Legal Services and Laws of Sri Lanka
SLR - 1985 Vol.2, Page No - 124
JAYAKODY AND ANOTHER
SHARVANANDA, C. J., WANASUNDERA, J., COLIN-THOME,
J. ATUKORALE, J. AND L. H. DE ALWIS, J.
S.C. ELECTION PETITION APPEAL No. 5/84.
ELECTION PETITION No. 7/83.
FEBRUARY 25, 26, 27 AND 28 AND MARCH 1, 4, 5, 7 AND 8, 1985.
Election petition - President impleaded as respondent alleging commission of corrupt practice of making falsestatementsof
fact in relation to personal character and conduct of petitioner - Affidavit containing averments based oninformationfrom
undisclosed sources - Meaning of false statement of fact in relation to personalcharacterandconduct-Article35of
Constitution - Sections 58 (1) (d), 77 (c) and 80A (1) (b), 80B (d) of the Ceylon (Parliamentary Elections)Order-in-Council
- Articles 161, 168 (1) and (2) of the Constitution.
The petitioner who was an unsuccessful candidate for election to the Mahara seat at the Parliamentary Elections held on18th
May 1983 challenged the election of the 1 st respondent who was the successful candidate on thesolegroundthatthe2nd
respondent who was the President of the Republic had at an electionmeetingheldinsupportofthe1strespondent's
candidature committed the corrupt practice of making false statements of fact inrelationtothepersonalcharacterand
conduct of the petitioner by referring to him, inter alia, as a Naxalite for the purpose of affecting thereturningofthe
petitioner. On behalf of the respondents three preliminary objections were argued
(1) The petition is bad and cannot be entertained because the President oftheRepublichadbeenimpleadedasthe2nd
(2) The affidavit filed was not proper and did not comply with the legal requirements and the petition should therefore be
(3) The statements alleged to have been made by the 2nd respondent do not amount to false statements of fact in relation to
the personal character and conduct of the petitioner.
Held - (1) (Affirming finding of Court of Appeal)
Article 35 gives blanket immunity to the President from proceedings of any kind whatsoever instituted or continued against
him in any court in respect of anything done or omitted to be done by him either in his official or private capacity during
the tenure of his office.
(2) (Reversing finding of Court of Appeal)
Where some of the statements in the affidavit accompanying the petition are based on the knowledge of the deponentandsome
on information received from others, the affidavit is defective. But the petition should not be dismissed on thatgroundof
defect in the verification. The allegation of corrupt practice cannot be ignored merely on thegroundthatthesourceof
information is not disclosed when the allegation is based on information as it is not a requirement of lawthatthesource
of information or the grounds of the deponent's belief should be set out, and the form of themandatoryaffidavithasnot
(3) (Reversing finding of Court of Appeal)
The false statement must be in relation to the personal character or conduct of the candidate as distinct from hispolitical
or public conduct. The words of the statement will be interpreted according to their real and true meaning and notaccording
to their literal sense. The true meaning will depend on the occasion of the publication, the personpublishing,theperson
attacked and the readers intended to be addressed. In the present case thesenseinwhichthealleged.statementswere
understood by those present at the meetings is relevant. What is meant by the term Naxalite and how the termwasunderstood
by the said voters and whether they understood it as relating to the personal or public conduct of the petitioner hastobe
determined on the evidence of witnesses.
(4) Held further: affirming decision of Court of Appeal. (Wanasundera, J. dissenting)
The impugned election petition is a proceeding against the President and is violative of Article 35 (1) of theConstitution.
An election petition with the President as a respondent cannot be instituted orsustainedorproceededwith.Makingthe
President a party respondent is fatal to the petition. Article 35(1)oftheConstitutionconstitutesanexceptionto
section 80A (1) (b) of the Ceylon (Parliamentary Elections) Order-in-Council 1946 and ousts the jurisdiction of the Courtto
inquire into the conduct of the President except in the circumstances specified in Article 35 (3).
Case referred to
(1) Kobbekaduwa v. Jayewardene and Others S. C No. 3/82 - S.C. Minutes of 10.1.1983.
APPEAL from Judgment of Election Judge reported in (198412 SLR 45.
Nimal Senanayake, P.C. with Sanath Jayatilleke, Nimal Siripala de Silva, Saliya Mathew.
Mrs. A. B. Dissanayake, L. M. Samarasinghe and Miss. A. D. D. N. Telespha, for the petitioner.
K. N. Choksy, P. C., with George Candappa, P.C., Ben Eliyathamby, Daya Pelpola, D. H. N. Jayamaha, Ronald Perera, and
Lakshman Perera for the 1st respondent.
2nd Respondent absent and unrepresented.
K. M. M. B. Kulatunga, P.C., Solicitor-General, with Sarath Silva, Deputy
Solicitor-General and A. Kasturiaratchi, State Counsel for Attorney-General as amicus curiae on notice.
July 8, 1985.
The Parliamentary Election for the Mahara Electorate was held on the 18th May, 1983. At thesaidelectionthepetitioner-
appellant and the 1 st respondent, amongst others were candidates and the 1 st respondent was declared elected:
The present election petition was filed on 09.06.83 by the petitioner wherein he seeks to have the election declared voidon
the ground that the 2nd respondent, as agentofthe1strespondent,committedthecorruptpracticeofmakingfalse
statements of fact in relation to the personal character and conduct of the petitionerforthepurposeofaffectingthe
return of the petitioner atthesaidelection,intermsofsection58(d)readwithsection77(c)oftheCeylon
(Parliamentary Elections) Order-in-Council, 1946.
The petitioner alleges -
(1) That on 08.05.83, at public meetings held at Malwathuhiripitiya and Narammala,insupportofthe1strespondent's
candidature, the 2nd respondent uttered the following words-''Itiswithmyfullknowledgethatcertainindividuals
belonging to opposition political parties were taken into custody after Presidential Elections and the Referendum. Therehad
been plans made by those individuals to create various disturbances in this country. After Tyrell Gunatillakewasentrusted
to hold an inquiry on these people we released the Naxalites, but after the inquiry report on 21st wewillsuitablypunish
those people who are guilty." (Para 4A of the petition).
(2) That on 08.05.83, at public meetings held at Malwathuhiripitiya andNarammala,insupportofthe1strespondent's.
candidature. the 2nd respondent uttered the following words -"Vijaya Kumaranatunga is supposedtobesayingthathewas
taken into custody. He was not just taken into custody but with myfullknowledge.Thosewhoarecreatingdisturbances
cannot be allowed to play with the people. If you vote for Vijaya Kumaranatunga thepeopleofthisseatwillonlyfind
themselves abandoned. Therefore when voting, vote with due consideration." (Para 4B of the petition).
(3) That on 08.05.83, at a public meeting held. at Malwathuhiripitiya, in support of the first respondent's candidature,the
2nd respondent uttered the following words -"The candidate for Sri Lanka Freedom Party for the seathasannouncedthatwe
kept him in custody. He was kept m custody according to my order. Why is that ? At Mr. Kobbekaduwa'smeetingssomepersons
have said that if they win, J.R. will be hanged. J. R's intestines will be taken out. Another person had said that I willbe
killed and they will walk on my blood to President's House. We got C.I.D., Tyrell Gunatillake. to make inquiries to findout
the purpose behind these statements. Vijaya Kumaranatunga was taken into custody to inquireintothat.Wewillgetthat
report before the 21 st. It will be decided accordingly whether the suspects will be prosecuted ornot."(Para4Cofthe
Mr. Senanayake, for the petitioner concedes that at all times material to this petition, including thedateonwhichthis
petition was filed, the 2nd respondent held the office of President of the Republic of Sri Lanka.
On behalf of the 1 st respondent, four objections, in limine, were raised before the Election Judge and the courtwasasked
to reject and/or dismiss the petition.
The objections were -
(1 ) the 2nd respondent could not have been made a party-respondent in these proceedings,hisjoindercontravenesArticle
35(1) of the Constitution the petition could not have been instituted the court could not have entertained thispetition
no process could have issued on the petition, and the petition must be rejected. The Election Judge will notproceedwith
the petition and make order either dismissing or rejecting it.
(2) Rs. 10,000 paid as security is inadequate and in terms of Rule 12(3) of the3rdScheduletotheElectionsOrder-in-
Council, 1946, the petition should be dismissed.
(3) there is no proper affidavit in support of the allegation of corrupt practices pleadedinthepetitionandtherefore
there is no valid petition before court intermsofsection'80(d)oftheElectionsOrder-in-Council.Thepetition,
therefore, cannot be proceeded with.
(4) the statements alleged to have been made by the 2nd respondent do not in lawconstitutefalsestatementsoffactin
relation to the personal character or conduct of the petitioner and these statements do not fallwithintheprovisionsof
section 58(1) (d) of the Election Order-in-Council. Ifso,thepetitiondoesnotdisclosethecommissionofcorrupt
practices and there is nothing upon which this court could proceed to inquire into.
On the question of inadequacy of security, the petitioner had deposited sums totalling Rs. 30,000. In view ofthis,Counsel
for the 1 st respondent did not press his objection in regard to security.
The Election Judge upheld the other three objections and dismissed the Election PetitionwithcostsfixedatRs.1,500,
payable to the 1st respondent. Against this order of dismissal the petitioner appellant has preferred this appeal.
Article 35 of the Constitution provides as follows -
(1) While any person holds office as President no proceedings shall be instituted or continued against him inanycourtor
tribunal in respect of anything done or omitted to be done by _ him either in his official or private capacity.
(2) Where provision is made by taw limiting the time within which proceedings of any description may be broughtagainstany
person, the period of time during which such person holds the officeofPresidentshallnotbetakenintoaccountin
calculating any period of time prescribed by that law.
(3) The immunity conferred by the provisions of paragraph' (1) of this Article shall not apply toany'proceedingsinany
court in relation to the-exercise of any power pertaining to any subject or function assigned to the Presidentorremaining
in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129or
to proceedings in the Supreme Court under Article 130 (a) relating to the election of the President.
Provided that any such proceedings in relation to the exercise of any power pertaining to any such subject or functionshall
be instituted against the Attorney-General."
The sole ground for avoidance of the election is the allegation that the 2nd respondent, as agentofthe1strespondent
committed a corrupt practice under Section 58 (1) (d) read with section 77 (c) of the Ceylon (Parliamentary Elections) Order-
Section 80A (1) (b) of the Ceylon (Parliamentary Elections) Order-in-Council,1946,requiresthepetitionertojoinas
respondent in the Election Petition, any person against whom any allegation of any corrupt practice is made in thepetition.
Sections 81, 82 and 82D make manifest the purpose of this mandate.
Section 81 of the Ceylon (Parliamentary Elections) Order-in-Council provides that -
"At the conclusion of the trial of an election petition the Election Judge shall determine whether theMemberwhosereturn
or election is complained of, or any other and what person, was duly returned or elected, or whether the electionwasvoid,
and shall certify such determination in writing under his hand.
Such certificate shall be kept in the custody of the RegistraroftheSupremeCourttobedealtwithashereinafter
Section 82 of the Ordinance further provides -
"At the conclusion of the trial of an election petition the Election Judge shall also make a report underhishandsetting
(a) whether any corrupt or illegal practice has or has not been proved to have been committed by or withtheknowledgeand
consent of any candidate at the election, or by his agent, and the nature of such corrupt or illegal practice, if any and
(b) the names and descriptions of all persons, if any, who have been proved at the trial to have been guilty ofanycorrupt
or illegal practice"
Section 82D (1), (2) (b) provides that - where the report of the Election Judge is to the effect that a corrupt practicehas
been committed by any person that person shall be subject to the same incapacities as if at the date of hisreportthathe
has been convicted of such practice.
According to these sections where the agent of the candidate commits a corrupt practice in connection with the election,not
will that be a ground for the avoidance of the election on an election petition, and the candidate's electiondeclaredvoid
but the agent also shall be reported by the Election Judge to the President that he hadcommittedacorruptpractice.On
such a report being rendered, the agent would be subject to the same incapacity as if he had been convicted of thepractice.
Section 58 (2) of the Ceylon (Parliamentary Elections) Order-in-Council states that -
"every person who is convicted of a corrupt practice under this section shall, by conviction, become incapable foraperiod
of seven years from the date of his conviction of being registered as an elector or of votingatanyelectionunderthis
Order or of being elected or appointed as a Member of Parliament."
Mr. Senanayake, Counsel for the petitioner-appellant submitted that it was in compliance with themandatoryrequirementof
Section 80A (1) (b) of the Ceylon (Parliamentary Elections) Order-in-Council,thathejoinedthe2ndrespondent,asa
respondent to this Election Petition. When confronted with the absolute prohibitions of Article 35oftheConstitutionhe
submitted that Article 35 is not relevant and does not apply to the. case for the reason thatthoughhewasjoinedasa
respondent to the Election Petition, the Election Petition is not a proceeding againstthePresident.Hiscontentionwas
that the Election Petition is a proceeding only against the candidate and not against anybody else.Hecontendedthatthe
test to identify whether the proceeding is against a person. is to look at the relief sought. bythepetitioner.According
to him the object of the Election Petition, and the relief claimedthereonbythepetitioneristohavetheElection
declared void. He emphasised that no relief was claimed by the petitioner against the 2nd respondentand.thatitwasin
compliance with the mandatory provision of Section 80A (1 ) (b) oftheCeylon(ParliamentaryElections)Order-in-Council
that the latter was joinedas a respondent to the petition.
I cannot agree with the construction urged by Mr. Senanayake. The legislature had a purpose in requiring theagent,against
whom an allegation of corrupt practice is made to be joined as a respondent to the election petition.Anelectionpetition
is a proceeding "sui generis". The petitioner and' the respondent to the election petition are not theonlypartieshaving
status in or interested in the election petition proceedings. It cannot beequatedtoaprivatelitigationbetweentwo
parties. The State and the public are interested in the proceedings and that is why an election petition, oncefiledcannot
be withdrawn without leave of the Election Judge. Further the Election Judge is called upon not only to make adetermination
whether the election is void or not but also is charged with the duty of making a report whetheranycorruptpracticehad
been committed. He has to report the offender to the President and certain penal consequences flow fromthereporttothe
person reported. It is not only the candidate who will be on trial in an election petition proceeding butalsoallpersons
against whom allegations of any corrupt or illegal practice are made in the petition and who are named as respondents tothe
petition in terms of section 80A. In these proceedings such persons are put in jeopardy of being reportedtothePresident
under section 82 and incurring the penalties stipulated by section 82D. If the allegation of corrupt practice set out inthe
election -petition is proved against 2nd respondent adverse consequences not only against the 1st respondent (candidate)but
also against the 2nd respondent will inexorably flow. Hence an election proceeding is, in myview,aproceedingnotonly
against the candidate but also against the respondents joined to the Election Petition as mandated by Section80A(1)(b).
Whether the proceedings following on such joinder is against the person joined or not, has to be tested from thisangleand
not from the vantage point of the petitioner though no relief is claimed by him against the person joined asrespondent,in
terms of section 80A (1) (b). The election proceeding is a proceeding against him also as he isputinjeopardyofbeing
reported by the Election Judge under section 82.
Article 35 gives a blanket immunity to the President from having proceedings institutedorcontinuedagainsthiminany
court in respect of anything done or omitted to be done by him either in his official or private capacity duringthetenure
of his office. It is not confined to proceedings of civil or criminal nature. The immunityextendstoanyproceedingsof
whatever nature, civil, criminal, quasi civil or quasi criminal etc.
Article 35 ousts the jurisdiction of the court to inquire into the conduct of thePresident,exceptinthecircumstances
specified in Article .35(3). This Article is an integral part of the Constitution defining the powers, functions,immunities
and tenure of office of the President. It supersedes the provisions of the ordinary statute law, wherever thelatterisin
conflict with or inconsistent with it. Article 168(1), appearing in Chapter 21 relating to transitionalprovisions,however
"Unless Parliament otherwise provides,alllaws,writtenlawsandunwrittenlaws,inforceimmediatelybeforethe
commencement of the Constitution shall mutatis mutandis, and except as otherwiseexpresslyprovidedintheConstitution,
continue to be in force."
Article 168(2) however states-
"Save as otherwise provided in the Constitution, existing laws, written laws and unwritten laws are not and shall not inany
manner be deemed to be provisions of the Constitution."
The Ceylon (Parliamentary Elections) Order-in-Council, 1946, was repealed by Act No. 1 of 1981.The5thAmendmenttothe
Constitution amending Article 161 (certified on 25.02.83)hasrestoredparts4to6(bothinclusive)oftheCeylon
(Parliamentary Elections) Order-in-council 1946 and has enacted that
"the aforesaid parts of the Ceylon (Parliamentary Elections) Order-in-Council 1946, shall for the purposeoftheElection,
notwithstanding the repeal of such Order-in-Council, be deemed to be in force andshall,mutatismutandisandexceptas
otherwise expressly provided in the Constitution apply tosuchelection.Thelawapplicabletoelectionpetitionsin
relation to' each Electoral District shall be the aforesaid parts of such Order-in-Council as applied as aforesaid."
Article 161 commences with the words "notwithstanding anything to the contrary in any other provisions of the Constitution."
Mr. Senanayake submitted that the opening words of Article` 161 would admit the construction "notwithstandingArticle35(1)
of the Constitution". He urged that the expression used in the 5th Amendment is "mutatis mutandis, andexceptasotherwise
expressly provided in the. Constitution" and not "subject to the provisions of the Constitution", as nArticle168(6).Mr.
Senanayake further argued that parts 4 and5oftheElectionsOrder-in-Councilhadbeenelevatedtothestatusof
constitutional provisions and that section 80(a) (1) (b) which isapart,ofpart5supersedesArticle35(1)ofthe
Constitution as the 5th Amendment is a later Act. The short answer to this last submission is that Articles 161,asamended
by 5th Amendment has to be read along with 168, which provides "Save as otherwiseprovidedintheConstitution,existing
laws are not and shall not in any manner be deemed to be provisions of the Constitution."
The words "mutatis mutandis" means subject to necessary alterations.
The words "notwithstanding anything to the contrary in any other provision of the Constitution" prefacing Article161.mean
that during the transition period the provisions of Article 161 shall apply to the matters dealt withbyArticle161even
though such matters have been provided for otherwise in the other Articles of the Constitution. Article 161dealswiththe
concept of the first Parliament, and of the election to such Parliamentandofelectionpetitionsinrelationtosuch
elections. Article 62 provides that the Parliament shall consist of 196 members, elected by the electors, in accordancewith
the provisions of the Constitution, namely proportional representation as provided for by Article 99.Byoperationofthe
opening words in Article 161 the provisions of Article 62 of the Constitution which would otherwise beapplicablewillnot
apply to the first Parliament. The words "except and otherwise expressly provided in the Constitution" mean thatinmatters
where there is a conflict and there is no express provision in the Constitution in respect of the matter,theprovisionof
the Elections Order-in-Council will apply. In this context the question arises whether section 80 (A) (1) (b) oftheCeylon
(Parliamentary Elections) Order-in-Council, 1946, has to yield to Article 35(1) of the Constitution.
Section 80 (A) (1) (b) contains a general rule that a person against whom allegation ofcorruptpracticeismadeinthe
election petition must be joined as respondent thereto.Article35(1)isaspecialprovisiondealingwithaspecial
situation, namely, immunity of the President from: proceedings in court. Halsbury's Laws of England, 3rd Ed.Vol.36,page
397, para 597 states.
"Whenever there is a particular enactment and a general enactment in the same statute, andthelattertakeninitsmost
comprehensive sense, would override the former, the particular enactment must be operative, and thegeneralenactmentmust
be taken to affect only the other parts of the statute to which it may properly apply."
"Where a general intention is expressed, and also a particular intention which isincompatiblewiththegeneralonethe
particular intention is considered as an exception to the general one. (Churchil v. Crease) 1828, 5Bing177,at180per
Best, C. J.
That is, though section 80 (A) (1) (b) provides that all persons against whom allegations of corruptpracticearemadein
the petition must be joined as respondent, Article 35(1) oftheConstitutionprovidesfortheparticularcaseofthe
immunity of the President from proceedings in court and constitutes an exception to the general rule contained in section80
(a) (1) (b). Article 161 as amended by the5thAmendmentwillthushavetobereadsubjecttoArticle35ofthe
Constitution. Accordingly no election proceedings can be instituted or maintained with the President being a party to it.
Mr. Senanayake further submitted that Article 35 jars with the concept of democracy, purity of elections, right offranchise
which according to him are the basic features of the Constitution. In this connexion he referred us to Articles 1,3and4
(e) of the Constitution. He submitted that Sri Lanka cannot be a Democratic Socialist Republic, ifthePresidentisgiven
the comprehensive immunity visualised by Article 35 of the Constitution. I cannot see any conflict between Article 35 onthe
one hand and Articles 1, 3 and 4 (e) on the other. Article 35 is an integralpartoftheConstitutiondealingwiththe
powers, functions and immunities of the President, as much as Articles 1, 3 and 4(e)oftheConstitution.Theabsolute
immunity of the President may conceptually be inconsistent with principles of democracy and sovereignty ofthepeople.But
it is not for a court of law to question the validity of any particular provision of the Constitution. Where the languageof
the Constitution. is plain and unambiguous, effect has to be given to it and a court cannot cut down the scopeoramplitude
of such provision for the reason that notionally it cannot harmonise with an ideal of the Constitution.
The impugned election petition is in my view a proceeding against the President and is violative of Article35(1)ofthe
Constitution. There is a constitutional bar to the President beingmadeaparrytoanelectionpetition.Anelection
petition with the President as a respondent, cannot be proceeded with. In fact such an election petition cannotinlawbe.
instituted. I agree with the Election Judge thattheimpugnedelectionpetitioncannotbesustained.Thepreliminary
objection is fatal.
In regard to the charge relating to the making of false statements Mr. Choksy submitted that the alleged statement doesnot,
in law constitute a false statement of fact in relation to the personal character of the petitioner andthereforedoesnot
disclose a corrupt practice within the meaning of section 58 (1) (d) of the Election Order-in-Council.
An essential requirement of a statement, for it to come within the meaning of section 58 (1) (d) of theElectionsOrder-in-
Council, is that it must be in relation to the personal character or conduct of the candidate as distinctfromastatement
relating to his political or public conduct.
"The principle underlying this provision of law appears to us to be that public character or conduct ofthepublicmanor
politician is public property and the risk of persons being misled regarding a candidate by afalsestatementrelatingto
his public or political character or conduct is therefore slight and is outweighed by theparamountnecessityofallowing
free and unfettered criticism of the public or political acts of public men and politicians. Whilst on the otherhandfacts
relating to the personal character or conduct of such men, are in the nature of things, notgenerallyknown,andafalse
statement relating to the personal character or conduct of the candidate may be calculated seriously to mislead theelectors
to the prejudice of such candidate." Kobbekaduwa v. J. R. Jayewardene and Others (1).
"The false statement of fact need not be defamatory at common law, so long as itisastatementwhichiscalculatedto
influence the electors, as, for instance, a statement made in a hunting country that thecandidatehasshotafoxora
statement made to promoters of total abstinence that the candidate has taken a glass of wine , but it isessentialthatit
should relate to the, personal rather than the political character or conduct of the candidate. The wordsofthestatement
will be interpreted according to their real and true meaning, and not according to their literal sense. Thequestiontobe
determined is what, in the circumstances, is the true meaning which the reader would placeuponthestatements.Thetrue
meaning will depend on the occasion of the publication, the persons publishing, the person attacked and the readersintended
to be addressed.' Halsbury"s Laws of England - 4th Ed. Vol. 15, para. 790.
The Election Judge has taken the view that the sense in whichtheallegedfalsestatementswereunderstoodbypersons
present in the meeting is irrelevant and that it is for the court to interpret the alleged statement andnotforwitnesses
to say what they understood the statement to mean. The Election Judge held that 'if to labelacandidateasacommunist,
even if it is false, is not a reference to his personal character and conduct, I fail toseehowtocallacandidatea
Naxalite, relates to his personal character andconduct."TheElectionJudgeupheldtheobjectionthattheimpugned
statement' did not in law constitute a false statement of fact in relation tothepersonalcharacterorconductofthe
petitioner and that therefore the petition did not disclose a corrupt practice within the meaning of section 58(1)(d)of
the Elections Order-in-Council, 1946. In my view the Election Judge is in error inholdingthatthesenseinwhichthe
alleged statements were understood by those present at the meeting were irrelevant. As stated in thepassageinHalsbury's
Laws of England, cited (supra) the true meaning of the statement willdependinter-aliaonthereadersintendedtobe
addressed. Hence unless the meaning cannot be disputed and is obvioushow theimpugnedstatementwasunderstoodbythe
members of the audience is relevant to determine the nature of the statement and the sense in which itwasunderstood.The
statement intended was calculated in influence the voters who were present at the meeting and hencewhatismeantbythe
term Naxalite" and how the term was understood by the voters present at themeetingandwhetherthesaidstatementwas
understood by the said voters to be relating to the personal or public conduct of-the petitioner has to be determined onthe
evidence of witnesses.
In my view it was premature for the Election Judge to have upheld thisobjectionthatthepetitiondidnotdisclosea
corrupt practice within the meaning of section 58 (1 ) (d) of the Elections Order-in-Council without havingthebenefitof
evidence showing that these alleged statements were understood by the voters to refer to the petitioner and what is meantby
the term 'Naxalite' and whether the statement relates to the personal character or conduct ofthepetitioner.Thelearned
Election Judge misdirected himself in law in upholding the objection, when the meaning of"Naxalite"wasnotcertain.He
could have ruled on that objection only after hearing evidence of what that word was understood to mean or signify.
The third objection relates to the adequacy of the affidavit filed along with the petition. Paragraph 2 of theaffidavitof
the petitioner states- "that the particulars of the commission of corrupt practice set outthereinaremadefrommyown
personal knowledge and observation, or from personal inquiries conducted by me in ordertoascertainthedetailsofthe
incident referred to in the petition."' The Election Judge states that the petitioner does not sayinhisaffidavitwhich
facts in the petition are based on personal knowledge and which of them are based on information. He however holdsthatthe
affidavit can be one based on personal knowledge or on information and belief provided that if the latter, the deponentmust
disclose the source of information and the grounds of his belief. He also held thatthefunctionofanaffidavitisto
verify and support the allegation of corrupt practice made in the petition and that an affidavit that failstoperformthe
function is not an affidavit in the eye of the law. The Election Judge has held that the affidavit is defective inthatthe
deponent has not disclosed the source of information and the grounds 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 upheld the objection that there was noproperaffidavitsupportingtheallegationofcorrupt
practice pleaded in the petition and therefore the petition was defective."
Section 80 B 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 others, theaffidavitis
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 thesourceofinformationis
not disclosed, when the allegation is based on information, as it is not a requirement of law that the source ofinformation
or the ground of the deponent's belief should be set out, since the form of the mandatory affidavit has not been prescribed.
I agree with Samarawickrema, J., that an election petition should not be dismissed onthegroundofdefectiveaffidavit,
where no form has been prescribed by law.
I uphold the Election Judge's ruling on the first preliminary objection and dismiss the election petition. There willbeno
order for costs.
COLIN-THOME, - I agree.
ATUKORALE, J. - I agree.
DE ALWIS, J. - I agree.
I shall now address myself to the second appeal No. 5/84. The petitioner who isanunsuccessfulcandidatehasfiledthe
second petition against the winning candidate, the 1 st respondent, and Junius Richard Jayewardene (who is thePresidentof
the Republic) as the 2ndrespondent. The petitioner sought the avoidanceoftheelectiononthegroundthatthe2nd
respondent, as the agent of the 1 st respondent, committed the corruptpracticeofmakingfalsestatementsoffactin
relation to the personal character and conduct of the petitioner for the purpose of affecting the return ofthepetitioner.
The ground is section 77 (c) and the petition contains three charges.
At the commencement of the hearing, three preliminary objections were taken onbehalfofthe1strespondent.The2nd
respondent did not appear in court, nor was he represented. The Solicitor-General howeverappearedasarnicuscuriaeand
assisted the court in regard to the constitutional question as to the validity of joiningthe2ndrespondentasaparty
respondent. These objections are :
(a) The joinder of the 2nd respondent contravenes Article 35 (1) of the Constitution which grants immunity of actiontothe
President. The petition is accordingly invalid and the court had no jurisdiction to proceed with the petition.
(b) The affidavit is inadequate and accordingly the petitioner cannot proceedwiththepetitionasitisnotproperly
(c) The statements complained of do not in law constitute false statements of fact in relation to the personalcharacteror
conduct of the petitioner and do not fall within the provisions of section 58 (1) (d) of the Order in Council.
Grounds (b) and (c) need not detain us. We decided at the hearing that as ground (a) contains a factual element,ithasin
any event to be left to the election court for determination. I have alreadydealtwithanddisposedoftheobjections
relating to ground (b) in the judgment delivered today in the connected appeal No. 4/84.
Ground (a) however constitutes the main objection and remains to be considered.
It would be useful, however, to go back to the analysis of the provisions of the Ceylon (ParliamentaryElections)Orderin
Council made by me in the earlier judgment. For the purpose of this analysis I have accepted almost in to thesubmissionof
Mr. Choksy and to a great part. that of Mr. Candappa as regards the dual functions vested in the election court.
The result of this analysis shows that an election petition proceeding contains within it notionally twoseparatekindsof
inquiries wrapped in one proceeding. First, there is the proceeding against the successful candidate fortheavoidance.of
the election, and second, the subsidiary inquiry as to whether any person has committed a corrupt or illegal practice.
I have discussed these provisions in detail in the connected judgment referred to, but would like tostressthatpriorto
the amendment of 1970, the person involved in the subsidiary proceeding was not even required to be made a respondent tothe
main proceedings but in the event evidence comes to light in the main proceedings, sufficient to establish acaseagainst
him, such person would be given an opportunityofmeetingthesechargesatalaterstage.Thesuccessfulcandidate
shouldered the entire burden of defending his election and no complaint was made that he was in any wayhandicappedbythe
absence of the other person. The present law is that such a person has now to be made a respondent-thisbeingmerelya
procedural improvement on the old law - but in my view his involvement in the proceedings in no way alters the nature ofthe
main proceedings which is directed towards the avoidance of the election and nothing else.
The presence of the person involvedinthesubsidiaryinquiryisnotessentialasamatterofsubstanceforthe
determination of the election petition. His presence, which was not originally required, is nowprovidedforbyamendment
and is a pure procedural measure made in . the interest of such person alone and not of the successful candidate.Wherethe
main inquiry is concerned, I do not think that in law the 2nd respondent could beregardedasanecessarypartytothe
proceedings. He has no interest in the subject-matter of the main petition, and it is also possible for the court to makean
effective order in that matter without his presence.
There are other weighty considerations for holding against the respondents on thisissue.Thedemocraticstructureunder
which this country is administered works on the basis that the People in whom the Sovereignty is vested, rulethroughtheir
lawfully elected or appointed representatives. These representatives, who act in their name and on theirbehalf,mustbear
proper credentials. They must be lawfully elected at a fair election. An allegation thatasuccessfulcandidatehasbeen
improperly returned is a grave one and touches the very basis of the governmental structure of this country.
The effect of the respondents" argument for the dismissal of the whole petition is that, if a corrupt or illegal practiceis
committed by the President, acting in his- political capacity as the agent of a successful candidate,theimmunityofthe
President should be regarded as extending to cover the action of such candidate so as to make him immunefromaction,thus
preventing the validity of his election being challenged, althoughfoundedonanillegality.Thiswouldplacesucha
candidate in a special position not enjoyed by other successful candidates. Such a view appears to strike at theveryroots
of the democratic process that obtain in this country. If that argument is valid, then it wouldbepossibleforaparty,
whose majority is due solely to the fact that some of its candidates have been improperly elected to foist on this countrya
Cabinet and a Government, which in the eye of the law should have no legal validity.
The question about the validity of an election, therefore, is a serious matter. If we are concerned about the properworking
of the Constitution and the protection of democracy_ in this country, the legal procedure for challengingsuchanelection
must be allowed to prevail and operate unless there: are very sound and compelling reasonstothecontrary.Theimmunity
given to the President is not a blanket cover to protect thewrongfulactivitiesofotherpersons,whomayhavesome
indirect connection with the President. The President himself is a component of our democratic process andfunctionswithin
its confines. He does riot `stand beyond or above it. The immunity he enjoys is a shield and meant to protectthePresident
alone from harassment as long as he holds office. It cannot be used as a sword' especially by others. -
As far as the 1st respondent is concerned, he can point. to no inconvenience or disadvantage which hewouldsufferbythe
absence of the 2nd respondent in the proceedings against him. The election petition for the avoidance of theelectioncould
continue to be validly constituted notwithstanding the fact that the 2nd respondent cannot be impleadedasthelawcannot
reach up to him. I can see no impediment to the court inquiring into the petitioner's complaintfortheavoidanceofthe
election and coming to a finding in the absence of the 2nd respondent.
The office of the President is an onerous one and a wide coverage for his acts has been claimed on his behalf. The Solicitor-
General stated that this immunity was unparalleled in any part of the world and there may be sometruthinthisstatement
when we compare his position with that of many other Heads of State. But, on closer examination itdoesnotappeartobe
that wide and one discerns certain limitations, some expressly indicated and others of an extraneous nature inherent inthe.
matrix in which this immunity is embedded. This immunity, whatever its coverage and range appears tobe,essentiallyofa
functional nature and designed to ensure the smooth functioning of the office ofPresident,forthePresidentunderthe
present Constitution exercises the totality of the Executive power of the State.
I would however accept the submission of both the Solicitor-General and the respondents and hold thatthePresidentcannot
be impleaded by reason of the immunity contained in Article 35. While the provisions of the Elections Order inCouncilmust
be read subject to the overriding provisions of Article 35 in this regard, Article 35 cannot be held to givewidercoverage
than what maybe required for the specific purpose and object it was intended. It does not havetheeffectofstiflingan
election petition, which is an important part of the machinery of the democratic process.
Having regard to the views expressed earlier, the Election Petition should then proceed to trial notwithstanding theabsence
of the 2nd respondent who falls out of the picture as a respondent due to the overriding legal operation ofArticle35.As
to whether any further proceedings can be taken in respect of the 2nd respondent at a later stage is not amatteronwhich
an expression of opinion is called for now, as it is a hypothetical question. It is indeed rendered doublyacademicnowin
view of the majority decision terminating all these proceedings
In my view this appeal should be allowed with costs payable by the 1st respondent, and the Election Judgeproceedwiththe
hearing of the petition in the absence of the 2nd respondent.