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PUBLIC RECORD OFFICE
Reference :-
C.O.882/11
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-
SIR.
a
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Enclosure 3 in No. 3.
Kandy Election Petition.
Chief Justice's Chambers (On Circuit), Kandy,
11th December, 1924. THE election petition, which I have just tried at Kandy, has disclosed what appear to me to be certain defects in the law as laid down in the Ceylon (Legislative Council) Order in Council, 1923," and the Rules made in accordance therewith, and I have the honour to bring these defects to Your Excellency's notice.
2. The law as formulated in the Order in Council and the Rules above referred to, is based, partly upon the Corrupt and Illegal Practices Prevention Act, 1883. and partly upon the Ballot Act, 1872. Enactments based upon certain provisions of these acts have been incorporated in the Order in Council, and other portions of the But wide depar- same acts have been embodied in the Rules in the Schedules, with certain modifica- tions, designed, no doubt, to adapt them to local circumstances. tures have in certain instances been made, and I question whether the effect of these departures was intended or realized.
3. The defects in question may be briefly stated as follows:--
(a) The Judgment of an Election Court has no disqualifying effect upon the Disqualification is only effected by independent unseated candidate. proceedings before a Police Magistrate. (Article XLIV.)
(b) Treating by agents does not disqualify the candidate for the purpose of a
subsequent election. (Article XLIV.)
(c) Undue influence by agents does not disqualify the candidate for the pur-
pose of a subsequent election. (Article XLV.)
(d) Â candidate is not made responsible for the abetment or procuring of personation of his agents, but only for personation actually committed by his agents. (Article XLIII.)
(e) There is no power to give relief in respect of trivial and unimportant
treating. (Article XLIV.)
(f) It is nowhere stated to what extent an "illegal practice" invalidates an
election. (Article XXXVIII.)
I will proceed to discuss these defects in greater detail.
Dis- 4. Disqualification of candidate. The judgment of an Election Court (unlike that of an Election Court in England) has of itself no disqualifying effect. qualification can only be effected by independent proceedings before a Police Magis-
This is open to objection from every point of view.
trate.
(a) From the point of view of legal procedure, because it provides for ques- tions which have already been decided by a judge of the Supreme Court being re-opened and decided afresh by an inferior tribunal.
(b) From the point of view of the successful petitioner. because he cannot realize the fruits of his victory without taking the invidious course of instituting a criminal prosecution against his unseated opponent.
(c) From the point of view of the unseated member, because it may require him, after undergoing the ordeal of an election petition and losing his seat, to submit to the further ordeal of a criminal prosecution.
(d) From the point of view of public policy. It may well he that no prosecu- tion will be instituted. In that case the unseated candidate may at once stand again, and be re-elected in the very constituency in which his corrupt practices were committed.
5. Under the English law, the report of the Election Court itself imposes upon the candidate various degrees of disqualification, subject in certain cases to appro- priate relief. (See Sections 4. 5. 11. 22 and also Section 33 (7) of the Corrupt and I submit to Your Excellency that our own Illegal Practices Prevention Act. 1883. law should be brought into accord with the English model.
Under Article XXXIX treating by an agent 6. Disqualification for trentina. voids the election. But under Article XLIV, a candidate is only disqualified if he has himself been guilty of treating. He cannot be convicted, unless he himself has acted corruptly. The words "by himself or by any other person" do not make him criminally responsible for any corrupt intention entertained by an agent. merely provide for cases in which he has corruptly made use of the instrumentality of another person. The result is that though a candidate might be unseated for treating by his agents. no amount of treating by agents, however extensive, would disqualify an unseated candidate from standing again.
They
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7. Disqualification for undue influence. A candidate can be unseated under But Article XLIV, Article XXXIX for undue influence exercised by his agents.
the disqualifying article, again, in my opinion, only refers to undue influence exer- eised by the candidate himself with an improper intention. The result is that a candidate's agent might make use of the most extensive intimidation but the unseated candidate might nevertheless stand again.
8. Personation. The law as regards personation under Article XXXIX appears to be defective. Under that article, a candidate is not made responsible for the abetment of personation by his agent, but only for personation committed either by himself or his agent personally. It was alleged at the recent petition that the agents of a candidate had in fact procured the personation of certain voters, who were dead, or had left the Colony. But it proved impossible to go into these charges, owing to the fact that such a circumstance, if proved, would not affect the result of the election. In the English law of 1883. Section 3, which corresponds to Article XXXIX (2) of the Order in Council, it is expressly provided that the abetment. aiding, conspiring, procuring, the commission of personation and every offence which is a corrupt practice shall itself be a corrupt practice. This provision appears to have been omitted by an oversight.
9. Treating. Under the law as laid down by Article XXXIX of the Order in Council, any act of treating or undue influence as defined by Articles XLIV and XLV, for which the candidate is responsible, automatically voids the election, how- Under Section 22 of the English Act of ever trivial the act complained of may be. 1883, power is given to the Election Court on certain conditions to give relief to the candidate, where the offence is of a trivial, unimportant and limited character. It appears to be desirable that an Election Court in Ceylon should have a similar power. 10. Illegal Practices. Under the Order in Council and the Rules made there- under, nothing definite is said as to the effect upon the election of the proof of the commission of illegal practices. Under Article XXXVIII, it is declared that con- traventions of certain rules which the Governor in Executive Council is authorized to make, shall be deemed illegal practices. The same rule may declare that any of these illegal practices shall be the ground for the presentation of an election petition. But nothing is said as to the powers of the Court in the event of any such practices With regard to corrupt practices, the position is being proved to have taken place. clear. Article XXXIX declares that no clection shall be valid, if any corrupt practice is committed in connexion therewith by the candidate elected, and a corrupt practice is deemed to be committed by the candidate, if it is committed with his know- ledge and consent, or by a person who is acting under his general or special authority. This express provision as Thus a single corrupt practice may void the election. regards corrupt practices renders very emphatic the absence of any such provision with regard to illegal practices. The Court is thus left in this position: It might rule that proof of a single illegal practice, however trivial, would invalidate the élection. This is hardly possible in view of the express provision as to corrupt practices, and the absence of any such provision with regard to illegal practices. The only other alternative is to rule that the judgment of the Court must depend upon the extent to which illegal practices have prevailed, and their possible effect upon the result of the election. This is in accordance with the principles of English Common Law governing elections in other matters, and it is in fact the test which has been adopted in England for the purpose of Municipal elections. See 47 and 48 Vict.c.70, The adoption of this principle, however, might well involve very extensive and costly inquiries.
This is not a satisfactory position, and in England in the case of parliamentary elections, the law is very different. By Section 11 of the Act of 1883, it is provided that if any illegal practice is proved to have been committed by or with the know- ledge and consent of the candidate, he shall be subject to certain disqualifications. and his election shall he void. If an illegal practice has been committed by any agent of the candidate, the candidate is subject to a lesser disqualification, but his election is void. An English Election Court has, however, power to give relief to a candidate against the voidance of the election, or his personal disqualification by reason of an See Section 22 of the Act of 1883. It illegal practice on certain very strict terms. has further power to give him relief against the penal consequences of his offence in criminal law. The Rules made under Article XXXVIII do in fact provide a means of relieving the candidate of the penal consequences of an illegal practice, but they do not and could not provide a relief against the voidance of the election. I would
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