Legal Services and Laws of Sri Lanka

SLR-1992 Vol.2-P1

SLR - 1992 Vol.2, Page No - 1










19 JUNE 1989 TO 30 JUNE 1992

Presidential Election Petition - General intimidation - Non-compliance with provisions of the Presidential Elections ActNo.
15 of 1981 - Failure to conduct a free and fair election in accordance with the provisions of the Presidential ElectionsAct
- Presidential Elections Act No. 15 of 1981 as. 91 (a), 91 (b) - interpretation of s. 91 (a) - Burden ofproof-ss.101,
102 Evidence Ordinance.

The election to the office of President of Sri Lanka was held on19December1988.Therewerethreecandidatesnamely
Sirimavo R. D. Bandaranaike (Petitioner) of the Sri Lanka Freedom Party (SLFP), Ranasinghe Premadasa (1st respondent) ofthe
United National Party (UNP) and Oswin Abeygunasekera of the Sri Lanka Mahajana Party (SLMP). The petitioner received2289860
or 44.95% of the votes, the 1st respondent 2569199 or 50.43% of the votes and Abeygunasekera 235719 or 4.63%ofthevotes.
The first respondent won by a Majority of 279339votes.Oftheeligiblevoters55.32%voted.The2ndrespondentas
Commissioner of Elections declared the 1st respondent elected to the office of President of Sri Lanka.
The petitioner by petition filed on 09 January 1989 challenged the election of the 1st respondent on the following grounds.

1. By reason of general intimidation the majority of electors were or may have been preventedfromelectingthecandidate
whom they preferred under section 91 (a) of the Presidential Elections Act No. 15 of 1981 (hereinafterreferredtoasthe
2. By reason of non-compliance with the provisions of the Act relating to elections, the election was not conducted in
accordance with the principles laid down in such provisions and such non-compliance affected the result of the election
under s. 91 (b) of the Act.
3. By reason of "other circumstances" to wit, the failure of the Commissioner of Elections (2ndrespondent)and/orcertain
members of his staff to conduct a free and fair election, in accordance with the provisionsoftheActassetoutmore
particularly in paragraph 9 read with paragraph 8 of the petition, the majorityoftheelectorswereormayhavebeen
prevented from electing the candidate whom they preferred under section 91 (a) of the Act.
The petitioner called 546 witnesses, the 1st respondent 399 witnesses and the 2nd respondent 32 witnesses.
The pivotal question in this case turns on the correct interpretation of section 91 (a) ofthePresidentialElectionsAct
which reads as follows:
"The election of a candidate to the office of President shall be declared to be void on an election petition onanyofthe
following grounds which may be proved to the satisfaction of the Supreme Court namely:
(a) that byreasonofgeneralbribery,generaltreating,orgeneralintimidation,orothermisconduct,orother
circumstances, whether similar to those before enumerated or not, the majority of electors were or mayhavebeenprevented
from electing the candidate whom they preferred".
This Court in its preliminary order (reported at (1989) 1 Sri LR420,261,270)heldthatmereproofoftheseveral
instances or acts of general intimidation would not suffice to avoid an election. In addition, the petitionerhastoprove
that these several acts or instances had the result or consequence that the majorityofelectorswereormayhavebeen
prevented from electing the candidate whom they preferred. Onthebasisofinstancesoractsofgeneralintimidation
established by evidence, the Court may draw a reasonable inference therefrom that the majorityofelectorsmayhavebeen
prevented from electing the candidate of their choice. In a case of general intimidation, the question that arises is -from
the proved acts of intimidation of electors is it reasonable to suppose thattheresultoftheelectionmayhavebeen
affected? This is the true meaning of the words `the majority of the electors mayhavebeenpreventedfromelectingthe
candidate they preferred. But it will be open to the returned candidatetoshowthatthegrossintimidationcouldnot
possibly have affected the result of the election. Proof of widespread violence directedtowardspreventingelectorsfrom
voting was not enough. There was the requirement of proof of an additional and distinct ingredient ofthechargethatthe
majority of the electors may have been prevented from electing the candidate whom they preferred.

The petitioner's case was one of preventive intimidation and not coercive intimidation.
In the expression "were or may have been prevented" there is a significant difference between thewords"were"and"may
have been". The term may was designedly usedbecausemathematicalproofthatthemajorityofelectorswereinfact
prevented, in many a case is impossible of attainment. The burden to provethatthemajorityofelectorswereinfact
prevented is difficult and it is almost impossible to produce the requisite proof.
(1) (a) The preliminary order made by the CourtisbindingontheCourt.Noglossordeviationfromtheorderis
permissible. Further trial proceeded on the basis of the interpretation placed by Court ons.91(a)inthepreliminary
(b) Proof of widespread violence directed towards preventing electors from voting is not enough. Proof is necessaryalsoof
the additional ingredient that the general intimidation had the effect that the majority of voterswereormayhavebeen
prevented from electing the candidate whom they preferred.
(2) In so far as a charge under s. 91 (b) is concerned a Courtmustreachafindingastowhetherthenon-compliance
affected the result of the election. The Court then must consider the question whether the petitionerwouldhavesucceeded
but for the non-compliance.
Per G. P S. de Silva, C.J. "for that purpose evidence of party affiliations would be relevant and admissible,
notwithstanding the secrecy provisions would it then be reasonable to say that the secrecy provisions do not apply to sec.
91 (b) and they apply to sec. 91 (a). We think not."
(3) The evidence of group leaders regarding party affiliations is permissible asamodeofproofthatthevoterswere
prevented from electing the candidate of their choice and will not offend the secrecy provisions. The Court mayaddressits
mind to the pattern of voter behaviour.
(4) On a careful consideration of the totality of the evidence relating to the charge ofgeneralintimidation,itappears
that the thrust of the J.V.P. violence was directed against the U.N.P. Between the period17.09.88and19.12.88(16.09.88
being the date on which the Working Committee of the U.N.P. chose the 1strespondentasthecandidate)asmanyas413
organisers, office-bearers and supporters of the U.N.P. were killed, and 237 were attacked. The acts of violence againstthe
U.N.P. were spread throughout 80 polling divisions in 15 electorate districts, whereas the anti-S.L.F.P.incidentsoccurred
in 23 polling divisions in 13 electoral districts. Further the incidents against the U.N.P. were spread over a longerperiod
of time. Numerous threats, killings and attacks on local party organisers and office-bearers of the U.N.P.branchesatthe
village level resulted in a serious and irreparable setback to the organization and the campaign of the1strespondent.In
addition there were resignations from U.N.P. branches by office-bearers and even ordinarymembersconsequentuponthreats
conveyed by letters. Besides, there were threats directed at office-bearers and members of the J.S.S. and large numberswere
compelled to resign. The J.S.S. actively supported the U.N.P. at previous electrons. It is natural that all thiswouldhave
had a strong adverse effect on supporters of the 1st respondent atthePresidentialelection.Theoralanddocumentary
evidence establishes that the weight of the J.V.P. intimidation and violence was directed at the U.N.P.anditssupporters
and this has contributed in no small measure to the low voter turn-out on 19.12.88 (election day.)
(5) The burden of proof however slight it may be is on the petitioner that the acts orinstancesofintimidationhadthe
requisite effect, namely, that the majority of electors were or may have been preventedfromelectingthecandidatewhom
they preferred. The petitioner has not succeeded in establishing that the result of the election may have been affected.
Accordingly the charge of "General intimidation" relied on by the petitioner as a ground of avoidance of the electionfails.

(6) Per Goonewardene J..."in terms of section 91 (a) of the Presidential Elections Act, an ordertoavoidanelectionit
must be shown that it was not a free and fair one. It is proved not to be a free and fair election, when itisprovedthat
the majority of the electors were or may have been prevented from electing thecandidatewhomtheypreferred...Itis
therefore, in my view, vital to the success of the petitioner's case asbaseduponsection91(a)ofthePresidential
Elections Act to prove as the primary requisite, that the majority of electors were or may have been prevented fromelecting
the candidate whom they preferred".
Cases referred to
1. Sirimavo Bandaranaike v. Ranasinghe Premadasa and Another [1989] 1 Sri LR, 240, 248, 249, 250, 258, 259, 261, 263, 264,
268, 269, 270, 281, 282.
2. Illangaratne v. G. E. de Silva 49 NLR 169.
3. Abeywardene v. Ariya Bulegoda [1985] Sri LR 86.
4. Jayasinghe v. Jayakody [1985) 2 Sri LR 77, 89.
5. Ratnam v. Dingiri Banda 45 NLR 145.
6. Pelpola v. R. S. S. Gunawardene 49 NLR 207.
7. Tarnolis Appuhamy v. Wilmot Perera 49 NLR 361, 367, 368.
8. North Louth Case (1911) 6 O' M & H 103, 124.
9. South Meath Case 40 O' M & H 130, 141.
10. Woodword v. Sarsons (1875) LR 10 C.P. 733, 743, 744.
11. Wijewardene v. Senanayake 74 NLR 97, 101.
12. Shiv Charan Singh v. Chandra Bhan Singh and Others 1988 2 S.C.C. 12.
13. Hackney Case (1872) 2 O' M & H 77.

14. Morgan v. Simpson (1974) 3 All ER 722, 725, 726.
15. Anthony v. Seger (1780) 1 Hag. Con 9, 13, (1775 -1802) All ER 549, 550.
16. Faulkner v Elger (1825) 4 B & C 440.
17. Ashby v White (1704) 1 Bro Parl Cas. 62.
18. The Drogheda Case (1869) 1 O' M & H 252.
19. The Bradford Case (1869) 1 O' M & H 35.
20. The Salford Case (1869) 1 O' M & H 133.
21. The Stafford Case (1869)1 O' M & H 228.
22. The Nottingham Case (1869) 1 O' M & H 245.
23. The Borough of Dudley Case (1874) 2 O' M & H 115.
24. North Durham Case (1874) 2 O' M & H 152.

25. The Thornbury Division of the Country of Gloucester (1886) 4 0' M & H 63.
26. The Lichfield Case (1869)10' M & H 25.
27. The Thornbury Case (1886) 4 O' M & H 65.
28. The Ipswich Case (1886) 4 0' M & H 70.
29. London Joint Stock Bank v Simmons (1892) AC 208.
30. Rex v. Dolan (1907) 2 Irish Reports 286.
31. R. v. Chief Constable of the Merseyside Police Ex parte Calveley and others (1986) 1 All ER 257, 259.
32. The Dudley Case (1874) 2 O' M & H 115, 121.
33. The Bolton Case (1874) 2 O' M & H 138, 142.
34. The Norfolk Case 9 Journ. 631.
35. The Heyw Co. 555 (n).
36. The Morpeth Case 1 Doug. El. C 1471.
37. The Pontefract Case 1 Doug El. C. 377.
38. The Coventry Case P & Kn 338, C & R 276.
39. The New Ross Case 2 PR & D 188.
40. The Drogheda Case W & D 206.
41. Attorney-General v. Prince Ernest Augustin of Hanover (1957) 1 All ER 49.
42. Amoah Ababio v Turkson (1954) 1 WLR 509.
43. Warburton v. Loveland (1831) 2 D & CL. (HL) 489.
44. Vashit Narain Sharma v. Dev. Chandra AIR 1954 S. C. 513, 516.
45. Paokai Haokip v. Rishang AIR 1969 S. C. 663, 666, 667.
Election petition challenging election of President
H. L. de Silva, P.C. with Ranjith Abeysuriya, P.C., R. K. W. Goonesekera, A. A. de Silva, Sidat Nandalochana, Anil
Obeysekera, Percy Wickremasekera, S. L. Gunasekera, M. W. Amerasinghe, Nimal Jayamanna, Morris Rajapakse, I. Yoosuf. C.
Padmasekera, Suranjith Hewamanna, Neil Rajakaruna, S. Madawalagama and Collin Senarath, Nandadeva instructed by Nimal
Siripala de Silva for petitioner.

K. N. Choksy, P.C. with L. C. Seneviratne, P.C., P. Nagendra P.C.Varuna Basnayake. P.C., Kosala Wijayatilake, P.C., S. C.
Crosette Thambiah, Sunil K. Rodrigo, Jehan Cassim, Naufel Abdul Rahman, Daya Pelpola, S. l. Mohideen, Raja Dep, D. H. N.
Jayamaha, S. Mahenthiran, Lakshman Ranasinghe, Lakshman Perera, A.L.B. Brito Muthunayagam, Ronald Perera, A. A. M. llliyas,
Miss 8. Y. Devasurendra, Miss Nilmi Yapa, instructed by S. Sunderalingam for 1st respondent.
P. S. C. de Silva, P.C. Attorney-General, Tilak Marapona, P.C. Solicitor-General, S. Aziz Additional Solicitor-General, K.
C. Kamalasabayson, Deputy Solicitor-General, F. N. Gunawardena, State Counsel and Dhammika Dassanayake, State Counsel
instructed by U. R. Wijetunga, State Attorney for 2nd respondent.

1st September, 1992.

On 09th January, 1989, the petitioner Sirimavo R. D. Bandaranaike filedthispetitionseekingtohavetheelectionof
Ranasinghe Premadasa, the 1st respondent, to the office of President of Sri Lanka, declared null and void. Theelectionwas
held on 19th December, 1988. There were 3 candidates, Sirimavo R. D. Bandaranaike of theSriLankaFreedomParty(SLFP),
Ranasinghe Premadasa of the United National Party (UNP) and Oswin Abeygunasekera of the Sri Lanka Mahajana Party (SLMP).The
Commissioner of Elections (2nd respondent) declared the results as follows:
Oswin Abeygunasekera235719 4.63%
Sirimavo Bandaranaike 2289860 44.95%
Ranasinghe Premadasa256919950.43%
Valid votes 5094778
Rejected votes91445
Total polled5186223
Total registered votes 9375742
Total polled/registered55.32%
By this petition, the petitioner is challenging the election of the 1st respondent on the following grounds:
(1) that by reason of general intimidation, the majority of ejectors were ormayhavebeenpreventedfromelectingthe
candidate whom they preferred under section 91 (a) of the Presidential Elections Act No. 15 of 1981 (hereinafter referredto
as the Act)
(2) that by reason of non-compliance with the provisions of the Act relating to elections, the election was not conductedin
accordance with the principles laid down in such provisions and that such non-compliance affected the result of theelection
under s. 91 (b) of the Act
(3) that by reason of "other circumstances", to wit, the failure of theCommissionerofElections(the2ndrespondent),
and/or certain members of his staff to conduct a fair and free election, in accordance with the provisions of theAct,more
particularly set out in paragraph 9 read with paragraph 8 of the petition, the majority of theelectorswereormayhave
been prevented from electing the candidate whom they preferred, under section 91 (a) of the Act.
Mr. H. L. de Silva, Counsel for the petitioner, in his closingaddressabandonedcharge(2)above.Thereforeinthese
proceedings we are now concerned only with charges (1) and (3) above. The trial commenced on 19th June, 1989,andconcluded
on 30th June, 1992. The petitioner called 546 witnesses, the1strespondent399witnesses,andthe2ndrespondent32
The charge of "general intimidation" as a ground or avoidance of the election in terms of section 91 (a) of thePresidential
Elections Act No. 15 of 1981:
Mr. H. L. de Silva for the petitioner commenced his closing address before us with the submission:- " There is in fact I
venture to submit but one pivotal question in this case and that turns on the correct interpretation of section 91 (a) of
the Presidential Elections Act". Section 91 (a) reads as follows:-

"The election of a candidate to the office of President shall be declared to be void on an election petition onanyofthe
following grounds which may be proved to the satisfaction of the Supreme Court, namely:
(a) that byreasonofgeneralbribery,generaltreating,orgeneralintimidation,orothermisconduct,orother
circumstances, whether similar to those before enumerated or not, the majority of electors were or mayhavebeenprevented
from electing the candidate whom they preferred."
Mr. de Silva urged that section 91 (a) does no more than reflect the English Common Law and that this was the positionright
from the days of the Ceylon (State Council Elections Order in Council 1931. The section containedthebasicandessential
principles of the English Common Law relating to a free and fair election. This was precisely the submission made
Silva at the hearing before this Court on the preliminary objections (hereinafter called the preliminaryhearing)filedby
the 1st and 2nd respondents, moving for a dismissal of the petition in limine. It was his submission then (as it wasinhis
closing address) that the expression "general intimidation" is nowhere defined in the Act and that our Courtshavehitherto
looked to the English Common Law for its meaning. The section is intended to protect the right of the electoratetoafree
and fair election. The underlying principle is that it is in the public interest that the election should be freeandfair.
In the English Common Law "general intimidation" has a well-recognised meaning which goes back to the time of Edward III.
In the order made by this Court on the preliminary objection (hereinafter called the preliminary order) the submissions of
Mr. de Silva are set out thus:
"(1) The English Common Law of a 'free and fair election' is what is embodied in s.91(a).Theexpression'majorityof
electors were or may have been prevented from electing the candidatewhomtheypreferred'meansamajorityofpersons
entitled to vote free of intimidation and other pressures, werepreventedormayhavebeenpreventedfromelectinga
candidate according to their preferences. The expression does not Impose an additional burden on the petitioner.Ifgeneral
intimidation is established, the necessary consequence flows - that the majority were prevented from electingthecandidate
of their choice. All that the petitioner need establish is general intimidation. Once generalintimidationisestablished,
free choice goes." (The emphasis is ours)

"(2) In this view of the matter, it is not necessary to identify the candidate whom the majority ofelectorswouldormay
have preferred. Moreover, how the voters would have voted under different circumstances is impossibleofproof.Unlikein
the case of the statutory offence of undue influence where there must be an identification of the individual affected bythe
intimidation in the case of generalintimidation,theidentificationofvictimsisdifficultandisnotnecessary.
Furthermore, it would violate the principle of secrecy of the ballot which is enshrined in Article93oftheConstitution
which enacts that 'the voting for the election of the President of the Republic shall be free, equal and bysecretballot'.
A voter cannot be asked for whom he would have voted, if there was no general intimidation." (1989 1 Sri L.R.240at249
and 250)(1).
The Court then posed to itself the question, "what is the English Common Law regarding the avoidance of elections?" (atpage
255) and having considered no less than seven cases dealing with the English Common Law, concluded as follows:

"From the observations made in the said cases, it seems to us to be clear that at English Common Law,whereitwasproved
that bribery, treating or intimidation were so general and so extensive in its operation that it preventedmenofordinary
nerve and courage from going to the poll, whether or not the successful candidate or hisagentswereresponsibleforthe
corruption or violence, the election was set aside on the ground that it was not free". (at page 258).
Thereafter the Court considered the rival contentions of Mr. de Silva and Mr Choksy:-
"The question arises whether s. 91 (a) of the Act embodies what Mr.H.L.deSilva,P.C.describedasthe"pureand
unadulterated English Common Law" prior to 1949, or as Mr. Choksy submitted, that in addition togeneralintimidationetc.
something more has to be proved by a petitioner to have an election avoided under s. 91 (a)." (at page 259)
Having cited the cases of Illangaratne v. G. E. de Silva (2), Abeywardene v Ariya Bulegoda (3) and Jayasinghe v Jayakody(4)
the court expressed its ruling in the following terms:
"We agree with Mr. Choksy that more proof of the several instances or acts ofgeneralintimidationwouldnotsufficeto
avoid an election. In addition, the petitioner has toprovethattheseseveralactsorinstanceshadtheresultor
consequence that the majority of electors were or may have been prevented from electing the candidate whom theypreferred'."
(at page 261)
This is a very important finding in the preliminary order. The Court did not accept Mr. de Silva'ssubmissionthatsection
91 (a) reflects no more than the English Common Law. Mr. de Silva contended in his closing addressthattheCourtwasin
error in reaching this conclusion. Said Mr. de Silva in his closing address "... the SupremeCourthasmisunderstoodwhat
the English Common Law on the subject was and wrongly assumed the requirement of the English Common Lawwasdifferent.The
language in section 91 (a) is in fact a reproduction of the English Common Law priorto1949anddoesnotintroducean
additional requirement ... What the earlier Bench in the preliminary order erroneously thought to be "additional" is alsoas
much a part of the English Law" (written submissions of Mr. de Silva).
The other crucial question which the Court in its preliminary orderposedtoitselfis,"Whatisthemeaningofthe
expression 'the majority of electors were or may have been prevented from electing the candidate whomtheypreferred?"(at
page 264). The Court proceeded to consider several decisions, viz.Ratnamv.DingiriBanda(5),Pelpolav.R.S.S.
Gunawardene (6) Tarnolis Appuhamy v.
Wilmot Perera (7), North Louth case (8), South Meath case (9) and answered the question in the following terms:
"So, it seems to us that on the basis of instances or acts of general intimidation established byevidence,theCourtmay
draw a reasonable inference therefrom that the majority of electors may have been prevented from electingthecandidateof
their choice. In a case of general intimidation, the question that arises is -fromtheprovedactsofintimidationof
electors, is it reasonable to suppose that the result of the election may have been affected? This, it seemstous,tobe
the true meaning of the words" the majority of the electorsmayhavebeenpreventedfromelectingthecandidatethey
preferred". But, it will be open to the returned candidate to show thatthegrossintimidationcouldnotpossiblyhave
affected the result of the election.' (at page 270)
This is a clear, categorical and unequivocal ruling on the key words in section 91 (a) of the Act. It isconfinedinterms
to a "case of general intimidation". At the argument on the preliminary objection much timewasspentinelucidatingthe
meaning of these words of critical importance in section 91 (a). Almost all the cases cited by Mr. de Silvainhisclosing
address were cited at the hearing on the preliminary objections. A full and comprehensive argument was presented by bothMr.
de Silva and Mr. Choksy. The argument lasted for as long as 17 days in March and May 1989.

At the preliminary hearing Mr. de Silva strenuously contended that section 91 (a) has two constituent elements.Firstthere
must be proof of certain forms of conduct or events of a specific description - general bribery, general treating orgeneral
intimidation, or other misconduct, or other circumstances, whether similar to those beforeenumeratedornot.Thesecond
limb of the section - "the majority of the electors were or may have been prevented from electingthecandidatewhomthey
preferred" - connotes the consequences of the conduct or theeventsspecifiedinthefirstpartofthesection.The
consequence is to impede or prevent the free exercise of the franchise. The specified forms of conduct or events, onaccount
of their inherent nature, impede or prevent the free exercise of thefranchise. Once itisestablishedthatthegeneral
intimidation is of a widespread and of an all pervasive character (not of a local or isolatednature)thentheinevitable
consequence is that the voter's freedom to elect a candidate of his choice is seriously affected. The effect isin-builtin
the very nature of the forms of. conduct or events specifically set out in the section. The Court will draw aninferenceas
to the effect, having regard to the nature of the forms of conduct or events enumerated in the section. This is amatterof
legal inference for the Court. In other words what Mr. de Silva stressed was that the effect or theconsequenceisnotan
independent factor or an additional element ("something more" as stated in the preliminary order). Inshort,itisnota
requirement that has to be proved aliunde. These submissions, however,didnotfindacceptancewiththeCourtinthe
preliminary order.

Apart from the passages in the preliminary order quoted earlier, the following passage in thatorderalsoshowsthatthe
interpretation placed on the section by Mr. de Silva did not find favour with the Court -
"s.91(a) of the Act states that an election will be avoided if it is 'proved to the satisfaction of theSupremeCourtthat
by reason of general intimidation, the majority of electors were or may have been prevented from electing the candidatewhom
they preferred'. It seems to us that it is for the petitioner to prove that there was widespreadviolencedirectedtowards
preventing electors from voting. But the relief which the petitioner has asked for under s.91(a) of the Act willbegranted
subject to a finding by the Supreme Court that the general intimidation had the effect, namely, that the'majoritywereor
may have been prevented from electing the candidate whom they preferred'. It is a conclusion which is placed in the handsof
the Supreme Court upon a review of all the evidence." (at page 268)
This passage shows that the view of the Court was that proof of widespreadviolencedirectedtowardspreventingelectors
from voting was not enough. There was the requirement of proof of anadditionalanddistinctingredientofthecharge.
Relief which the petitioner has asked for under section 91 (a) of the Act willbegrantedsubjecttoafindingbythe
Supreme Court that the general intimidation had the requisite effect. In the preliminary order the Court cited withapproval
the opinion of Sharvananda, C.J. in Jayasinghe v. Jayakody (4) - "in order to succeed in his petition the petitioner hasgot
to prove a further ingredient, viz. that the majority of the electors may have been preventedfromelectingthecandidate
whom they preferred ..." (The emphasis is ours)
On the other hand, it was the submission of Mr. de Silva that the second limb ofs.91(a)wasnotintendedtoimposean
additional requirement but it indicates the effect flowing from the "general intimidation". Atthepreliminaryhearingit
was the contention of Mr. de Silva that the section postulates "a composite concept" and the latter part of the sectionsets
out "the necessary effect of the unlawful pressures" (to use Counsel's own words). In his closing address Mr. de Silvaurged
that "by considering this last element to be an addition the Court has unwittingly fallen into errorandthoughtthatthe
Sri Lankan law on this question was in some way different from the English Common Law. That this is not somaybegathered
from the unambiguous statement of Nagalingam, J. when he stated the law in Tarnolis Appuhamy v WiImotPerera(7)Thereis
not even a hint there that our law is any different from the English Common Law -thereisnosuchadditionalelement."
(Written submissions of Mr. de Silva).

We have already referred to the ruling in the preliminary order (1989 1 Sri L.R. at 270) as to the meaning of thekeywords
"the majority of electors were or may have been prevented from electing the candidate whomtheypreferred".Mr.deSilva
strongly urged before us that the word "result" when used "in the judicial exposition of s.91(a) means 'the effect'or'the
consequence' which the offensive acts have on the majority of voters' freedom to choose the candidate...Courtshavefor
convenience, in order to describe the requisite magnitude or the extent to which voters were prevented from votingusedthe
expression 'that the result may have been affected' as a shorthand expression for describing the extent or magnitudeofthe
affectation. But these words are not in fact to be found in the words enacted by Parliament inframingpara(a)ofs.91.
That is only a judicial paraphrase of paragraph (a) ... These words prescribe the index or the measure oftheeffectwhich
the law requires the prohibited acts or disabling facts must have on the minds of the voters". (WrittensubmissionsofMr.
de Silva)
It appears to us, however, there is not even a hint in the preliminary order that the Court
Silva calls a "judicial paraphrase" of s.91 (a) when the Court ruled that "in a case of generalintimidation,thequestion
that arises is - from the proved acts of intimidation of electors, is itreasonabletosupposethattheresultofthe
election may have been affected". It is not without significance that in the very next sentence the Courtproceededtosay
in clear, explicit and emphatic terms, "this it seems to. us, to be the true meaning of the words 'the majorityofelectors
may have been prevented from electing the candidate they preferred'." Undoubtedly the ruling is intermsthatarecogent,
precise and unambiguous. There is nothing whatever to suggest in this ruling that thewords"preventedfromelectingthe
candidate whom they preferred" mean more than saying "prevented from freely exercising the franchise or therighttovote"
as contended for by Mr. de Silva.

The expression "result of the election" which occurs in the above ruling of the Court has to-be given its plainandliteral
meaning, for there is no other meaning which could be reasonably attributed, having regard to the rival contentionsadvanced
and the context in which the words are used. Mr. de Silva strongly relied on the factthatinthepreliminaryorderthe
Court expressly held that the "result" contemplated in s.91(b) is "the successofonecandidateovertheother"citing
Woodword v. Sarsons (10) but that the Court made no such ruling in respect of its analysis of s.91(a).This,however,does
not mean that the Court used the words "result of the election" in a sense otherthanitsnaturalandordinarymeaning,
namely, the outcome of the election.
Mr. de Silva drew our attention to two submissions made by Mr. Choksy for the 1st respondent in supportofthepreliminary
objections. These submissions are set out in the preliminary order (1989) 1 Sri L.R. 240 at 248, and read as follows:-
"(1) The petitioner must prove that by reason of general intimidation, a certainresultorconsequencefollowed,namely,
that 'the majority of electors were or may have been prevented from electing the candidate whom they preferred'. Thisisan
important ingredient of the ground of avoidance in s.91(a) of the Act. If so, thepetitionermustidentifythecandidate
whom the majority of electorspreferred,butwereormayhavebeenpreventedfromelectingbyreasonofgeneral
This is a material fact which the petitioner must prove and if it is a material fact to be proved, then it must bepleaded."

"(2) In addition, the petitioner must plead and prove how the majority of electors wereormayhavebeenpreventedfrom
electing the candidate whom they preferred. That is, the petitioner must plead and prove that the majorityofelectorswho
voted for the 1st respondent were or may have been compelled to vote for him by reason of general intimidation, orthatthe
balance 45% of the electors abstained from voting because of general intimidation, and iftheyhadvoted,thereasonable
probabilities are that they would have voted for her. This is a material fact which the petitioner must prove, and ifsoit
must be pleaded".
It was the contention of Mr. de Silva that both submissions were rejected by the Court in the preliminary order.Wedonot
agree. This is how the Court in its preliminary order dealt with (1) above - (1989) 1 Sri L.R. 240 at 263.
"s.96(c) of the Act requires that the petition 'shall contain aconcisestatementofthematerialfactsonwhichthe
petitioner relies'. In Wijewardena v. Senanayake,(11) H. N. G. Fernando, C.J. observed that thisrequirementwas'intended
to secure that a respondent will know from the petition Itself what facts the petitioner proposes to prove in order toavoid
the election and will thus have a proper opportunity to prepare for the trial ... Theterm'materialfacts'hasaplain
meaning in the context of requirements relating to pleadings, namely, factsmaterialtoestablishaparty'scase'.The
object of the requirement is clearly to enable the opposite party to prepare his case for the trial so thathemaynotbe
taken by surprise. When the petitioner pleaded in paragraph 6(a) of her petition that'therewasgeneralintimidationin
consequence of which the majority of the said electors were or may have been prevented from electing the candidate whomthey
preferred' is there sufficient information given in the petition to enable the 1st respondent to identify the candidatewhom
the electors were or may have been prevented from electing? In paragraph (1), thepetitionerhasstatedthatshewasa
candidate at the Presidential Election and 'claims to have had a right to be returned or elected at the saidelection'.The
petitioner has set out in paragraph 5 the votes cast for each candidate and that she obtained the secondlargestnumberof
votes. Could there be any doubt in the mind of the 1st respondent as to the identity of the candidate,who,thepetitioner
claims, would or may have been returned but for the general intimidation?"

There is no finding here that it is not necessary for the petitioner to identify the candidate whom the majority ofelectors
preferred but were or may have been prevented from electing by reason of general intimidation. All that theCourtheldwas
that on a fair reading of the relevant averments in the petition, the test formulated in Wijewardenav.Senanayake(supra)
was satisfied. In other words the pleadings were sufficient to prevent the oppositepartyfrombeingtakenbysurprise.
There is certainly no finding by the Court, that the petitioner is relieved of theobligationtoshowthatshewasthe
candidate whom the majority of electors may have preferred but for the intimidation.
As regards (2) above, the Court having held thatthepetitioner'scaseisoneof"preventiveintimidation"(andnot
"coercive intimidation") and havingconsideredRutnam'scase,Pelpola'scase,WilmotPerera'scase(supra)andthe
observation of Gibson J. in the North Louth Case (8) and of O' Brien J. in South Meath Case(supra)reachedthefollowing
finding:- "In Our opinion, how the majority were or may have been prevented from electing the candidate of their choiceneed
not be specially pleaded" - at page 268. (The emphasis is ours) In other words the Court was of the view that a specificor
an express plea was not necessary and the plea in the petition in regard totheeffectofthegeneralintimidationwas
adequate. We cannot agree that this finding has any further implication inregardtotheingredientsofthechargeof
general intimidation set out in s.91 (a).
The preliminary order has dealt in fair detail with the two local cases relating to a charge ofgeneralintimidation,viz.
Ratnam v. Dingiri Banda and Pelpola v. R. S. S. Gunawardene (supra). These two cases are important inasmuch as theyindicate
the approach of the Court to the facts in relation to the requirement of "affectation" of the result. InRatnam'scasethe
contention of the petitioner was that his supporters who were the Indian labourers on the estates were preventedfromgoing
to the poll by the supporters of the contesting candidate, M. D. Banda. Upon a review of theevidenceHearneJ.expressed
his finding in the following terms:- "I hold that there was gross intimidation, that it was widespreadintheareaswhere
Mr. Ratnam had good reason, to count upon heavy voting In his favour, and that it may well havepreventedthemajorityof
the electors from returning the candidate whom they preferred". The words underlined above show that upontheevidencethe
Court found that there were areas withintheelectoratewherethemajorityoftheelectorsweresupportersofthe
petitioner, though of course they were prevented from going to the poll. In a narrow and undulystrictsenseitcouldbe
said that this finding was reached on "opinion evidence". Nevertheless theultimateconclusioninfavourofRatnamwas
reached on the basis that the intimidation was widespread "in the areas where Mr. Ratnam had good reason to count uponheavy
voting in his favour ....." If Mr. de Silva is correctinhissubmissionthatsuchevidenceisopinionevidenceand
inadmissible hearsay, then Hearne J. could not have found for the petitioner.
Pelpola's case was also a similar case where the Court specifically addressed its mind to the pattern of"voterbehaviour".
Apart from the fact that the majority of the winningcandidatewasonly387votes,theunchallengedpositionofthe
-petitioner was that over one quarter of the electorate were Indianestatelabourersagainstwhomtheintimidationwas
directed. There was the evidence of the President of the Ceylon Indian Congress Labour UnionCommitteeofMosvilleEstate
that all the Indian labourers had decided to vote for the petitioner. Windham, J. goes on to state: "It isnotunreasonable
to suppose that the Indian labourers on the neighbouring estates ... had likewise decided tovoteforthepetitioner...
Only 514 out of 1427 recorded their votes at the Uduwela polling station ... Had 400 more persons voted and cast theirvotes
for the petitioner the latter would have won the election". (The emphasis is ours) Thus it is seen that thedecisionturned
not only on the size of the majority but also on (1) the direction of the intimidation(actsofintimidationagainstthe
Indian estate labourers), (2) the probability of the Indian estate labourers voting for the petitioner. In otherwords,the
Court considered the evidence relating to the charge of general intimidation on the basis of how the electors may havevoted
had they the opportunity of voting - a view of the evidence which Mr. de Silva strongly urged a Courtisprecludedbylaw
from taking by reason of the secrecy provisions. These provisions no doubt preclude anelectorwhohasvotedfrombeing
asked for whom he voted. But do they also preclude a witness who claims to be an organizer or anoffice-bearerofaparty
branch from stating that the campaign of a candidate was disrupted by certain incidentsandthatthesupportersofthat
candidate were afraid to go to the poll? We think not. It is very relevant to note that in both Ratnam's caseandPelpola's
case evidence of the party affiliation of the voters in relation to the petitioner wasconsideredandacteduponbythe
Court. Similar secrecy provisions in regard to the ballot wereinoperationatthattimealso,buttheevidencewas
admitted. What is relevant for present purposes is that evidence of party affiliation was allowed as amodeofproofthat
the voters were prevented from electing the candidate of their choice.
Mr. de Silva vigorously contended that the evidence led on behalf of the 1strespondentofadverse"affectation"ofUNP
supporters by reason of the JVP terror campaign was based on pure conjecture and speculationthattheCourtisprecluded
from considering such evidence as it is founded on surmise and unpredictable factors. We find, however,thatthecasefor
the petitioner, as presented before us, was not free of evidence of this kind. A striking example wastheevidenceofthe
principal witness for the Anuradhapura electoral district, K. B. Ratnayake.M.P. He said he was the authorisedagentofthe
petitioner for Anuradhapura (East) at the Presidential Election. In examination-in-chief he was questioned as follows:-

Q. Did you expect more votes than what you received at the Presidential election of 1987?
A. Yes.
Q. About how many votes did you expect?
A. I expected a minimum of another 20,000 more votes from my electorate alone.
Q. For what reasons did you expect more votes?
A. After the defeat in 1977 we organized branches and formed women's organizations, youth organizations and enrolled
members. We had more than 120 branches in my division alone and there were 8000 registered members and one member from each
household generally.
Q. Roughly, how many votes were there in support of the SLFP?
A. Two or three from each family.
Q. Were there any other reasons why you expected more votes to the SLFP?
A. In addition to the organizational strength there was unpopularity on the part of the government party because people
could not get what they wanteddue to communal issues there were several killings near the Jayasrimaha Bodhi. This position
was aggravated by the Indo-Sri Lanka Accord.
Q. Are there any other reasons?
A. No.
Q. How many more votes did you expect in the entire district?
A. We expected at least another two lakhs more in the Anuradhapura district.
Similarly Pradeep Hapangama, M.P. for the Gampaha district testified to the "enthusiasm among the people for the SLFP inthe
Mahara electorate"that he enrolled 4000 members and established about 100 SLFP party branchesthataftertheattackon
the meeting organized by the USA at Kadawata junction on 01.12.88 there was a change in the enthusiasm amongthepeopleto
work for the SLFP. There was also the evidence of R. M. Jayasena, M.P. for the Kurunegala district who stated that heformed
184 SLFP branches and enrolled about 15300 members for the 1988 Presidential election. Therewastheevidenceofwitness
Pina of Yapahuwa who claimed that of the 182 voters in his village all except 2 were members of the local branch of theSLFP
of which he was the president. There is also the evidence of Dr.NevilleFernando,M.P.fortheKalutaradistrict.In
examination-in-chief he stated as follows:
Q. You said you expected a very high poll?
A. Yes, but they did not turn up.
Q. Is that the reason for the petitioner to get 28,000 votes?
A. Yes.
Q. Otherwise she would. have got over 40,000 votes?
A. Yes.
Q. She received only 28,000 votes?
A. I expected that Mrs. Bandaranaike would get over 40,000 votes.
Q. That was the result of this intimidation caused by the shooting that took place?
A. Yes.
This kind of evidence was led to show that in certainelectoratestheSLFPhadstrongsupportbutthattheactsof
intimidation prevented the party supporters from votng on 19.12.88. The inference to be drawn from the evidence isthatbut
for the violence the SLFP would have received more votes.

There is a further aspect to Mr. de Silva's submission that the Court is precluded fromactingupontheevidenceledon
behalf of the 1st respondent. When Mr. Choksy moved to lead evidence on behalf of the 1st respondentattheconclusionof
the evidence led on behalf of the petitioner, Mr. de Silva vehemently opposed it. It was the submission of Mr. de Silvathat
evidence of incidents outside what is pleaded in the petition is totally irrelevant to the issues that ariseinthiscase.
Such evidence could, if at all, only strengthen the case for the petitioner on the charge
Silva analysed the constituent elements of s.91 (a) and we find the submissions he made then were substantially thesameas
the submissions he made before us in his closing address. On the other hand, Mr. Choksy argued that he was entitledtolead
evidence of intimidation directed against the supporters of the UNP and his case was that suchintimidationcontributedto
the low poll at the Presidential election. Upon a consideration of the submissions made by Mr. de Silva and Mr. Choksy,this
Court made order on 18.12.90 overruling the objection taken on behalf of the petitioner.InallowingMr.Choksytolead
evidence of incidents outside the petition this Court made specific reference to the "orderwehavealreadydeliveredin
regard to the preliminary objection that was taken at the commencement of these proceedings".

The order made by this Court on the preliminary objections is clearly binding on us, although Mr. de Silva arguedthatsome
of the crucial findings therein are erroneous. Having regard to the nature of the preliminary objectionsthatwereraised,
the Court was called upon to analyse the ingredients of the charge of general intimidation postulated in s. 91(a).Atthe
hearing on the preliminary objections the foundation of the submissions of Mr. de Silva wasthats.91(a)embodiedthe
essential principles of the English Common Law relating toafreeandfairelection.TheCourtdidnotacceptthis
contention. The Court ruled on what it considered to be the true meaning of the words "... the majority of electorswereor
may have been prevented from electing the candidate whom they preferred". This ruling is undoubtedlyapartoftheratio
decidendi of the order and it is not open to us to place a gloss on it or todeviatefromit.Whatismore,wecannot
overlook the significant fact that the trial proceeded on the basis of the interpretation placed by the Court ons.91(a)
in the preliminary order.

One of the important contentions of Mr. de Silva both at the stage when he objected to evidence being led onbehalfofthe
1st respondent and also in his closing address was that any evidence of an opinion expressed by a witness (be heanoffice-
bearer of a local party branch, a political activist, a local organizer or even an ordinary member of a local branch)asto
how others who are supporters of the party would vote is inadmissible for such opinion is based on pureconjecture,surmise
and speculation. No one could predict how an elector who could not vote might have voted. In support of this propositionMr.
de Silva relied strongly on a passage from the judgment in Shiv Charan Singh v. Chandra Bhan Singh and Others (12)and onthe
observation of Grove .J in the Hacknev Case (13)
which were cited in the preliminary order (1989 1 Sri L.R.240at269and270).Thepassagethatwascitedinthe
preliminary order from Shiv Charan Singh's case reads as follows:
"The burden to prove this material effect (on the resultoftheelection)isdifficultandmanytimesitisalmost
impossible to produce the requisite proof. Electors exercise their right to voteonvariousunpredictableconsiderations,
and the Courts are ill-equipped to speculate, guessorforecastbyproceedingonprobabilitiesordrawinginferences
regarding the conduct of thousands of voters ...". (1989 1 Sri L.R. at 269)
The observation of Grove J. in the Hackney Case cited in the preliminary order reads thus:
"I cannot see how the Tribunalcanbyanypossibilitysay,whatwouldormighthavetakenplaceunderdifferent
circumstances. It seems to me a problem which the human mind has not yet been able tosolve,namely,ifthingshadbeen
different at a certain period, what would have been the result of the concatenation of events uponthesupposedchangeof
circumstances ... " (1989 1 Sri L.R. 270)

The point that is relevant and must be noted is that the Court inthepreliminaryordercitedthesetwopassageswhen
considering the meeting of the expression "were or may have been prevented" in s.91 (a). The court was at pains to pointout
the significant difference between the words "were" and "may have been". This is manifest from thereasoningoftheCourt
which appears just before the quotation from Shiv Charan Singh's Case. The Court reasoned thus:- "It seemstousthatthe
term 'may' was designedly used because mathematical proof that the majority of electors were in factprevented,inmanya
case, is impossible of attainment. The burden to prove that the majority of electors were in fact prevented is difficultand
it is almost impossible to produce the requisite proof". (1989 1 Sri L.R. 269) (1). We cannot agree with Mr.deSilvathat
there is anything in the preliminary order which precludes us fromconsideringtheevidenceledonbehalfofthe1st
respondent of acts of intimidation against his supporters. Indeed the Court overruled this veryobjectionandallowedthe
1st respondent to lead such evidence. That order made in these very proceedings is clearly binding on us. As statedearlier,
both in Ratnam's case and Pelpola's case the Supreme Court acted upon similar evidence. As submitted by Mr.Choksy,itwas
evidence of group leaders of voters that was adduced by the petitioners and acted upon by the Court. And it was on thebasis
of that kind of evidence that the Court set aside the election in these two cases.

Furthermore, in the preliminary order the Court held that one of the essential ingredients of the charge of"non-compliance"
set out in s.91 (b) is that the "result of the election should be affected". At the preliminary hearing Mr. deSilvaargued
the contrary, but in view of the ruling of the Court Counsel veryproperlyconcededthathecannotmaintainthe"non-
compliance" charge and abandoned it. The resulting position is that in so far as a charge under s.91(b)isconcerneda
Court must reach a finding as to whether the "noncompliance" affected the result of the election. A Court then mustconsider
the question whether the petitioner would have succeeded but for "the non-compliance". For thatpurposeevidenceofparty
affiliations would be relevant and admissible, notwithstanding the secrecy provisions. Would it thenbereasonabletosay
that the secrecy provisions do not apply to s. 91 (b) but that they apply to s.91 (a)? We think not.
Before we conclude the discussion of the interpretation of s.91(a)wethinkitfitandpropertoobservethatthe
construction sought to be placed on s.91 (a) by Mr. de Silva is not without attraction. However, there is adefiniteruling
made by this Court in these same proceedings, after a full argument, a ruling which runs counter to thesubmissionsofMr.
de Silva as we have endeavoured to show. It is scarcely necessary to repeat that this ruling is clearly binding on us.

The facts in relation to the charge of "general intimidation".
We now turn to the facts as presented by the petitionerandthe1strespondentinrespectofthechargeofgeneral
intimidation. We will consider the averments in the petition, the evidence led in support
thereof by the petitioner, and the evidence adduced by the 1st respondent in respect of each electoral districtassetout
in the petition.
Electoral District No. 01 - Colombo
Eleven incidents have been pleaded in the petition. The petitioner led evidence in regard to allincidentsexcepttheone
pleaded in paragraph 7 (i) (g). It is unnecessary to burden this order with details of theevidencegivenbytheseveral
witnesses since Mr. Choksy did not challenge these incidents. It is averred in paragraph (i)(a)thatalargenumberof
voters at two polling stations were forcibly prevented from voting but the evidence does not bear outthisallegation.The
other incidents related to bomb explosions at 4 polling stationsthe chief SLFPorganizerforDehiwelawasshotaton
17.12.88explosion of bombs at the SLFP branch at Woodlands Mawatha intheDehiwelapollingdivisionon19.12.88 the
disruption of the meeting at Belekkade junction in the Ratmalana polling division on 16.12.88 by the explosion of bombswhen
the petitioner was about to address the meeting3 persons were killed and 30 injured when bombswereflungatameeting
held on 17.11.88 at Grandpass in support of Mr. Ossie Abeygunasekera.
Mr. Choksy stressed that the evidence did not disclose the killing of any SLFP organizer or supporter. There are 574polling
stations in the Colombo electoral district but the evidence of incidents was confined to 7 polling stations.

As against this evidence, the 1st respondent led evidence of numerous killings,attacks,andthreatsofUNPorganizers,
office bearers of party branches and of supporters in the followingpollingdivisions:-ColomboCentral,ColomboNorth,
Homagama, Avissawella, Kolonnawa, Moratuwa, Kotte, Kesbewa, Kaduwela and Maharagama. A very large number oftheseincidents
took place from about mid-September 1988. About 26 office-bearers of local party branches were killed and 87wereattacked.
A large number received threatening letters and were compelled to putupbannersannouncingtheirresignationfromthe
offices they held in the party branches. They had no alternative but to refrain from engaging in any political work.Several
witnesses produced the threatening letters they had received. Some of the documents, purporting to be fromtheJVP,stated
that the UNP was a party that was banned. (vide 1 R 42 and 1 R 43) Some of the Jathika SevakaSangamaya(JSS)memberswho
were active in the election campaign were killed and some wereattacked.ItisinevidencethatJSSmembersactively
supported the UNP in the election campaign. It is unnecessary to consider in detailtheseanti-UNPincidentsbecausethe
incidents as such were not challenged in cross-examination.

Electoral District No. 02 - Garnpaha
Paragraph (ii) (a) of the petition speaks of an attack on the Dharma Salawa polling station No. 27intheGampahapolling
division on 19.12.88 by a gang of unknown persons. This incident was not disputed by Mr. Choksy.
Paragraph (ii) (b) alleges that unknown persons threw hand bombs at the Ganegoda pollingstationintheMirigamapolling
division. There is no evidence to establish this incident. According to Police Sergeant Hettiarachchi no incident tookplace
at the polling station on the polling day. All that happened was that on the night of 18.12.88 while he wasonpatrolduty
he heard a "loud sound" about 50 yards away from the polling station and he fired inthatdirection.Weaccordinglyhold
that this incident has not been proved.
Paragraph (ii) (c) The incident averred is the throwing of bombs at a meeting heldatKadawataon1stDecember1988in
support of Mr. Ossie Abeygunasekera. Four persons were killed and some others were injured. The incident isadmitted.Asa
result of this incident "a large number of people lost their enthusiasm to work for the SLFP".
There are 13 polling divisions in the Gampaha electoral district. Three incidents in 3 polling divisions are pleadedinthe
petition. While there are 717 polling stations in the electoral district, the petitioner complains ofincidentsonlyat2
polling stations. There is no allegation of any incident directed against the SLFP. As far as the case for the petitioneris
concerned, the evidence of general intimidation in this electoral district is weak.

The case for the 1st respondent, however, stands on a different footing. L. P. Julis, a strong UNPsupporterinDompewho
was to have functioned as a polling agent on 19.12.88 was shot dead in his houseon18.12.88 AnthonyAlmeida,President
JSS, Ja-Ela depot, was shot and killed on 14.11.88 at his residenceHubert Silva, ChiefOrganizer,Ragama,andPresident
UNP branch Ragama was shot dead on 18.1 1.B8 at this houseS. M. Gunadasa, President JSS, VeyangodaMills,waskilledon
19.11.88. About 9 office-bearers of UNP branches were killed from aboutmid-September1988.Therewereasmanyas133
resignations of members of the UNP branches as well as from membership of the JSS on account ofthreatsreceivedfromthe
JVP. Some of these persons were compelled to announce their resignations by insertingadvertisementsinthenewspapers-
vide 1 R 57A, 1 R 5713, 1 R 52A, 1 R 55A, and 1 R 54A.
Mathew Perera a member of the Western Provincial Council produced the letter 1 R 58. Thisletterreadsthus:"Resignation
from offices". "It is an act of treachery to serve the traitorous UNP - Thondaman Government that has betrayed the nationto
the Indian imperialists ... Therefore you are hereby ordered to resign forthwith from all the offices you hold.Penaltyfor
defying this order is death. No further notice will be given". There is a postscript which reads: "The UNPisaprohibited
party. It is an act of treachery to carry on their propaganda activities ...".

Electoral District No. 03 - Kalutara
The petitioner has pleaded 10 instances of intimidation and has led evidenceinrespectof9.Thepetitionerhasalso
pleaded posters threatening voters in the Agalawatte polling division.
Paragraph (iii) (a) alleges that an SLMP supporter Rev. Premaloka was shot dead atPanaduraon19thDecember1988.This
incident is not challenged.
The averment in paragraph (iii) (b) that a female voter who was on her way to the polling station on 19.12.88 wasshotdead
is not challenged. Nor is the allegation in paragraph (iii) (c) that a voter at Agalawatte was shot and injured disputed.
The incident pleaded in paragraph (iii) (d) is of a very serious nature,andwouldundoubtedlyhavedeterredmanySLFP
supporters from going to the poll. It refers to the shooting incident at the house of Dr. NevilleFernandoon18.12.88at
about 10.30 a.m. Eight persons were killed and several were injured consequent upon the shooting.
The item pleaded in paragraph (iii) (e) reads as follows:- "A bomb was exploded near the Kaluwamodera polling station No.43
in Beruwala polling division on 18th December 1988. Roads around polling stations were blocked and Junior PresidingOfficers
and clerks did not report for duty". We find that there is no evidence of a bombexplosionneartheKaluwamoderapolling
station. Nor is there evidence that Junior Presiding Officers and clerks did not report for duty. We are satisfiedthatthe
incident has not been proved.
In regard to paragraph (iii) (f) there is, evidence of a bomb explosion near the AndewelapollingstationNo.30inthe
Matugama polling division on 19th December 1988 at about 2 p.m. Voting was suspended for about 15 minutes and went on till4
p.m. There is, however, no evidence that the explosion caused roads to be blocked.
Paragraph (iii) (g) alleges that the Senior Presiding Officer at Gammana polling station No. 06intheAgalawattepolling
division was shot at and injured in the early hours of the. day of the poll, and that several bombswerethrown?nearthe
polling station. The evidence of the two witnesses called by the petitioner,namely,SeneviratneandAmerasenadoesnot
establish this allegation.
As against this the 1st respondent has led evidence of the killing of about15office-bearersofpartybranchesinthe
Kalutara electoral district from about mid-September 1988. There is the evidence of two strong UNPsupportersbeingkilled
at Agalawatte on 09.12.88. On 28.11.88 G. Wijesena, Secretary JSS Tibbotuwa branch was killedathishouseatnight.D.
Pathirage, a political activist in Bulathsinghala was shot dead on 10.12.88, as a bundle of UNP manifestos was discoveredin
his house. H. de Silva, a member of the UNP branch at Waskaduwa North was shot dead on 21.11.88. As a result of thiskilling
all members of the Waskaduwa North party branch resigned and put up banners. Martin Vithanage, an active JSS member wasshot
and stabbed to death on 08.11.88 in the Matugama polling division. After the killing a poster was found by theroadstating
that UNP traitors and stooges are punished with death. His widow and children left the village and did not vote. On18.12.88
there was a bomb explosion outside the house of Upali Wijekoon, a brother of the President of the local partybranch.There
were at that time 15 - 20 UNP supporters inside the house. On 19.12.88 20 Tamil estate workersonDelkeithestateinthe
Agalawatte polling division were intimidated and they did not cast their votes. Anthony Cooray,Vice-PresidentoftheUNP
Balamandalaya at Beruwela stated in evidence that there were 300 voters at St. Vincent's Home and 90% of themsupportedthe
UNP At the Presidential election, however, only 6 votes were cast.

Electoral District No. 04 - Kandy
In the Kandy electoral district there are 13 polling divisions and580pollingstations.Thepetitionerreliesonone
incident:- Shots were fired by unknown gunmen at voters who had gone to vote at Deliwalatenne. polling station(No.24)in
the Kundasale polling division on 19th December 1988. The incident is admitted. Further it is not disputedthatthevoters
were SLFP supporters and that they were unable to cast their votes.
The examination-in-chief of the witness P. Karunadasa called by the petitioner to speak to the incident isofrelevancein
view of Mr. de Silva's submission in regard to the provisions of law relating to the secrecy of theballet.Karunadasawas
injured by the shooting.
Q. Have you been a supporter of any political party?
A. No. I am a voter of the Sri Lanka Freedom Party.
Q. You said you gave support by voting?
A. Yes.
Q. For which party?
A. It was Sri Lanka party.
Q. What party, what was the symbol?
A. Hand, The leader is Mrs. Bandaranaike.
Q. From when were you a supporter?
A. From 1965 I am a supporter of that party.
Q. You said there were 6 persons who went along with you?
A. Yes, along with me.
Q. Did the others discuss with you where they were going?
A. We all were going to the polling booth.
Q. Did you know to which party they were supporting?
A. Yes, Sri Lanka Freedom Party.
In regard to the submission of Mr. de Silva that the party affiliation of voters is irrelevant, the evidence of witness
Dambakotuwa (the SLFP organizer for Kundasale) was that this shooting incident affected voters at other polling stations as
Q. After you visited Karunadasa at the hospital did you again go round your electorate?
A. Yes.
Q. You visited the polling stations?
A. Yes.
Q. What did you observe at these polling stations?
A. After getting the information of shooting at Delivalatenna supporters of the SLFP were frightened to come to the polling
stations to cast their vote.
Q. Was it only SLFP supporters who were frightened to come and vote because of this incident?
A. Mostly.
It is not without significance that the shooting was at SLFP supporters, and the evidence was that itaffectedmostlySLFP
supporters at the other polling stations as well. The extent of the "affectation" is seen from this evidence.
As against this single incident pleaded in the petition the 1st respondent has ledevidenceofthekillingofabout11
office-bearers and of about 26 other supporters from about mid-September 1988. On 16.12.88SarathandSisiraSubawickrema
(brothers) were taken out of their house and shot and killed. Sisira was the Secretary of the localUNPbranchandSarath
was a member of the branch. On13.11.88 one Dhanapala a strong UNP supporter waskilled.Theseincidentsoccurredatthe
Galegedera polling division. On 07.11.88 Nazeer Jamal, a UNP supporter was shot and killed at hisboutiqueneartheKandy
railway station. On 15.12.88 two organizersintwodifferentlocalareasintheKundasalepollingdivision(E.N.
Gunawardena and D. R.. Jayawardene) were killed. On the same day a UNP supporter named Kingsley Jayawardenewaskilled.On
the night of 18.12.88 3 persons named Najeem, Mani and Nisamdeen who were putting up posters and distributingpamphletsfor
the UNP were assaulted and had to be taken to hospital. On the same day R.W.Vidurusinghe,Secretaryofthebranchat
Putuhapuwa was shot and killed. In the Nawalapitiya polling division on 16.11.88 there wasanattempttokillH.L.P.
Tillakaratne, Chairman, Nawalapitiya Urban Council and a staunch UNP worker. Three other UNP supporterswhohadhelpedin
constructing the stage for a public meeting on 15.11.88 at Nawalapitiya were shot and killed on 16.11.88.
It is in evidence that Tamil workers at Craighead and Monte Cristo estates (in the Nawalapitiya pollingdivision)whowere
members of the CWC (and who were instructed by the Union to vote for the UNP) wereassaultedbetween10and11a.m.on
19.12.88 and thus prevented from voting. In the Senkadagala polling division 5 persons engaged in putting up posters forthe
UNP were cut with swords and killed on 18.12.88. H. E. Sumathipala, PresidentoftheUNPbranch,Morayaya,intheUdu
Dumbara polling division was shot and killed on 14.11.88. R. M. Gunathilleke, President of the UNP branch at Telagune inthe
same polling division was killed on 14.12.88. A UNP meeting at Wattappola in the polling division of Udunuwara wasdisrupted
on 13.12.88 and on the following day Kuda Banda, the President of the UNP branch at Wattappola was killed.
Kamala Randeniya (Secretary of the Kantha Samithiya, Muruthalawa branch in the Yatinuwara polling division) andherhusband
received threatening letters directing them to resign from all posts held by them in the UNP. On13.11.88herbrotherwas
killed. Thereafter she and her husband put up posters in front of their house. One such poster dated 15.11.88 marked 1R71
was produced. It reads thus:- "We Chandrapala Randeniya and Kamala Randeniya of No.86A,Muruthalawaherebyinformthe
patriotic comrades under oath that effective from 01.11.88 both of us have resigned from membership and other offices inthe
UNP and from offices in otherorganizationsandthatwewillnotparticipateinanypoliticalactivitywhatsoever

G. R. Abeysundera, M.P. for the Kandy district statedthatduringthe1988Presidentialelectioncampaigntherewere
numerous killings of UNP supporters in the Yatinuwara polling division. Further there were threatsagainstpersonsworking
for the UNP. A number of them resigned from the party and refrained from election work. It was his evidence that as aresult
of the threats the party activities in the electorate cametoacompletestandstill.Itwasnotpossibletogoout
canvassing and only a few supporters were willing to function as polling agents.

Electoral District No. 05 - Matale
Matale electoral district has 4 polling divisions - Matale, Dambulla, Laggala, andRattota.Thetotalnumberofpolling
stations is 170. The petitioner has pleaded 11 incidents and has led evidence on 10 incidents.Thepetitionerhaspleaded
threatening posters in all 4. polling divisions.
Paragraph (v) (a) This relates to the attack on the house of the SLFP organizer for Rattota onthenightofthe18thof
December 1988. This was an incident of a very grave nature.SixpersonsinthehousewerekilledincludingtheSLFP
organizer Wegodapola. The incident was not challenged. It would undoubtedly have frightenedvoters,particularlytheSLFP
supporters whose organizer was killed on the eve of polling day.
Paragraph (v) (b) The Madawala Ulpotha polling station was attacked on 19.12.88 while voting was going on and 4voterswere
killed. The SPO closed the poll by 12 noon owing to the shooting. The incident is admitted but evidence was led on behalfof
the 1 st respondent that the voters killed were UNP supporters.
Paragraph (v) (c) No evidence was led in support of the allegation that the GalewelapollingstationinDambullapolling
division was attacked.Paragraph (v) (d) The allegation here in that the Kalundawe polling station (No. 40)intheDambulla
polling division was attacked on 19.12.88 while voting was going on and that 2 voters wereinjured.Thereisnoevidence
that the polling station was attacked - vide the evidence of V G. Wijekoon Banda. No officer who functionedatthepolling
station was called. We hold that this incident has not been proved.

Paragraph (v) (e) It is alleged that the Elamalpotha polling station (No.18) in the Dambulla pollingdivisionwasattacked
on 19.12.88. The evidence does not support this allegation - vide the evidence ofS.M.Imamdeenwhoadmittedthatthe
polling station was not attacked. We accordingly hold that this incident has not been established.
Paragraph (v) (f) The murder on 17.12.88 of the SLFP organizer for Dambulla, T. B. Kulatunga, was not challenged. Mr.Choksy
submitted that Kulatunga's office was a very small one, consisting of only 2 rooms, one of whichwasusedasaboutique.
Counsel also stressed that the office was situated by a gravel road in Galahitiyagama which is a small village on theborder
of Dambulla polling division. These circumstances do not, however, detract from the important factthatKulatungawasthe
SLFP organizer for Dambulla and his murder on the eve of the election would undoubtedly have driven fear intothemindsof
the voters, particularly the SLFP supporters. At one stageofthecross-examination,thefactthatKulatungawasthe
organizer was challenged but later this was not pursued.
Paragraph (v) (g) The burning of the office of the SLFP at Walawela on 13.12.88 was not disputed.Thiswouldhavehadan
adverse effect on the SLFP campaign.
Paragraph (v) (h) The throwing of bombs at the SLFP main office in the Matale townon16.12.88at5a.m.wasalsonot
challenged. This too was an incident which would have affected SLFP supporters.
Paragraph (v) (i) The shooting on 09.12.88 of the President oftheSLFPbranchatAluthgama,isnotchallenged.This
incident would have had an adverse impact on the SLFP supporters.
Paragraph (v) (i) The averment here is that:- "posters appeared before the election day warning people not tovoteforthe
SLFP". The evidence of C. W. Abeyratne shows that in Madipola in theDambullapollingdivisionpostersappearedstating
"death for supporters of the SLFP". The witness Chandawimala Thera said he saw posters which read "Refrainfromvotingfor
the SLFP" in 4 places in the Matale polling division. There is also the evidence of Haniffa Hadjiar to thesameeffect.We
hold that the averment in paragraph (j) has been proved.
Paragraph (v) (k) It is averred here that gangs of unknown persons went from house to house warning persons not to vote.The
evidence of O. W. Abeyratne, Upatissa Banda, D. D. Kannangara and Chandawimala Thera establishes this fact.
On a consideration of the above evidence we hold that there was considerable intimidation directed at the SLFP supportersin
the Matale electoral district as a result of the killing of 2 SLFP organizers,theattackson2SLFPoffices,andthe
posters specifically warning people not to vote for the SLFP

The 1st respondent led evidence of resignations of office-bearers in the local party branches and of a very largenumberof
JSS members who were compelled to resign on account of death threats.DistrictSecretaryoftheJSS(CentralProvince)
Sydney de Soysa said in his evidence that there were about 2500 workers in the 6 C.T.B. depots that fall within thedistrict
and that 2150 are members of the JSS. Premasiri, the President of the JSS, Matale depot was shot at in November 1988 andthe
result was that the election work done by the JSS came to a standstill. Practically all the office-bearers ofthe6depots
resigned from their posts. He was questioned as to the kind of political work done by the JSS members duringelections.His
answer was, "They assist in fixing posters, if there is to be a rally, they help to constructthestage weorganizebig
meetings. We do in short propaganda work". But at the Presidential election the JSS members were unabletoengageinsuch
The evidence further shows that about 10 office-bearers in party branches and about 15othersupporterswerekilledfrom
mid-September 1988 in the Matale electoral district. On 18.11.88 K. G. Loku Banda a staunch partysupporterintheMatale
polling division was, killed. The treasurer of the Kotuwegedera branch was killed on22.11.88andamemberofthesame
branch was shot at in the course of the same incident. A prominent UNP worker M. J. Shahabdeen from Madipolawaskilledon
17.12.88. On the same day A. L. M. Sarada, chief organizer of Undugoda Palle Siyapattuwa was attacked.

There was evidence of a somewhat unusual incident that took place on 17.12.88 in the Laggala polling division.BisoMenika,
a strong UNP supporter was threatened, her hair was cut and was ordered to carry a poster and cycle a distanceof15miles
up to Hettipola and back to her village, passing through 7 villages. She produced the posters (1 R 81 and 1 R82)andalso
produced the cut hair in court. The poster reads, "This is the punishment for finding fault with the patriotic comrades".By
the 15th of December most of the UNP chief organizers of the Laggala polling division had resigned owing to death threats.
It is unnecessary to enumerate the other incidents relating to the killings of,andattacksonoffice-bearersandparty
supporters. There is little doubt that the intimidation directed against the supporters ofthe1strespondentwasbyno
means insignificant.

Electoral District No. 06 - Nuwara Eliya
Paragraph (vi) (a) reads thus:- "A large number of voters of Thibbotugoda polling station (No. 21).Rupahapollingstation
(No.44) in the Walapone polling division were forcibly prevented from voting for the candidate of their choicebygangsof
unknown persons who had blocked the access roads to the polling stations". There is the evidence of T B. Wickremasinghethat
a water channel had been diverted across the access road to Thibbotugoda polling station. There were552registeredvoters
but only 2 votes had been cast. As regards Rupaha polling station there is no satisfactory evidencetoestablishthatthe
access road was blocked.
Paragraph (vi) (b) Although the allegation here is that the houses of SLFP supporterswereburntinBeramanavillageon
04.12.88, the-evidence of the Police officer establishes that only one house of an - SLFP supporter wasburnton07.12.88.
This is not challenged.
There are 272 polling stations in the electoral district but the petition refers to incidents inonly2pollingstations.
There is no complaint in respect of threatening posters. The voter turn-out at thePresidentialelectionwasashighas
Electoral District No. 07- Galle
Paragraph (ivA) (a) states that for 2 weeks prior to 19.12.88 unknown persons threatened A. M.Karunaratne,SLFPorganizer
for Ambalangoda and his wife at their house. This is clearly proved by the evidence of Karunaratne and his wife. In factthe
incident is admitted.
Paragraph (ivA) (b) alleges that the house of Saman de Silva co-organizer for Ambalangoda was burnt.Thisincidenttoois
not challenged.
There is evidence of threatening posters in the polling divisions of Ambalangoda, Balapitiya,Bentota-Elpitiya,Karandeniya
and Ratgama.
On the other hand the evidence led on behalf of the 1st respondent shows that about 40 office-bearers of party brancheswere
killed from mid-September 1988. B. G. Bandusena, Secretary, Dorallabranch,OsmundJayasooriya,SecretaryYouthLeague,
Mahawatte, S. Wimalasooriya, Treasurer, Patabendimulla branch,G.K.Y.Lokuge,SecretaryIllukpitiyabranch,P.V..
Piyadasa, President JSS branch at the Plywood CorporationGintota, were all killed in the months ofOctober,Novemberand
December 1988. In many instances a poster was found by the body of the deceased stating that the reason for thekillingwas
working for the UNP In the Balapitiya polling division 5 strong UNP supporters were tied together and killed on 19.11.88.M.
M. Nandasena, Secretary UNP branch Nugaduwa in the Akmeemana polling division was killedon09.11.88.IntheAmbalangoda
polling division alone 16 office-bearers and supporters were killed between 23.10.88and12.12.88.Consequentuponthese
killings several local organizers and office-bearers resigned from their posts by displaying banners and putting upposters.
The election campaign and the organisation suffered a serious setback. In addition there is evidence of postersspecifically
directed against the UNP and its supporters in the Ambalangoda, Bentara-Elpitiya, Habaraduwa, Galle, Baddegama,Karandeniya,
Balapitiya and Hiniduma polling divisions.

Electoral District No. 08 - Matara
Paragraph (vii) (a) The petitioner relies on one incident, viz. a large number of voters of Buddha Jayanthipollingstation
(No. 08) of Hakmana polling division were prevented from voting for thecandidateoftheirchoicebygangsofunknown
persons who had blocked the access roads to the polling station. The petitioner called 2 witnesses (Amaradasa andSethupala)
but their evidence is completely contrary to the allegation inthepetition.AccordingtotheevidenceoftheSenior
Presiding Officer Amaradasa, he reached the polling station and the road hadbeencleared.Weacordinglyholdthatthe
allegation has not been proved.
The petitioner led evidence of intimidatory posters in thepollingdivisionsofHakmana,Akuressa,Deniyaya,Weligama,
Devinuwara and Kamburupitiya: There is one witness, Sumanawathie Pahalage, of Akuressacalledbythepetitionertogive
evidence on posters who admitted in re-examination that the killings affected mostly the UNP and its supporters.
The Matara electoral district consists of 7 polling divisions and there are 358 polling stations. The 1st respondent hasled
evidence of killings and attacks on his supporters in the polling divisions of Kamburupitiya, Akuressa,Deniyaya,Weligama,
Devinuwara and Hakmana. The evidence shows that 53 office-bearers of UNP branches and other supporterswerekilledbetween
September and December 1988. H. H. Sirisena, President of Ududamana party branch in the Kamburupitiyapollingdivisionwas
shot and killed on 27.09.88 and his head was severed from the body. K. Siyaneris, organizer fortheUNPatDiganahenain
Akuressa polling division was shot and killed on 15.10.88. M. L. Diyonis, the organizer for Pahala Maliyaduwa wasshotdead
on 18.09.88. R. Vettasinghe, Secretary of the Malimbada Youth League was shot dead on 07.12.88. A posterputupafterhis
death stated that he was killed by the JVP because he supported the UNP. On 12.12.88 K. G. W.Rajapaksa,Superintendentof
WiIpita State Plantation and a staunch UNP supporter was killed in his office. A. R. Siriwardena, an active UNP worker anda
member of the JSS who worked during the Presidential election campaign was stabbed to death on17.12.88.Afterhisdeath,
posters appeared stating that he was killed because he was a staunch UNP supporter.OnthesamedayanotheractiveUNP
worker was killed and posters appeared later giving the reason for the killing - that he was a supporter of the UNP.Francis
Weeraman, another strong UNP supporter was shot and killed on 18.12.88. After his death posters appearedstating"deathis
the punishment for traitors who worked for the UNP". It is in evidence that almost all the office-bearers of theJSSbranch
of Matara C.T.B. depot resigned in October 1988 consequent upon receiving threatening letters.On09.12.88R.P.Gamini,
Secretary of the Urubokka Bala Mandalaya and an undergraduate of the University of Ruhuna was killed.
V.P.Abeywickrema, a member of the Provincial Council for the Southern Province statedinhisevidencethatthenumerous
threats and killings of UNP supporters seriously affected the election campaignandorganisationalworkoftheUNP.He
further said "ail this affected the voting of the UNP supporters at the election". D. A. Wickremasinghe, M.P. for theMatara
District also testified to the effect the attacks and the killings had on the election campaign:
Q. At the time of this Presidential election campaign of 1988 what was the state of the UNP organizations at village level?
A. Our organization had got paralysed at village level because some office-bearers had been killedandsomehadleftthe
Q. As a result what was the effect of this on the Presidential election campaign of 1988 of the UNP?
A. Our organisational capacity became very much weakened.
Q. Were you able to hold meetings at village level?
A. No ...
Q. Were you able to go house to house canvassing?
A. No.
Q. The normal election work could not be done?
A. That is so.
Q. Were you able to get polling agents?
A. No, we were unable to get.
Electoral District No. 09 - Hambantota
Paragraph (viii) (a) reads thus:- "SLFP organizer(R.Dharmasena)whowasinchargeof27pollingstationsinthe
Mulkirigala polling division was shot dead by unknown persons on 15.12.88". This incident has not been challenged. Thewidow
Kusumawathie spoke to the circumstances in which her husband came by his death.
Paragraph (viii) (b) The incident pleaded here is that another SLFP organizer, Dissanayake, who was in charge of15polling
stations in the Mulkirigala polling division was killed byunknownpersonsbeforetheelections.Thiskillingtoois
admitted. It would appear that he was killed on the night of 14th December 1988.
The killing of the SLFP organizers in the Mulkirigala polling division would undoubtedly havehadagraveimpactonthe
supporters of the SLFP. The petitioner has also led evidence of intimidatory posters in all the 4 pollingdivisionsinthe
Hambantota electoral district.
The 1st respondent led evidence of threats, attacks, and a few killings of office-bearers and party supporters during the
Presidential election campaign. Harry Abeydeera, M.P. for the Hambantota district testified to the effect of those
Q. And for the Presidential election in 1988 could your party organization in Beliatte electorate function at all?
A. No.
Q. Was your UNP organization in the Tissa electorate also able to function for this Presidential election in 1988?
A. No.
Q. In Mulkirigala?
A. No.
Q. And in Tangalla too was the position the same?
A. Yes.
He also referred to the meetings held in support of the 1st respondent at Katuwana on 12.11.88, at Beliatte on 20.11.88 and
at Tangalla on 27.11.88, all of which proved to be a failure owing to bomb explosions and shots being fired in the vicinity
of the venue of the meetings. At the meeting at Tangalla posters appeared warning people not to attend the meeting. UNP
polling agents too were afraid to function at the polling stations in the Hambantota electoral district.
Chamal Rajapakse, M.P. for the Hambantota district called by the petitioner admitted that persons from families who were
known to be supporters of the UNP were killed in Walasmulle and Middeniya. This was between 10th November and 19th December
1988. When asked whether the UNP "suffered from the killings of its party supporters and workers", his answer was "that
started with the signing of the Accord".
Electoral District No. 15 - Kurunegala
The Kurunegala electoral district has 14 polling divisions and 638 polling stations. At the 1988 Presidential election the
voter turn-out for the Kurunegala electoral district was 50.05%. Apart from the incidents set out in the petition,
intimidatory posters have been pleaded in 4 polling divisions.
Paragraph (xi) (a) The averment here is that the access roads to the Kudagalgamuwa polling station (No. 10) were blocked and
voters were harassed by gangs of unknown persons.
The petitioner called 5 witnesses. Two of these witnesses (R. M. Tilakaratne and R. M. Punchi Banda) remainedatMinhettiya
which is about 3 miles away from Kudagalgamuwa and could not have knownwhethertheaccessroadswereblockedornot.
Witness S. B. M. Ranasinghe had walked from Edandawela to Kudagalgamuwa and denies the existence ofroadblocks.Theonly
witness who speaks to road blocks is T M. Ranbanda. It is thus seen that theevidenceisofacontradictorynature.We

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