It happens even in the land of preachers!

To the East of us, the October election in Sri Lanka has drawn some caustic comments except from the 100 or so foreign observers who thought the voters had a fair go at freely expressing their political opinions.

Unfortunately these foreign observers from such reputed bodies as the European Union and the Commonwealth, were not privy to the candid observations of the Sri Lanka voters on their observations as foreign observers.

Were they aware of half what had been said about their observations they would never ever take the risk of returning to Sri Lanka lest they be recognised as one of those responsible for penning those immortal words-generally a free and fair election.

To the many thousands who were intimidated, impersonated and their polling cards forcibly taken under threat with the resultant loss of their vote, the heavily sugar coated words of foreign monitors would appear to traduce the fundamentals of the democratic process.

It was not for nothing that shortly before the October elections this column warned not to be taken in by the impressive names of international or regional organisations under whose aegis the monitors will parachute into five-star hotels, watch some voting in one or two districts and then draw weighty conclusions therefrom.

What happens in the stealth of the night when armed men in uniforms which they scarcely thought of hiding walked into houses, threatened inmates and walked away with their polling cards seems to have escaped the foreign bodies.

Scant wonder, because when such shenanigans happen the foreign bodies are warmly ensconced in their five-star hotels their work for the day-whatever that was- been done.

Now turn West from the vantage point in London. The world's sole super power, having vanquished the Reds and having bombed Milosevic not into submission but to try and attempt a quick election fix, now finds itself in an unprecedented contretemps.

Whatever one thought of US elections-which is basically a corporate financing job with some corporations funding both sides like some of our own mudalalis-a clear winner emerged most often.

So all those shortcomings and anachronisms that go to make the US electoral system rarely surfaced- except in some learned quarterly or other academic or legal work- and so did not cause public concern or consternation.

Then suddenly it happens. It may be because the American public was faced with such a couple of mediocrities that they found the choice so hard. What indeed was there to choose between Twiddledee and Twiddledum- not even a rattle.

It is only when confronted by an election which has still to be resolved that all the warts of the election system started appearing.

It is perhaps more than ironical that American and international attention came to focus on the State of Florida which receives enough attention anyway. It is not simply that this is where most of the American rich live. Many of them couldn't care less who was sitting in the White House because they will continue to make their millions. Unless of course they happen to be arms manufacturers and had Defence Department contracts or were selling one thing or the other to State agencies and making a quick buck or two.

It is also where there are many immigrants and poor people who could be intimated and robbed of their rights by official or unofficial goons.

And it is also the State where the brother of George W. Bush just happens to be governor.

So what do we find. Ballot papers printed in such a way that people have been misled into voting for the wrong candidate. Well that is partly the fault of the voters who should have been sufficiently careful. But how does one account for missing ballot boxes and voters being given ballot papers that had already been marked and still others being disenfranchised? This is not the Kandy district but the State of Florida, mind you.

For decades the Third World has been preached to about democracy and the need to uphold democratic values. The West led by the US has even gone to war in the name of democracy and to tame recalcitrant nations.

Almost a decade ago the Commonwealth leaders adopted the Harare Declaration in which they vowed to promote democracy and democratic values such as the rule of law, free and fair elections, freedom of speech and so on.

Four years later it adopted the Millbrook action programme which gave teeth to the Harare Declaration and set out a mechanism by which persistent violators would be warned and then be brought to book.

Now look to the South, broadly speaking, of the UK. Only the other day President Robert Mugabe publicly defied the Supreme Court of Zimbabwe which had ordered that occupations of white-owned farms were illegal and ordered the police to evict those who had occupied them.

Mugabe went to the extent of saying this was the people's land and subsequently 50 other farms were occupied. The judiciary was being undermined by the executive.

So what will the Commonwealth or the West do to Mugabe?

Nothing because those who have occupied the moral high ground and thought they were sitting on Mount Olympus are as guilty of violating democratic values and the norms of civil society as those Third World countries which are regularly chastised for their political behaviour.

Surely people must ask themselves how it is that all these violations of free and fair elections happened in the State run by the brother of George W. Bush, a candidate in the election.

Were those goons involved in the fixing of the election in the Kandy district airlifted by the Republican Party as advisers to its presidential candidate?

The world's leading technological nation and Silicon Valley notwithstanding, votes were being recounted by hand because there was greater trust in the age-old method than the computer system. Nothing will surprise the public any longer about elections whether they are held in the East or West.

Surely it is time somebody started a website for voters across the world. Voters of the world unite. You have nothing to lose but your ballot.

Beware of adultery

By Dr. C. Ananda Grero 

In the case of adultery, one of the spouses should have intercourse with a person out of lawful wedlock (the married state). The person that is, either the husband or the wife, when he or she commits adultery is known as adulterer or adulteress. There should also be another person with whom adultery is committed or intercourse has taken place.

When one considers the history of "adultery" from the earliest times it was regarded as a heinous crime as it wounded the feelings of the other. It so happened in ancient times the husband had the right to kill an adulterous wife if she was caught in the act of adultery. With the development of civilized society, this right was done away with. Hayley in his book on the Laws and Customs of the Sinhalese states that according to the earliest Sinhalese laws, the murder of an adulterer was condoned. This shows adultery was regarded as a serious act which caused great mental pain to the innocent spouse, and where even the death of the adulterer was permitted. However, with the passage of time adultery was not regarded as an offence, but as a grounds for obtaining a decree of divorce to terminate the marriage. 

Section 597 of the Civil Procedure Code states that any husband or wife may present a plaint to the District Court where he or she resides, praying that his or her marriage may be dissolved on any ground for which marriage may by the law applicable in Sri Lanka be dissolved. The law applicable is found in the Marriage (General) Registration Ordinance. One such grounds is adultery. 

Section 598 of the Civil Procedure Code makes it essential that when such plaint is presented by a husband in which the adultery of the wife is the cause of action, he the plaintiff shall make the person with whom adultery is committed a co-defendant to this action unless he is excused from doing so on one of the following reasons. Under this section such a person is known as "adulterer". 

The reasons are : (a) The defendant, that is the wife is leading the life of a prostitute and the plaintiff does not know the person with whom adultery has been committed. (b) That the name of the alleged adulterer is not known to the plaintiff husband although he made efforts to discover it. (c) The alleged adulterer is dead. 

The person who alleges adultery must prove that the defendant to the case (may be either the wife or the husband) has committed adultery and this also should be clearly proved. The reason is, the law presumes the innocence of the defendant and the burden is on the plaintiff who files the divorce case to rebut this presumption. Shirani Ponnambalam in her book 'Law and the Marriage Relationship in Sri Lanka' states that in Sri Lanka, the courts have been firmly of the view that the standard of proof required to establish adultery is the highest, namely, proof beyond reasonable doubt, (Page 344). Our Supreme Court has expressed the view from the earliest time that the proof of adultery in adverse case must be like in a criminal case beyond reasonable doubt. In the case of Jayasinghe v Jayasinghe (55 New Law Reports, Page 410) Justice Gratiaen held, that the same standard of proof necessary to prove a criminal charge in a criminal case is required to establish a charge of adultery in a divorce case.

Even in a more recent case, Dharmasena v Navaratne, Chief Justice H.N.G. Fernando held that proof beyond reasonable doubt is necessary for proving adultery. In this case it was further held that in a divorce action filed by a husband, statements made outside court by the defendant wife, admitting adultery cannot be used against the co-respondent (person with whom adultery is committed) in proof against him of an act of adultery.

In fact in the said case Chief Justice Fernando observed in his judgment: "Had the District Judge reminded himself of the principle that the wife's confession was not evidence against the co-respondent (person with whom sexual intercourse she had) and of the further principle that the general standard of proof beyond reasonable doubt applies for proof of adultery, I do not see how he (the judge) could have found the charge (i.e. of adultery) proved against the 2nd defendant (co-respondent) on such tenuous (very slight) material." The Supreme Court set aside the decree awarding damages against the 2nd defendant and the finding that he committed adultery with the 1st defendant (wife).

The provisions of the Civil Procedure Code permit the plaintiff who claims a divorce on the ground of adultery to claim for pecuniary (in money) damages against such co-respondent. However, the court should be satisfied "that he committed the act of adultery with the defendant, that is the wife of the plaintiff, before such damages are awarded."

One can imagine the hurt feelings of a husband when his wife commits adultery with another person. Law in its wisdom thought at least to compensate his injured feelings some sort of relief should be granted to him in addition to the grant of a decree of divorce in his favour. Various standards have been applied from time to time in assessing the quantum of damages Shirani Ponnambalam in her book 'Law And The Marriage Relationship in Sri Lanka' states: "The reprobation (i.e. strong condemnation) of society is adequately manifested only if one admits that the quantum of damages should vary with the degree of impropriety (an improper) and gravity of misconduct. Consequently, it must be ensured that the quantum of damages the defendant (i.e. the co-respondent) is ordered to pay is substantial enough so as to inflict a penalty on the co-respondent."

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