Cur. adv. vult.
DE KRETSER J.—Saravanamuttu v. de Silva.
Mr. T. M. Fernando, Proctor, on behalf of the respondent to inspect—(1) the registers used at all the polling booths by the presiding officer atthe election in question, marked in terms of Article 38 (2), despatched tothe Returning Officer in terms of Article 44 and retained in terms ofArticle 45 (9), and (2) the tendered votes lists (vide Article 44 (1) (c)The motion is entitled “In the Supreme Court of the Island ofCeylon
“ Election Petition No. 1 of 1941 ”, and it will be noted that in thebody of it the motion refers to “ Your Lordships’ CourtThis motion was submitted to me in chambers and I made order thatthe application should be supported and that the petitioner’s lawyersshould have notice thereof. After hearing Counsel I intimated that I wasnot disposed to grant the application but that if a considered order weredesired I would like to hear the Attorney-General as my order may effectother elections as well. As the result of a considered order being desired,the learned-Solicitor-General appeared to assist the Court and I am muchindebted to him.
When the original motion was filed it was unsupported by any affidavit.Before the first argument, however, an affidavit was filed, paragraphs 3,4 and 5 of which ran as follows : —
“ 3. A considerable volume of evidence has already been led onbehalf of the petitioner to establish that on account of treating, undueinfluence, and general intimidation a very large percentage of votersrefrained or were prevented from recording their votes.
“4. I maintain that these allegations are false and that voters werenot so prevented from recording their votes. The documents of whichI seek inspection contain information which would materially help meto refute these allegations.
“ 5. It has become necessary for the purpose of my case to inspectand, if necessary, to take copies of the said documents ”.
It will be noted that inspection was desired because the documents“ contain information which would materially help (respondent) to refutethe allegations ” made by the petitioner.
The matter is governed by Article 45 (10) of the Order in Councilgoverning elections to the Ceylon State Council. That sub-sectionempowers a Judge of the Supreme Court to make an order for inspectionbut it also expressly states that he “ shall not make such an order unlesshe is satisfied that such inspection, copy, or production is required forthe purpose of instituting or maintaining a prosecution or an electionpetition in connection with the election. Save as aforesaid, no personshall be allowed to inspect any such ballot paper or document after it hasbeen sealed up in pursuance of sub-clause (9) ”. Mr. Jayasundere arguedthat the latter part of the qualifying clause should be read as follows : —(a) for the purpose of instituting or maintaining a prosecution, or (b) forthe purpose of an election petition.
He urged that the provision had been modelled on Rule 40 of the Rulesfor Parliamentary Elections to be found in the English Ballot Act of 1872(35 & 36 Viet. cap. 33). He also urged that as inspection of the markedregister is allowed in England it should be allowed here. He was keenonly about the marked register.
DE KRETSER J.—Saravanamuttu v. de Silva.
I did not think then nor do I think now that the English rules are asafe guide, except to a limited extent, for the provisions of bur law aredifferent in many respects. Rule 40 of the Ballot Act applied only toinspection of rejected ballot papers. Rule 41 applied to the counterfoilsand the counted ballot papers. Rule 42 allowed public inspection of alldocuments forwarded by a returning officer other than ballot papers andcounterfoils. The marked register was, therefore, by virtue of Rule 42,open to public inspection.
Article 45 (10) puts all public documents relating to an election on thesame footing as a ballot paper. In my opinion what follows is, not that aballot paper should be as lightly considered as a marked register but thata marked register is raised to the level of a ballot paper. The Articledoes not justify different considerations being applied to the differentdocuments.
The learned Solicitor-General was inclined to think that the Englishpractice should be followed as the inspection of the marked register wouldnot violate the secrecy of the ballot and could do no harm. Article 83 (4)allows the procedure or practice followed in England on an electionpetition to be invoked only so far as they are not inconsistent with theexpress provisions already made by the Order in Council and the rulesannexed thereto. Article 83 (4) relates to any matter of procedure orpractice arising on an election petition, whereas Article 45 (10) appliesto a stage even prior to the filing of a petition. I think the learnedSolicitor-General was right when he said that it seemed to be intendedmainly for proceedings prior to an election petition being presented.Express provision having been made, this Court must construe suchprovision and can only take the English law as a guide on such points ashave not been covered by legislation.
The Solicitor-General also raised the question whether I could deal withthis application, seeing that I was sitting as an “ Election Judge ” ; and onmy inquiring whether I had therefore temporarily ceased to be a Judgeof the Supreme Court he was rather inclined to think I had ! He pointedto the fact that under the Parliamentary Elections Act of 1868 the Courtis expressly given the powers, jurisdiction and authority at the trial as aJudge of one of the superior Courts and as a Judge of Assize and NisiPrius,—in Scotland the powers of a Judge of the Court of session for thetrial of a civil cause without a Jury,—whereas in Ceylon no such provisionhad been made, and Article 75 (3) had conferred on an election Judgethe powers, jurisdiction and authority of a District Court, for the purposeof summoning or compelling the attendance of witnesses. If thisobjection were sound all I need do is dismiss the application and leaveit to the applicant to move elsewhere. But I think the argument isunsound on two grounds, namely, that I still remain a Judge of theSupreme Court and can exercise jurisdiction as such, and the mereaccident of this matter being dealt with by me in the Court in which theelection petition is being tried does not deprive me of jurisdiction; andsecondly, that Article 75(1) expressly states that an election petition
shall be tried by the Chief Justice or by a Judge of the Supreme Court, andit is only with regard to the summoning of witnesses that the powers ofan election Judge are in any way defined by Article 75 (3). Article 75 (3)
80DE KRETSER J.—Sara.vanam.uttu v. de Silva.
is modelled probably on sections 31 and 32 of the Parliamentary ElectionsAct of 1868. The procedure provided by the Criminal Procedure Codewould ble inappropriate and there are no rules regarding the right ofparties to call evidence before the Supreme Court in its appellate juris-diction. Article 75 (3) was therefore a necessary provision.
It must be remembered that Article 45 (10) embraces a case where thereis no election petition and consequently no election Judge. It must alsobe borne in mind that it may apply to a time prior to the presentation ofan election petition. Once an election petition is presented the rules inSchedule VI. would apply to the extent therein indicated. For thepurpose of those rules, unless the context otherwise requires, the word“ judge ” means the election Judge and “ registrar ” means the Registrarof the Supreme Court. There is no provision in the Order in Council forthe appointment of a registrar for the election court such as there is -inEngland. Article 75 (5) enacts that all interlocutory matters in connec-tion with an election petition may be dealt with and decided by any Judgeof the Supreme Court unless the Chief Justice orders otherwise. Anyinterlocutory matter would be most conveniently dealt with by theelection Judge and there is no provision which justifies an interpretationwhich excludes the election Judge in his capacity of a Judge of theSupreme Court.
Article 75 applies to the trial of an election petition and the ChiefJustice is not required to nominate a Judge as soon as an election petitionis received by the Registrar. The rules in Schedule VI. are brought intoeffect by Article 83 (1) and regulate the procedure and practice on electionpetitions.
“ The Judge ” is first mentioned in Rule 5 which deals with an appli-cation by the respondent for particulars. This is to be dealt with by theelection Judge, who in the absence of nomination, would be the ChiefJustice. Rules 7 and 8 apply to the Judge at the trial or inquiry. Rule12 again brings in “ the Judge ”,—so do Rules 20 and 21, all relating tothe furnishing of security. Rule 22, however, refers to “ a Judge ”.Taken strictly the position is this : if no security is furnished “the Judge ”may dismiss the petition ; “ the Judge ” considers the sufficiency of thesecurity tendered and may order additional security, and if the additionalsecurity is not given “ a Judge ” may order dismissal of the petition.It is difficult to reconcile Article 75 (3) with some of the rules. Thesystem is different in England where the election Judges are drawn froma rota and so are in existence immediately. Article 75 (5) finds itscounterpart in rule 44 of the English rules, which do not refer to “ theJudge ” at any time but to “ a Judge ” and sometimes to “ the Court ”,the Court there now consisting of two Judges. The difficulty reallyarises from our rules defining the term “ Judge ” to mean the electionJudge, apparently in forgetfulness of the provisions of Article 75 (3).Had there been no such definition the expression “ the Judge ” mightmean the Judge to whom a matter was submitted for order and “ a Judge ”in Rule 22 would only mean the same thing. As regards the trial theexpression would mean the election Judge.
It seems to me that Article 83 (2) may be usefully applied to clarify thispoint and that meanwhile the matters mentioned in the rules must be
DE KRETSER J.—Saravanamuttu v. de Silva.
dealt with by the Chief Justice unless and until he nominates an electionJudge, and that other matters may be dealt with by any Judge of theSupreme Court including the Chief Justice, who is the election Judgeuntil some other Judge is nominated. If then the Chief Justice, who isin the first instance the election Judge, may deal with an applicationunder Article 45 (10), there is no reason why any other Judge should bedisqualified from doing so merely because he is nominated to try theelection petition.
I have indicated sufficiently that there are differences between theEnglish law and the law obtaining here. It must be borne in mind thatin England the House of Commons claimed the right to decide on thevalidity of all elections and exercised its power through the medium ofSelect Committees. It was only in 1868 that this right was transferredto a Judge. Rule 40 provided for an order for inspection of rejectedballot papers being made not only by one of Her Majesty’s SuperiorCourts but also by order of the House of Commons. Rule 41 providesfor an order by the House of Commons or by any tribunal having cogni-sance of petitions complaining of undue returns or undue elections.Rule 42 contemplates the making of regulations by the Speaker togovern the Clerk of the Crown in Chancery. It will be seen that theprocedure in Ceylon has been much simplified.
Turning now to the motion, the position is that English law with regardto the marked register cannot be applied in Ceylon. It is probably true—in fact there is every reason to believe it to be true—that the draftsmanof the Order in Council had before him the English enactments. He hasdeparted from them and one must assume that he has done so for goodreason. The Legislature having enacted Article 45 (10) I must give effectto it to the best of my ability. It is not as if it has been shown that therecould have been no possible reason for not following the English rules.One would have thought that if that were so the simplest and easiestcourse would have been to copy the English rules. Before the BallotAct voting was open, and when that Act was introduced particular carewas taken to secure the secrecy of the ballot papers ; but experience mayhave shown that it was desirable to secure the secrecy of other documentsas well, and it may have been realized that conditions in Ceylon requiredrather different provisions. It is idle to speculate.
The next matter that arises is with regard to the latter part of Article45 (10). Rule 40 required that the Court should not order inspectionunless it was satisfied by evidence on oath. Article 45 (10) requires itto be “ satisfied ”. It can only be satisfied by evidence.
In Javies v. Henderson1, leave to inspect the marked register wasallowed on the ground that it was by Rule 42 open to the public inspection.It is therefore of no assistance. In Stowe v. Joliffes, Grove J. said(page 457) : —,r Is this Court, in every case, to grant inspection as a matterof course upon the mere production of an affidavit of the agent that inhis judgment and belief such inspection is necessary .to enable him toprepare the petitioner’s case ? If that had been the intention of theLegislature it might have been expressed in a few lines : I do not thinkthese long provisions would have been necessary …. So to hold1 (1874), vol. 43, L. J. Common Law.2 L. R. 9, C. P. 446.
DE KRETSER J.—Saravanamuttv. – v. de Silva.
would be to say that every petitioner is to have access to everything on ascrutiny, upon a mere suggestion that it would afford him useful infor-mation. Such would be the effect of granting what is here asked. …
I do not say that the Court has not power under any circumstances toallow inspection of the rejected ballot papers and the counterfoils ofballot papers ; but I think, before such inspection is allowed, • a verystrong prima facie case should be made out ”.
The Court must be satisfied, and I think the standard set it) Englandwith regard to inspection of ballot papers must be the standard which thisCourt will follow in dealing with applications under Article 45 (10).There can be no such thing as being more easily satisfied with regard tosome applications and less easily satisfied with regard to others.
Next, the Court has to be satisfied on certain points : one is that suchinspection is required for the purpose of instituting or maintaining aprosecution. The learned Solicitor-General drew attention to the factthat an accused person would not have the right of inspection, and hesuggested that that was because he could rely on the prosecution failingto prove its case, the prosecution in order to prove its case having toproduce the necessary documents. In my opinion there is no reason todifferentiate between an accused person and a respondent to an electionpetition. In an election petition too the petitioner would have tosubstantiate his charges.
The "second purpose is the one that has given some difficulty.Mr. Jayasundere suggested that the sentence should not be read in itsnatural and grammatical sence but that it should read “ for the purposeof an election petition ”. The learned Solicitor-General was inclined tosupport this view, though freely admitting that a natural and grammatical -construction would be – against it. The argument is that the word“ instituting ” is inappropriate when applied to an election petition andno reason can be seen why the wording of rule 40 of the English rulesshould not be adopted and the draftsman considered to have compressedhis sentence. It may be true that the Order in Council and the rulesspeak of “ presenting ” a petition but I can see no objection to the use ofthe word “ instituting ”. To institute is to set in operation, to begin.Both the Solicitor-General and Mr. jayasundere referred to an electionpetition as if it were the same as an election action and an action is“ instituted ”—vide Chapter III. of the Civil Procedure Code, “ action ”itself being defined as “ a proceeding for the prevention or redress of awrong ”, and in that sense an election petition is an action. Besides, it isquite common to find in English composition a verb or an adjectiveattracted to the nearest substantive without the meaning of the sentencebeing affected. Both “ prosecution ” and “ election petition ” arequalified by the words “ in connection with the election ". These wordsare scarcely necessary with regard to the petition, for it must be in connec-tion with an election, and they apply chiefly to the word “ prosecution ”.With reference to the English rules, a departure therefrom has been madeas the alternative in Rule 40 read “ or for the purposes of a petitionquestioning an election or return ”. Even the English rule mightpossibly be construed as allowing inspection only for the purpose of thepetition and not for all purposes connected with the trial thereof. It is
Hethuhamy v. Boteju.
for this reason that I asked whether there was a single case in which anapplication had been made by a respondent and was informed that nosuch case could be found.
In the case of Darwen (1886, 80 L. T. J. 153) referred to at page 110 ofVolume H. of Rogers on Elections (20th ed.), an application under rule 40was refused where no petition was filed and it was doubted whether therewas power to make an order in the absence of a petition. The report ofthe case; unfortunately, is not available locally. That decision wouldindicate that it was doubted whether the alternative clause applied tdUthe instituting or presenting of an election petition. It may have beento remove this doubt that Article 45 (10) put an election petition on thefooting of a prosecution and so indicated that the application might bemade even prior to the presenting of a petition.
In my opinion the application may be made only for the purpose ofinstituting or maintaining an election petition. I note that in Dias v.Amarasuriya Drieberg J. assumed that the word “ maintaining ” inArticle 45 (10) applied to the election petition.
I refuse the application both on the construction of Article 45 (10)which I have just mentioned and also on the merits. I do not think aninspection should be allowed merely to fish for evidence. In Stowe v.Jolifie * Cockbum and Grove JJ. refused the first applicationpartly at least on the ground that the nature of the information desiredwas not precisely stated. Mr. Jayasundere sought to amplify theaffidavit by stating that it was desired to ascertain whether certainpersons had voted or not and, where possible, to refute the allegation thatcertain specified persons had not voted. This would at once have led toan inquiry into various charges of personation and have unduly prolongedan inquiry which is not concerned with charges of personation. *
Application refused.