe
trial of such petition within a period of six months after the date of the presentation of such petition. The ElectionJudge
shall make his order deciding such petition without undue delay after the dateoftheconclusionofthetrialofsuch
81. At the conclusion of the trial of an election petition the ElectionJudgeshalldeterminewhethertheMemberwhose
return or election is complained of, or any other and what person, was duly returned or elected, or whether the electionwas
void, and shall certify such determination in writing under his hand.
Such certificate shall be kept in the custody of the RegistraroftheSupremeCourttobedealtwithashereinafter
These provisions have to be considered in conjunction with Rule 12 of the Rules. Rule 12 contained in the ThirdScheduleis
as follows :-
"12. (1) At the time of the presentation of the petition, or within three days afterwards, security for thepaymentofall
costs, charges and expenses that may become payable by the petitioner shall be given on behalf of the petitioner.
(2) The security shall be an amount of not less than five thousand rupees in respectofthefirstchargeconstitutinga
distinct ground on which the petitioner relies, and a further amount of not less than two thousandfivehundredrupeesin
respect of each additional charge constituting any such ground. The security required bythisruleshallbegivenbya
deposit of money.
(3) If security as in this rule provided is not given bythepetitioner,nofurtherproceedingsshallbehadonthe
petition, and the
respondent may apply to the Judge for an orderdirectingthedismissalofthepetitionandforthepaymentofthe
respondent's costs. The costs of hearing and deciding such application shall be paid as ordered by the Judge, and indefault
of such order shall form part of the general costs of the petition."
For the purpose of their submissions, counsel for the respondents have drawn the attention of the courttocertaingrounds
and charges in the election petition. According to paragraph 3 of the petition the grounds and charges are as follows :
3A. Corrupt practices of undue influence committed by the 2nd respondent as agent of the 1 st respondent. Three charges.
3B. Corrupt practices of undue influence committed by the 3rd respondent as agent of the 1 st respondent. Two charges.
In paragraph 4, the petitioner has alleged the ground of "general intimidation or other misconductorothercircumstances"
whereby the majority of the electors may have been prevented from electing thecandidatewhomtheypreferred.Asstated
earlier, this ground contains three instances of intimidation by the 2ndrespondentandtwosuchinstancesbythe3rd
The parties were at issue on the question as to what is a ground and what is a charge ofundueintimidationandhowmany
such charges are contained in the petition. It was the respondents' contention that each of the charges referred to aboveis
a charge of corrupt practice and carries with it the need to give security,theneedforacoveringaffidavitandthe
joinder as a respondent of the person against whom such an allegation is made.Thisrelatesspecificallytothecharges
under paragraph 4 of the petition which has been a bone of contention between the parties and all the issues before usarise
from implications flowing from its contents.
I shall first deal with the question of security. The petition has been drafted on the basis that paragraph 3A (i), (ii)and
(iii) contains three charges with the first charge carrying a security of Rs. 5,000. The total security due according tothe
petitioner therefore is Rs. 10,000. Paragraph 3B contains two charges of undue influenceagainstthe3rdrespondent.The
security according to the petitioner is Rs. 5,000. Paragraph 4A contains one charge of general intimidation on the groundof
the prevention of free voting. This the petitioner states caries a security ofRs.5,000.Paragraph4Bisachargeof
misconduct on the same ground as 4A and,, according to the petitioner, attracts a security ofRs.2,500.Paragraph4Cis
another charge on the same ground and again according to the petitionerattractsasecurityofRs.2,500.Paragraph5
dealing with non-compliance is a first charge on a distinct ground and attracts a security of Rs. 5,000. Thetotalsecurity
in respect of. all charges, according to the petitioner, is Rs. 30,000. The petitioner has however depositedasumofRs.
50,000 leaving a large margin for error..
Both counsel for the respondents disputed this computation. Mr. Candappa had contended before theElectionJudgethatthe
proper amount of security is Rs. 72,500 , but according to Mr. Mark Fernando it was Rs. 60,000. In the appealbeforeusit
was Submitted by both the respondents that the proper security is a sum of Rs. 60,000.
Since the difference between the sum deposited and what is contended to be the correct amount is onlyRs.10,000,Iagree
with Mr. Senanayake that it is not necessary for me to go into a detailed computation of the security in respect ofalland
every ground and charge. It was sufficient for us, as Mr. Senanayake submitted, that we confine ourselves to onlyparagraphs
4A (v), (vi) and (vii)` and paragraphs 4A (xi), (xii), (xiii) and (xiv) of the petition on the object on to theadequacyof
security. According to the respondents', these charges carry a security of Rs. 17,500.Mr.Senanayakehascontendedthat
paragraph 4A contains only one ground and charge and that this will carry a security of Rs. 5,000 and if thissubmissionis
correct, this preliminary objection would fail.