An election petition was filed in the Court of Appeal where the petitioners challenged an election on the grounds of corrupt practice citing two statements alleged to have been made by the respondents to a newspaper (Gunasinghe Banda v. Navinna and Others - SLR - 207, Vol 3 of 2000 [2000] LKCA 21; (2000) 3 Sri LR 207 (1 August 2000).
The Appeal Court judgement excerpt that addresses the key issue reads as follows: “The petitioner has come to Court alleging two grounds of corrupt practice based on two
different interviews said to have been given to the Lakbima newspaper by the first and second respondents respectively. In paragraph 12 of the supporting affidavit, it is averred that the first respondent “subjected himself to an interview through a journalist by the name of K. Dasanayake Bandara and that the said interview was carried in a particular issue of the said newspaper. Paragraph 17 of the affidavit alleges that the second respondent granted an interview to one Sampath Deshapriya and that the newspaper carried an interview. There had been no affidavits from either of the journalists.”
However, Court took up the view that nowhere in the affidavit of the petitioner is it said that he was present when either of the interviews was granted.
Everything in the case turned on whether in an affidavit hearsay evidence — i.e. about something the petitioner heard, but was not aware of through personal knowledge, could be admitted.
Court held: “(4) The legal requirements of an affidavit are set out in Sections 181, 182 and 437 of the Civil Procedure Code. Section 181 bars hearsay and an affidavit which constitutes hearsay is bad in law and cannot be acted upon. VideDavid & Company v. Albert Silva (3), Simion Fernando v. Gunasekara (4).”
However, some rather convoluted arguments were made on behalf of the petitioner. The petitioner’s counsel argued that Section 98 of the Provincial Councils Elections Act No. 2 of 1988 does not require an election petition to be supported by evidence. Therefore Counsel argued that the affidavit supporting the petition does not necessarily have to contain evidence — and whether it’s hearsay evidence or not therefore is not a question that arises.
However, Court held firm to the view that any affidavit must be sworn according to the Oaths and Affirmations Ordinance, and the Civil Procedure Code which at Section 181 indicates that affidavits shall be confined to the statement of such facts as the declarant is able of his “own knowledge and observation to testify” to, except on interlocutory applications in which statement of a person’s belief may be admitted, provided that reasonable grounds for such belief be set forth in the affidavit.
Considering that an affidavit could contain only such facts as a declarant is able of his own knowledge and observation to testify to, and hearsay could not be included as contents of an affidavit, Court made judgement on the case in the context of that particular interpretation of the law.
Court held: “In the instant election petitions, the petitioners were not able to state when and where the alleged statements were made by the respondents other than the producing of a copy of a newspaper, the publication of which was obviously subsequent to the date of making of such statement if such a statement was in fact made. The date and the place where the alleged statements were made are not stated in the affidavits.” The election petition was dismissed.
On the subject of election petitions, the case of Mediwaka and Others v. Dayananda Dissanayake, Commissioner of Elections and Others (SC FR ApplicationNo.412/99, 2000) is a study in how the law is interpreted concerning election malpractice, i.e., ballot stuffing, etc. on election day. The Commissioner of Elections did not annul the election despite the widespread violence and ballot stuffing against the petitioners, and in his defence it was argued by Counsel that he could not annul the poll unless the result of the entire District would have been affected by his not doing so. However, Supreme Court held that though there is a prerogative not to annul if there are specific incidents such as a roof leaking at the election booth — which may have caused some interruption of the voting process — the officials are obliged to annul the poll if there is widespread fraud and malpractice which they are aware of.
It was held in judgement: It is true that Section 46A(2) does not require an automatic annulment of the poll for each and every non-compliance.
The word “may” confirms that the first respondent (the Commissioner of Elections) has a discretionary power.
However, that is a power coupled with a duty: whenever it appears that the proved non-compliance has interfered with a free, equal and secret ballot, that discretion must be exercised.
It is only where the lapse was trivial, and had no effect on the rights of electors that the Commissioner could properly refrain from exercising that discretion: as, for instance, if the poll had commenced a few minutes late (or concluded a few minutes early), or was interrupted for a few minutes by some accident or misfortune (e.g. a member of the polling staff being taken ill, or a sudden rainstorm causing a leak in the roof of the polling station, or a drunkard creating a disturbance). If it appears that no one was consequently prevented from voting, it would be an improper exercise of discretion to annul the poll: the word “may” permits the application of the principle that de minimis non curat lex.”
It was not necessary to decide whether the Commissioner could annul the election because some voters were affected by some freak occurrence not related to their political views. This was a case of organized violence. Very different considerations apply to organized violence calculated to influence the poll significantly by deterring one section of the electors.
The fact that it was held that elections should be annulled if there was no proper polling that took place within the meaning of free and fair adult franchise, makes the case a landmark judgement with regard to free and fair polls in this country.
