056-NLR-NLR-V-72-A.-W.-A.-K.-PEIRIS-AND-another-Appellants-and-K.-D.-DAVID-PERERA-Respondent.pdf
232
. Pc iris v. David Per era
,1969 Present: H. N. G. Fernando, C.J., Sirimane, J., andWeeramantry, J.A. W. A. K. PEIRIS and another, Appellants, and-.K. D. DAVID PERERA, RespondentElection Petition Appeal No. 2 of JOGS—Bandarayama(Electoral District No. 27)
Parliamentary election—Disqualificationof one of the candidates—Fact, of
disqualification well known to the entire electorate—Dispute or uncertaintyin the minds of the voters as to the disqualifying legal effect of the fact groundingthe disqualification—Volc3 given to the disqualified candidate—Whether theycan be regarded as cast away—Applicability of English law on the subject—Claim of scat for the candidate who was placal second at the poll—Whether all. the other candidates should be made respondents to the election petition—Whetherthere should be a scrutiny of votes—Purpose of scrutiny of votes—Eight ofunseated candidate to file recriminatory objections against the candidate forwhom thcscal is claimed—Abandonment or waiver thereof—Ceylon (ParliamentaryElections) Order in Council (Cap. 3S1), ss. 4S, 5S (1) (d), SO, SI, S2C (2) (b).S2D (2) (a), S2D (2) (b) (ii), SS, SO (2)—Election Petition Rules 7, S, 10, 15.
Tho respondent had contested a seat in a Parliamentary election earlierand, in consequenco of n report sent by tho Supreme Court to tho Governor-General under section S2 C (2) (6) of the Parliamentary Elections Order inCouncil, he became disqualified for a period of seven years for being elected aMember of Parliament. Nevertheless he contested the some seat again at thobye-election held on 23rd September 19&7.
At tho bye-election, the decision of the Supreme Court- resulting in thodisqualification of the respondent was made known to the whole electorateand was a matter of public notoriety in the constituency, but it was claimedon the respondent’s behalf before the electorate that tho decision wasconstitutionally invalid in law in view of n previous seemingly conflictingdecision of the Supremo Court in a different election petition appeal, vi/..Thambiayah v. Kulasinghatn (50 N. I*. R. 25).
Thero were, apart from the respondent, two other candidates at tho byo-election. The respondent secured tho largest number of votes and was declaredduly elected. In an election petition filed against him, his election was declaredvoid. The appeal filed by him against the decision of tho Election Judge wnsdismissed—vide page 217 ct scq. (supra). ' In the election petition tho petitionershad also asked for a determination that the candidate who secured the secondhighest number of votes was duly elected and ought to bo returned. Whentheir claim was dismissed by the Election Judge, they lodged tho presentappeal.
Held, by H. N. G. Eeh.vaxdo, C.J. and Weeramaxtbv, J. ( Shumane. J.dissenting), that, in a Parliamentary election, a voto cost by a voter withknowledge of the facts constituting a candidate’s disqualification for electionis a voto thrown away and should be treated as not cast. Therefore, inasmurhas tho disqualification of the respondent was definite and certain and wasknown to tho whole electorate prior to tho date of the election, oil tho voteswhich were cast in favour of the respondent were wasted votes and tho seatmust bo awarded, ns claimed, to the candidate who was placed second at thopoll. In such a case ignorance of the law does not excuse, and tho existence
Pciris r. Darid Pcrera
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of ony uncertainty in the minds of voters in regard to the disqualifying legaleffect- of the known facts grounding the disqualification is not a ground for notawarding the seat to tho candidate next at tlic poll. The English law on thissubject is opplicablo in Cc3‘lon by virtue of section SG (2), read with sectionsSO, SI and S5 (1)(/), of the Parliamentary Elections Order in Council.
Held further, (i) by H. N. G. Fi:rn'ani»o, C.J., and Weeramasthv, J., thattho power of an Election Judge to determine that a candidate, oilier than theMember returned, was duly elected, may be exercised without resort to ascrutiny of votes in a case where there was either public notico to all tho electorsof tho disqualification of the Member returned or where the disqualificationor tho facts causing it were notorious to alt the electors. Accordingly, in thepresent case, where the fact of tho disqualification of the Member who wasreturned was known not to some only of tho voters but to all tho voters, it wasnot necessary that the scrutiny of votes contemplated in sections SO (d) a mlSo (1) (/) of tho Parliamentary Elections Order in Council should be actuallyheld and that tho invalid ballot papers should be physically rejected beforetho seat is awarded to the second candidate.
Peiris v. Samaraweera (71 X. L. R. 250) overruled in so far us it conflictswith the judgment in the present case.
(ii) by tho whole Court, that it was not necessary that the third candidateshould have been named as a respondent to the present election petition.Our law docs not require that an election petition which claims a seat forsome candidate who was not declared to be returned at the election mustname as a respondent not only tho Member whose return is challenged butalso every other candidate who unsuccessfully contested the election.
(iiil by the whole Court-, that, in view of tho timo limit of six days prescribedin Election Petition Rule S, the respondent- could not be given an opportunityto file belated recriminatory objections against- the candidate for whom theseat was claimed.
Appeal front a judgment of an Election Judge reported in(196S) 71 N. L. R. 481. The facts are set out in the judgment ofWee ra man try, J.
II. W .Jayeicardene, Q.C., with A. C. Gooneralne, Q.C., Izadeen Mohamed,11. D. Tambiah, Mark Fernando and R. C. Gooneralne, for tlie petitioners-appellants.
Colvin R. De Silva, with Hanan Ismail, Mrs. Man our i MuUetuwcgatna,P. D. IF. de Silva and Shibli/ Aziz, for the respondent-respondent.
H. L. de Silva, Crown Counsel, with N. Sinnelatnby, Crown Counsel,for the Attorney-General.
Cur. adv. vull.
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H. N. G. FERNANDO, C.J.—Pciria v. David Perera
February 22, 1969. H. N. G. Fernando, C.J.—
The judgment prepared by my brother Weeraniantry in this appealcontains a full and (if I may so say with respect) admirable discussionof the principal question which arose for our decision. I can add nothingto the reasons which he has stated for the conclusion that the law inEngland, as decided in the cases of Drinkicater, Lady Sandhurst, andSlansgate, is that a vote east by a voter with knowledge of the factsconstituting a candidate’s disqualification for election is a vote thrownaway. If then the law in Ceylon is the same, all the votes which werecast in favour of the respondent were wasted votes, and the seat must beawarded, as claimed, to the candidate who was jdaced second at thepoll. I need only to state some grounds for my agreement with mybrother that our law on this subject is the same as that which accordingto his conclusions is the English law as stated in certain texts andjudgments to which he refers.
Section SO of the Parliamentaiy Elections Order entitles a petitioner toclaim in an election petition “ a declaration that any candidate wasduly elected and ought to have been returned This is the particidarrelief claimed by the petitioners in the present case. Section 81 providesthat the Election Judge '* shall determine whether the Member whosereturn or election is complained of, or any other or what person, teas dulyreturned or elected ”. The words which have just been italicized confer thejurisdiction on the Judge to grant the relief of a declaration that acandidate, other than the Member returned at the poll, was duly elected.The use of the word “ shall ” in s. So requires the Judge to grant suchdeclaration, but in of course a proper case. The Elections Order howevercontains no provision as to tlie circumstances in which tIre jurisdictionmay or should be exercised. In the absence of express provision forthis matter, I am in full agreement with my brother’s opinion that s. S6 (2)coiupds resort to the English Law.
That consideration apart, I find much evidence in s. 85 of our ElectionsOrder of an intention to adopt for Co3'lon the principle (hat wherethere has been notoriety of positive and definite facts establishing ndisqualification, a fair inference will arise of the wilful perversity of allthose who voted for the disqualified candidate. I
I refer in this connection to the statement in Parker (Gth Editionp. 156) that the former Election Committees had held two opposingopinions : the one, that the existence of any dispute or uncertainty asto the question whether a disqualification arises in law upon knownfacts will be a ground for not awarding a scat to an unsuccessful candidate ;the other, that despite any such dispute or uncertainty, voters who votefor a candidate with knowledge of the facts causing his disqualificationwill be presumed to have known the law and thus to have thrownaway ” their votes. I will for convenience refer to the former as “ theTcwkesbmy opinion ” and to the latter as “ the opinion ofBrett L.J.
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.My brother Wee ram tan try’s citations show quite elear]j>- that the textof Parker and of the third edition■ oj Hahbury state the law in terms ofthe Tewkesbury opinion, while Rogers. Frazer, Schojield and the 1stand 2nd editions of Ualsbury state the law to be as expressed in the opinionof Brett L. J. It thus suffices for me to consider only the statement inFrazer (2nd Edition p. 22G), that a vote will be considered as lost orthrown away when it is given for a disqualified candidate —
after sufficient notice of a disqualification ;
knowing that the candidate is disqualified ;
knowing the facts by reason of which he is disqualified ; or
when the fact of the disqualification or the facts by which it iscaused arc notorious.
A comparison of Frazer’s text with s. S2 (/) of the Ceylon (State Counci)Elections Order of 1931 shows that the Ceylon section was in termsidentical with Frazer’s text, with alterations only in the'order in whichthe 4 different grounds for striking off votes were arranged. Paragraph(/) of s. So of our present Parliamentary Elections Order is a straight cop3'of the former s. S2 (/). In these circumstances, it is reasonable to assumethat, when it became necessary to enact in statutory form for Ceylon thelaw on this subject, resort was had to the text in Frazer, the intentionbeing to adopt for Ceylon the law as stated in that text. Such resort wasjustified by the fact that the law had been similarly stated in Rogers,Schojield and the edition of Halsbury extant in 1931. In a parallelsituation, it has long been accepted that the Indian Evidence Act, as alsoour own, was in many respects an enactment of the English Law as setout in the text of Stephen’s Digest of the Law of Evidence. It thusappears that so far as we are concerned it does not matter that theopinion of Brett L.J. may even be wrong. That opinion, or ratherFrazer's precise statement of it, whether right or wrong, was adoptedin our Statute Law in 1931 and again in s. S5 of the present ElectionsOrder.
I will now set out paragraph (/) of s. So :—
“ Votes given for a disqualified candidate by a voter knowing thatthe candidate was disqualified or the facts causing the disqualification,or after sufficient public notice of the disqualification, or when thedisqualification or the facts causing it were notorious.”
The first ground here mentioned for striking off the vote of a voter ishis knotting that the candidate was disqualified. Here proof is required oftwo matters, for a voter cannot know that a candidate is disqualified,unless he knows (a) some fact concerning the candidate and (6) that thelaw renders that fact a cause of disqualification. But the second groundis his “ knowing the facts causing the disqualification ” ; in this case, proofis necessary of knowledge only of some fact concerning the candidate,but not of knowledge of any relevant law. In any other view, the
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H. N. G. FERNANDO, C.J.—Petris v. David Percra
statement in the section of the second ground is not merely tautologous,but is incorrect and positively misleading in that it wrongly omitsmention of the need for proof of the voter’s knowledge of the law.
The same distinction is drawn in the statement in the two last lines ofparagraph (/). A vote for a disqualified candidate will be struck off ichenthe disqualification was notorious OR when the facts causing thedisqualification were notorious. In the second case here contemplated,notoriety of the facts causing disqualification is by itself a ground forstriking off votes, without the need for notoriet}- as to the law imposingthe disqualification. Notoriety of the law would be required only if apetitioner relies on the first of the grounds for striking off which arcstated in the last two lines of paragraph (/).
It thus becomes clear that our law relating to the striking off of votesat a scrutiny leaves no room for reliance on the Tewkesbury opinion thatthe maxim ignorantia juris neminem excusal has no application in electioncases.
I shall be deciding later in this judgment that s. So does not directlyapply in the present case, because a scrutiny is not here required. Butthe point of importance is that when a scrutiny is held, paragraph (/) ofs. 85 requires that a vote given for a disqualified candidate shall be struckojf iC there is established any one of the grounds upon which, according toFrazer's text, the vote must be regarded as having been “ thrown away ”.Since there has been in s. So a clear adoption of the opinion of Brett L.J.for a case where a scrutiny is actually necessary, it is unreasonable toimply any intention in our Elections Order to exclude the application ofthat opinion in a case where (as I shall show later) invalid votes can beidentified and rejected without resort to a scrutiny.
Once it is established that votes have been cast for a disqualifiedcandidate with knowledge of the facts causing the disqualification, thequestion whether the- votes are to be regarded as thrown away arisesimmediately for decision by the Election Judge; and it would be illogicalthat the proper decision should depend on whether the further step of ascrutiny is or is not necessary to make a decision effective. Thus theexpress provision in s. 85 (/) carries the necessary implication.that thequestion whether votes east for a disqualified candidate were thrownaway must in all cases be answered in accordance with the opinion ofBrett L.J. The admissions in the respondent’s affidavit establishbeyond doubt the notoriety of the facts which caused his disqualification,and upon those facts I must hold in accordance with that opinion thattlie claim of the seat for the second candidate has been established.
Learned Counsel for the respondent has argued that the electionpetition filed in this case is defective in respect of the claim for adeclaration that the candidate, who received the second largest numberof votes, was duly elected ; the defect alleged is that the third candidatewas not named as a respondent to the petition. Counsel referred in this
H. N. G- FERNANDO, C.J.—Peiris v. David Pertra
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connection to Rule S of the Election Petition Rules which are set out-in the Third Schedule to the Elections Order in Council (L. E. 1956,vol. xi, p. 822), which runs as follows :
** The respondent in a petition complaining of an undue return andclaiming the scat for some person may lead evidence to prove that theelection of such person was undue, and in such case such respondentshall, six days before the day appointed for trial, deliver to theRegistrar, and also at the address, if any, given by the petitioner, alist of the objections to the election upon which he intends to rcty, andthe Registrar shall allow inspection of office copies of such lists to allparties concerned ; and no evidence shall be given by a respondent ofany objection to the election not specified in the list, except-by leaveof the Judge, upon such terms as to amendment of the list,postponement of the inquiry, and payment of costs, as may beordered.”
This Rule clearly contemplates that, in a case like the present one, therespondent to a petition has an opportunity of showing that, even if hisown election is void on some ground, the Judge must not declare to beduly elected some other person for whom the seat is claimed in thepetition, because the election of that person is (in the words of Rule S)” undue ”.
Despite an argument of long duration, Counsel for the respondent didnot (nor did we on the Bench) consider what is meant by the expression“ election was undue ” which occurs in Rule 8 and in s. SO of the Orderin Council. But I can assume for present purposes that Rule 8 permitsthe respondent in a case like the present one to prove that the person forwhom the seat is claimed was himself disqualified for election toParliament, or that ho himself or an agent of his had been guilty of acorrupt or illegal practice at the election, or to prove against such aperson any other matter which can render an election void. And I agreethat if any such matter is proved by the respondent, the election Judgewill not declare such person to be elected. Counsel’s point is that,where there have been three or more candidates at an election, all thecandidates should have tho opportunity to prove any such matter asagainst a person for whom the seat is claimed in an election petition,and that this opportunity has in law to be afforded by the joinder ofall such candidates as respondents to the petition.
Counsel urged some relevant considerations in support of this argument.Where there have been three or more candidates at an election, each ofthe unsuccessful candidates may be interested to oppose the claim of theseat for a candidate other than the one who received a majority of votesat the poll, and may bo able t-o establish valid grounds of objection to theclaim being allowed. But such objections can be made under Rule 8only by “ the respondent Therefore, it was argued, Rule 8 must beconstrued to mean that, in tho case of a petition to which the Ruleappliesr every candidate must be joined as a respondent.
1 SOBS (11/69)
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H. N. G. FERNANDO, C.J.—Petris v. David Perera
While conceding that provision in the Elections Order or the RulesTorsuch joinder would have been perfectly reasonable and appropriate, I;arnconstrained to the conclusion that the law as it stands does not requiresuch joinder. Neither the Elections Order nor the Rules contain expressprovision as to the persons who should or may be made respondents tq.anelection petition. But examination of those Rules which refer to “-therespondent ” throws some light on the matter of joinder.>■
Rule 10 provides that any -person relumed as a Member may, after .he.isreturned, leave at the office of the Registrar a writing, appointing aProctor to act as his agent in case a petition is filed against him, or statinghis intention to act for himself in such a petition, and giving the addipss(of the agent or of himself) at which notices relating to such a petitionmay be left. The Rule continues to provide that if no such writing2.beleft or address given, all notices and proceedings may bo givcniorserved by leaving the same at the Registrar’s office.'.
Rule 15 provides for the service of an election petition by the petitioner
on the respondent, the manner of service being— ''T i
■ *
*ft'"
by delivery of the notice to the agent appointed under Rule 10 for
% A;
by posting the notice in a registered letter to the address given under
Rule 10 ; orf>—
a.
if no agent has been appointed nor address given under Rule 10, bypublication in the Gazette of a notice stating that the petitionhas been presented and that a copy of it is available at the office ofthe Registrar.
It will be seen, when these two Rules are read together, that-they requirenotice to be given only to the Member against whom a petition is filed.The object of Rule 10 is to enable a petitioner to ascertain the person towhom (i.c., the'agent-1 and the address at which notice of his petition
(and subsequent notices) mayidentity of the agent of theof such agent, that is thusand address arc left at theof leaving the notice at the
be served. But it is. only vfehcMember returned, and the addressascertainable ; and if no writingRegistrar’s office, the alternative_Registrar’s office will opcrate'l-as
service on the Member. The dear implication is that “the respondet|b ”referred to i:i Rule 15 is the Member against whom a petition is filed.Ordinarily therefore, there would only be that one Member as respondentto a petition, although there may be an exceptional case in relation to anelection for a multiple-member constituency. In that case each personwho is returned as a member may flic the writing under Rule 10, andif a petition challenges the election of two or three such Members, thentlio rule of construction that the singular includes the plural will requirethat notice must be served on both or all such Members, as respondents.But even in such a case, the writing left- by a Member is intended to beoperative in relation to a petition againsi him ; ho need not be a respondentton petition which only challenges the return of some other person who was
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returned at the same election. Indeed the researches of the respondent’sCounsel in the present case have brought support for my statement inthe preceding sentence. In the case of Line v. Warren1 it was held thatin a petition challenging the election of 3 Members, where 4 had beenreturned, it was not necessary to join the Member whose election was notbeing challenged.
Rules 10 and 15 deal with a matter of vital importance, equivalent tothe matter of the service of summons on the defendant in a civil action,and default of due service of notice of a petition will result in dismissal ofthe petition. The Rules themselves strongty evidence the intention thatit is the Member whose return is challenged, and no other person, whomust necessarily be the respondent named in an election petition. That-being so, the decision of a Court, requiring that the third candidate shouldhave been made a respondentto the present petition, would amount not-to the application or construction of the law, but to the making of law.Since neither the Order in Council nor the Rules, as actually enacted,impose such a requirement either expressly or by implication, it would beunjust for this Court to reject tho present petitioner’s claim for tlio seaton the ground that such a requirement, however reasonable,, must beread into the law.
The relevant Rules in India expressly provided at one time that allpersons who had been candidates must be joined as respondents to anelection petition, and the Rules were later amended to require that suchcandidates must bo so joined only in a petition which claims the seat-.The existence in India of express statutory provision imposing such arequirement confirms ray opinion that it is for the Legislature, and notfor the Courts, to determine whether or not all unsuccessful candidatesmust be named respondents in such a petition.
Counsel for the respondent in this case was unable to cite any decisionof an English Court in support of his objection on this ground of non-joinder. Tho English Petition Rules are substantially the sarno as theRules applicable in. Ceylon. That being so, resort to s. 86 (2) of ourElections Order is of no avail to the respondent in connection with theargument now under consideration.
I hold for these reasons that our law does not require that an electionpetition, which claims a seat for some candidate who was not declaredto be returned at the election, must name as respondent every othercandidate who unsuccessfully contested the election. *
* 14 Q. B. D. 73.
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H. N. G. FERNANDO, C.J.—Peiria v. David Pcrera
The arguments presented in this case have shown the need for Parlia-ment to consider whether or not it is expedient to amend the existing lawas construed in this judgment. Upon such consideration Parliamentmay decide—
that the law as now construed needs no amendment; or
that every election petition which claims a scat for one unsuccessfulcandidate must name as respondent every other unsuccessfulcandidate; or
that in the ease of any such petition any unsuccessful candidatehas a right to be joined as a respondent if he seeks to intervene.
I express the opinion, for what it may be worth, that the third of thesealternative decisions would be the most satisfactory. I state also theopinion that, despite the absence of express provision in the ElectionOrder, it would he open to an Election Judge to permit the interventionof an unsuccessful candidate in a petition which claims a seat for anotherunsuccessful candidate.
The prayer in the petition filed in this case asked for a determination—
that the petitioners arc entitled to a scrutiny in order to strike offall votes in favour of the respondent; and
(el) that the said Mr. George Kotalawala (i.c. the candidate whosecured ihe second highest number of votes) was duly elected andought to he returned.
It was argued on behalf of the respondent that a scrutiny is a conditionprecedent to a declaration by an Election Judge that any person, otherthan the Member actually returned at the poll, was duly elected. Theargument is based on a construction of s. SO of the Elections Order whichdeclares (inter alia) tiiat the following reliefs may be claimed in anelection petition :—
:t (c) a declaration that any candidate was duly elected and ought tohave been returned ;
(</) where the seat is claimed for an unsuccessful candidate on theground that he had a. majority of lawful votes, a scrutiny ”
Paragraph (tf), it was argued, applies in every case where a seat isclaimed for an unsuccessful candidate on the ground that he had amajority of lawful votes, and peremptorily requires that- a scrutiny mustbe held before a scat can be awarded on this ground. Counsel in thisconnection relied also on Rule 7 of the Election Petition Rules :
“ When a petitioner claims the scat for an unsuccessful candidate,alleging that he had a majority of lawful votes, the party complainingof or defending the election or return shall, six days before the dayappointed for trial, deliver to the Registrar, and also at the address, ifany, given by the petitioners and respondent, as the case may be, a
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list of the votes intended to be objected to, and of the heads ofobjection to each such vote, and the Registrar shall allow inspectionand office copies of such lists to all parties concerned ; and no evidenceshall be given against the validity of any vote, nor upon any head ofobjection not specified in the list, except by leave of the Judge, uponsuch terms as to amendment of the list, postponement of the inquiry,and payment of costs, as may be ordered.”
It was urged that this Rule applies in every case where a seat isclaimed on the ground under consideration ; that therefore the petitionersin the present case should have furnished a list of the votes to which thoyintended to object ; that such objections could only be determined anddisposed of at a scrutiny ; and that since the petitioners failed to furnishthe list of objections required by this Rule the seat cannot be awarded tothe candidate for whom they claimed it.
I note firstly that although p_aragraph (d) of s. SO^refers to a scrutinyas a relief which may be claimed in a petition, the substantial reliefwhich can be awarded, even after a scrutiny, is specified in paragraph (c),namely “ a declaration that any person wras duly elected and ought tohave been returned ”. Similarly the reliefs which may be ultimatelygranted by the determination of the Election Judge under s. 81 are thosespecified in paragraphs (a), (6) and (c) of s. SO, and the ultimatedetermination will say nothing about a scrutiny. Section 85 containsa list specifying which votes shall be struck off at a scrutiny. Let mefirst set out paragraphs (a) to (e) of s. 85 :—
the vote of any person whose name was not on the register ofelectors assigned to the ix>lling station at which the vote wasrecorded or who has not been authorized to vote at such stationunder Section 39 ;
the vote of any person whose vote was procured by bribery,treating, or undue influence ;
tho vote of any person who committed or procured the commissionof personation at tho election ;
(cl) where the election was a general election, the vote of any personproved to have voted at such general election in more than oneelectoral district;
(e) the vote of any person, who, by reason of a conviction of a corruptor illegal practice or by reason of the report of an Election Judge,or by reason of his conviction of an ofTcneo under section 52 orsection 53 of this Order, or by reason of the operation of section 4A(or section 5 B) of this Order, was incapable of voting at theelection.
In each of these cases, a party has first to prove that a particularperson voted at the election, and secondly to prove some ground affectingthat person which renders his vote invalid, i.e., that his name was not on
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H. N. G. FERNANDO, C.J.—Petris v. David Per era
the register, that his vote was procured by bribery, that he committedpersonation at the election, that he was disqualified to vote, that hevoted twice at the same General Election. What has to be emphasisedin the present context is that the invalidity of the vote of a particularvoter must be established bejore an Election Judge orders a scrutiny.Thereafter, the scrutiny is held only in order to trace the ballot paper,and then to strike ofF that paper. At this stage those present at theconduct of the scrutin)' can become aware of how the particular voterhad voted. But this breach of the secrecy of the ballot is allowed, as Ihave just stated,. only because the invalidity of the vote has beenantecedently established.
I pass now to paragraph (/) of s. So which provides for the striking off'at a scrutiny of votes given for a disqualified candidate by a voter—
knowing that the candidate was disqualified ; or
knowing the facts causing the disqualification ; or
after sufficient public notice of the disqualification ; or
when the disqualification or the facts causing it wero notorious.
In cases (i) and (ii), it is quite clear that there has first to be proof,of aparticular voter's knowledge, followed by a decision by the ElectionJudge that his vote was invalid. A scrutiny must thereafter be held inorder to trace his ballot paper and then to strike it off.
An examination of paragraphs (a) to (e) of s. So, and of the first part ofparagraph (/), thus reveals the preciso purpose of holding a scrutinywhich is simply to trace and strike off the votes cast by persons whosevotes have previously been held to bo invalid. It is reasonable to thinktherefore that in a case falling within the second part of paragraph (/) aswell, a scrutiny will be ordered only if it has been antecedently establishedthat the votes cast, by some voters in favour of a disqualified candidatewere invalid on one of the grounds which I have set out at (iii) and (iv)above, and that the object of the scrutiny is to trace the ballot papersof those voters in order to strike off their votes.
Tho argument now under consideration is that, oven in a case whereall the voles cast in favour of a disqualified candidate are held invalidbecause of the notoriety to all the electors of the fact of disqualification,the seat cannot be awarded to the. second candidate unless a scrutinyis actually held and unless the invalid ballot papers arc physicallyrejected.
Let me for the moment assume that a scrut'ny had been hold in thepresent case, and let me consider what would have been dono at thescrutiny. As already pointed out, the order for a scrutiny, would bepreceded by a decision that certain votes were invalid, and the volesaffected would bo all the votes cast in favour of the disqualified candidate.Henoe the scrutiny would have involved inspection of all the 42,423
H. N. G. FERNANDO, C.J.—Pcirh v. David Perera
243
ballot papers which are known to have been cast at the election, and theseparation of all those found on such inspection to have been cast in fa vourof the respondent. These separated ballot papers would then have beenstruck off, and a declaration made that the candidate having the majorityof the remaining votes was duly elected. In brief then the scrutinywould have consisted of a count of the total number of votes which werecast in favour of the respondent-, in order to strike all of them off, andthereafter of a count of the number of votes cast in favour of the other twocandidates. But such a count had already been made after the poll asrequired by s. 4S. The scrutiny would therefore have served merely toestablish figures the correctness of which had already been established.I cannot assign to the Legislature an intention to require that so needless aproceeding should have taken place. On the contrary, I much prefer toassign to the Legislature an intention that a scrutiny must if possiblebe avoided, in order that, any risk of a breach of the secrecy of the ballotbe also avoided.
Let me also consider the app]icabilit3' of Rule 7 in the present context.If compliance with that Rule be necessary, the petitioners in :his caseshould have furnished a “ list of the votes intended to be objected to, andof the heads of objection to each such vote ”. No difficulty would havearisen with respect to the “ heads of objection ”, for the ground takenagainst all the challenged votes would be the notoriety of the fact ofdisqualification. But how could the petitioners have drawn up a listof the " votes intended to be objected to ”? Their objection -would be toall the votes cast in favour of the respondent, but they could not have,and indeed should not have, know’edge as to how any voters had in factvoted. Thus they would not be able to furr.i;h a list of vote3 incompliance with Rule 7. The maxim lex non cogit ad impossibiliatherefore sujjports the construction that Rule 7 does not apply in a casewhere the objection is to all the votes ca t in favour of the Memberreturned on the ground that the facts causing his disqualification werenotorious.
I have already stated that an order for a scrutiny Avill only be made ifthe invalidity of some vote or votes is first established. The list whichRule 7 requires is intended to give notice to a respondent of the voteswhich the petitioner intends to challenge as invalid. It will be seentherefore that the Rule always applies in cases in which a petitioner’sultimate purpose is to have votes struck off on a scrutiny. Thus theconstruction I have reached, that Rule 7 does not apply in the presentcontext, shows at least indirectly that no scrutiny is necessary in thiscontext.
I must not be understood to mean that a scrutiny need never bo heldin a case where tho matters stated in paragraphs (iii) or (iv) of myexplanation of s. So (/) are established. My brother Weeramantry refersto the case of Gosling v. Veley 1 where notice of a disqualification was givenonly after some voters had voted. There was also envisaged during the
* 7 Q.B. 406.
244
H. N. G. FERNANDO, C.J.—Peiris v: David Perera '
argument the possibility that notice of a disqualification is given, or adisqualification is notorious, only to voters in some part of an electorate.In such cases, there would be a decision by an Election Judge declaringthat some only, but not all, of the votes cast in favour of a disqualifiedcandidate are invalid, and defining with some measure of precision themeans of ascertaining which particular ballot papers arc to be struck oil'as invalid. In such cases, a scrut iny will be necessary in order to ascertaindefinitely what are the invalid ballot papers, and thereafter to strike.them out and to re-assess the resxilt of the poll. Thus tho construction,that a scrutiny is not necessary in the instant case, does not imply that thoprovisions of paragraph (f) of s. So are partly nugatory.
Counsel’s contention on this matter was quite independent of the fact,that there were three candidates in this case. His contention is that ascrutiny is necessary even when there are only two candidates and therehas been public notice or notoriety of the disqualification of the onewho was returned at the poll. That contention is negatived in the LadySandhurst case1 and the Standgale case2, both of which are sufficientlydiscussed in the judgment of my brother Weeramantry, and in each ofwhich the seat was awarded without a scrutiny to the one and onlyunsuccessful candidate.
I hold for these reasons that the power of an Election Judge todetermine that a candidate, other than the Member returned, was dulyelected, may be exercised without resort to a scrutiny in a case wherethere was cither public notice to all the electors of the disqualification ofthe Member returned or where the disqualification or the facts causing it.were notorious to all the electors.
My conclusion, that a scrutiny is not necessary in a case like thepresent one has been reached mainly by the consideration of our ElectionsOrder. I need only to slate in addition that it is supported bystatements to the same effect by text-writers in England (14, Halsbury,p. 305 ; Parker, 1959, p. 157).
The learned Election Judge who tried the second Welimada Petition{E. S. Peiris <b another v. H P. Sameraireera 3) has held in a judgmentdelivered on 6th October 1007 that under our law a scrutiny must be heldbefore a seat can be awarded to an unsuccessful candidate. That con-clusion was reached after full consideration of s. 85 and was based largelyon the opinion that this section alone authorises the striking off of votes.
I agree with that opinion. But the judgment does not examine thequestion why a scrutiny is held ; nor naturally docs it take into accountthe answer to that question, which as I have tried to show is to trace andreject ballot papers which an Election Judge has previouslj' held to beinvalid. Had the purpose of making a scrutiny been considered, it may-have become apparent that in that case also there may have been noneed to identify and reject ballot papers, because the Court already knew
1 21 Q. B. D. 70.* (1061) 3 A. E. E. 351.
1 (1967) 71 N.L. R. 250.
H. X. G. FERXAXDO, C.J.—Peir is v. David Per era
245
that all the votes cast for the disqualified candidate had been thrownaway. The decision in that case must be regarded as overruled in sofar as it conflicts with the present judgment.
Counsel for the respondent urged that in the event of this appeal beingdecided against him, the respondent should now have an opportunity tofile recriminatory objections against the candidate for whom the seat hasbeen claimed in this petition. Rule S of the Election Petition Rulesprovides that such objections should be filed six days before the dayappointed for the trial of the petition, but the respondent failed to fileany such objections even on the day of trial. I do not find in the recordof the proceedings any justification for the explanation now given thatthere was any understanding between Counsel or on the part of the trialJudge that the filing of these objections may be delayed until the Judgehad decided the question whether the petitioners were in law entitled toclaim the seat for the unsuccessful candidate. The Judge on 21stFebruary 1968 stated that the necessity-£o lead-evidence against theunsuccessful candidate would arise only if this question is answered infavour of the petitioner. Had any suggestion been made in Court of thepossibility of filing recriminatory objections after the time fixed in Rule 8,
I am very nearly certain that the learned Judge would have rejectedit because he had no power to approve such a suggestion. Nor is itreasonable to impute to the petitioners’ Counsel any agreement toallow to the respondent unlimited time to file the objections. Thepetitioners’ Counsel had nothing to gain by an agreement sodetrimental to the interests of his clients. I see no reason for grantingthe opportunity now sought.
For the reasons which have been stated by my brother Weeramantryand in this judgment, the finding of the learned Election Judge that theseat cannot be claimed in this case for an unsuccessful candidate has tobe set aside, and the appeal of the petitioners has to be allowed.
The judgment of this Court delivered this day in Election Appeal No. 3of 1968 affirms the determination of the learned Election Judge that theelection of the respondent to the present appeal was void.
It is now further determined that Mr. George ICotelawala,the candidate who received the second largest number of votes castat the Election wa3 duly elected the member for Electoral DistrictNo. 27—Bandaragama, at the Election held on 23rd September 1967.
The order of the learned Election Judge that each party to theElection petition will bear his own costs is set aside. The petitionersshould, according to our conclusions, have succeeded on both the claimsmade in their petitions, and they will accordingly be entitled to the costsof trial before the Election Judge. But each party will bear his owncosts of the present appeal.
SlRIMAKE, J.
[His Lordship’s dissenting judgment in this appeal, beginning with thewords ** In the second appeal ”, appears at pp. 225 et seq. (supra).]
246
WEERAMANTRY, J.—Petris v. David Pcrcra
WEERAMANTRY, J.—
A bye-electiori was held on 23rd September 1967 in respect of theBandaragama seat in the House of Representatives. At this bye-electionthere were three candidates—the respondent to this appeal, one GeorgeKotelawala and one Eustace Bandara. The respondent secured thelargest number of votes and was declared the duly elected Member forBandaragama.
9
The respondent had earlier contested the same seat and had beenunseated upon an election petition presented against him alleging interalia that he or his agent or other persons acting on his behalf or with hisknowledge and consent had published false statements of fact in relat ion tothe personal character or conduct of a candidate at that election and assuch was guilty of a corrupt practice under section 5S (1) (</) oi the Ceylon(Parliamentary Elections) Ordcr-in-Council. The Election Judge whoheard that petition dismissed it, but an appeal lodged against that decisionto the Supreme Court was successful and the three Judges hearing theappeal held the election of the respondent to be void on the ground ofcorrupt practice committed by the respondent’s agent, one Jayatilekc.
' The same three Judges after giving Jayatilekc an opportunity to show'cause why he should not be. reported to his Excellency, issued a report tothe Governor-General under section S2 C (2) (6). This report waspublished in Government Gazette No. 14,765/2 of 2nd July 1967 in termsof Section 82 D (2) (a).
The consequence of the. report and its publication in the Gazette wasthat the respondent became, in terms of section S2D (2) (b) (ii), subject tothe incapacities prescribed for those convicted of corrupt practice andthe respondent consequently became incapable for a period of seven yearsof being registered as an elector or of voting-at an election or of beingelected or appointed a Member of Parliament.
It was after his disqualification that the respondent contested theBandaragama scat at the byc-elcction held on 23rd September 1967. Hisright to be declared elected was challenged by the petitioners-nppclJantson the ground that by reason ofthereport as aforesaid to His Excellency,the respondent had become incapable of being elected a member ofParliament and that by reason of his offering himself as a candidate, theelectors were prevented from electing a candidate qualified to bo elected.
In the same petition the petitioners claimed that George Kotelawala,the candidate placed second at the election, had the largest number oflawful votes and as such was duly elected and ought to have beenreturned.
The respondent’s position was that the provision in the ParliamentaryElections (Amendment) Act No. 19 of 194S relating to a report by theSupreme Cour t upon ana] peal, so far as it related to a finding that a
W'EERAMANTRY, J.—Peiris v. David Perera24>
corrupt or illegal practice had been committed, -was not dii^jdaesed byParliament. This position was taken up in reliance on certain obsSicvatiotiaof YVijeyewardene, A.C.J. in Thambiayah v. Kvlasingham.1
Tho learned Election Judge in a most comprehensive judgment hasrejected this contention on the ground that the observations ofWijeyewardcne, A.C.J. were made obiter and the provision referred towas valid. The election of the respondent to this scat was thereforedeclared void. The learned Election Judge refused however to acccdo tothe petitioners' claim that the seat should be awarded to the candidateplaced second at the poll.
There has been an appeal to this Court by the respondent against thodetermination by the Election Judge that the election Avas void. Thatappeal, Election Appeal No. 3 of 19G8, has been decided against therespondent. In that appeal I have signified my agreement with thelearned trial judge’s findings and with ~tho “view-of -my Lord theChief Justice and my brother Sirimane that the appeal should bedismissed.
The appeal we are now considering, Appeal No. 2 of 1968, is an appealby the petitioners against the second conclusion of the learned ElectionJudge, namely, that the seat ought not to be awarded to the unsuccessfulcandidate.
Before I proceed to consider the main question to be decided by us onthis appeal and to set out my reasons for agreeing with my Lord theChief Justice that this appeal should be allowed, I wish also to signifymy agreement with the views of my Lord in regard to certain preliminarymatters raised by the respondent—the contentions that tho claim of aseat for the unsuccessful candidate must in every case be associated witha request for a scrutiny and that a claim on behalf of the unsuccessfulcandidate cannot be maintained without a joinder of tho thirdcandidate as a respondent to the petition of the petitioner, so as toenable such other candidate to object to such a claim. Associatedwith this latter contention was the submission that the proceedingsbefore the learned Election Judge took a course in which the respondentwas released from the requirement of filing a recriminatory petition sixdays prior to the day appointed for trial. It -was submitted thereforethat any award of the seat to the second candidate should, despite therespondent’s failure to file a recriminatory petition, be made only afterthe respondent is given an opportunity to .file objections to such electionand lead evidence in support of such objections.
I do not need to deal in detail with these submissions except to observethat on the question of scrutiny, it seems clear upon a reading of section 80,that the provisions of section SO (d) do not afford a relief in themselves,but only a means towards obtaining relief, for a scrutiny by itself, without
1 (1918) 50 N. L. R. 25.
24SWEERAMAN'TRY, J.—Paris v. David Pcrcra
more, gives no redress nt all. The eventual relief sought in such a casemust therefore be found in one of the other sub-heads of section SO, andthe sub-head under which such relief most readily finds a place is section80 (c). It follows therefore that a claim to have the seat for anunsuccessful candidate is not necessarily bound up with the requirementof a scrutiny, and that a scrutiny is not a pre-requisite to every claim for ascat. Section So (1) itemises the votes that may be struck ofF upon ascrutiny but it does not follow from this provision that it is only upon ascrutiny that votes may be regarded as thrown away. With much respectI therefore find myself unable to subscribe to the view expressed inPeirisv. Samaraiveera1 that scrutiny is in all cases a necessary pre-requisiteto a claim that the scat be awarded to the unsuccessful candidate. Ithas been stated in that judgment, as a necessary corollary to tho viewtherein expressed regarding scrutiny, that our law does not recognise theconcept of votes given to a disqualified candidate being considered castaway. I would respectfully dissent from this view as well, for the reasonthat it follows upon the incorrect premise to which I have alreadyreferred.
On the question of joinder of the third candidate, there is no rule of ourlaw that other candidates should be joined, although in certain otherjurisdictions, as for example in India, there would appear to be such arequirement when tho seat is claimed for an unsuccessful candidate. Inthe absence of any express provision to such effect under our law it wouldnot, for the reason stated by Sly Lord, be correct to dismiss a claim for theseat on account of such non-joinder, having regard in particular to thepossibility always open to such other candidate to apply that he bemade a party to the proceedings.
It-suffices to observe on the question of an abandonment or waiver of theimperative requirement that a recriminatory petition should be filed sixdays before the day appointed for trial, that at the preliminary proceedingsheld some weeks anterior to the trial there was no necessity for therespondent to sec;k exemption from this requirement, for at that stageample time was still available to him for compliance. At thecommencement of the trial on tho other hand, the non-compliancc withthis imperative provision of statute law having already occurred and theattendant consequences having already ensued in law, it was not withinthe competence of the Court to grant relief against these consequences norwas there any expression by counsel for tho appellant of any willingnesson his part to abandon the advantage accruing to him from therespondent’s failure to comply with the statute.
Having said so much in regard to these preliminary matters, I now passon to the main question with which we arc concerned in this appeal,namely the question of the claim that the seat be awarded to theunsuccessful candidate.
* (19C7) 71 K. L. /?. 259.
WEE RAMAN TRY, J.—1‘ciris v. David Pcrcru
240
Our law, following the English Law on this matter, provides that thescat may be awarded to the candidate next at the poll in cases where thevotes cast for the successful candidate arc regarded as having beenthrown away. It is clear that where a vote is cast by a voter withknowledge of a disqualification which is definite and certain at the time,that vote must be regarded as thrown away so that it will be treated asnot cast, and that upon the elimination of such votes the seat will beawarc’eJ to the candidate next at the poll.
In order that a disqualification be regarded as definite and certain,it must in the first place be based on facts which arc definiteand certain. If the facts grounding the disqualification are not definitethen the vote cannot be regarded as thrown away. For instance, ifthere is an allegation of facts at the time of the election which becomedefinite and certain only at a later point of time inasmuch as those factshave not been adjudicated upon at the date of the election, thev remain,so far as the voter is concer ned ,~m c re improved allegations. “In-suchcases, although the candidate may be declared disqualified and theelection avoided, the seat cannot be awarded to the next candidate, forthere is not that definiteness about the facts grounding the disqualification,which would be essential if the votes arc to be treated as thrown away.As Coleridge, C.J. observed of such votes in Drinku:ater v. Dcakinl, a caseof alleged acts of bribery, “ Invalid, upon proof of his bribery, for thepurpose of seating him, they are ; thrown away, for the purpose of seatinghis opponent, they are not. ”
Tho principle underljdng such a rule is self-evident and needs noelaboration, for a vote cannot be treated as thrown away merely becausethere was an allegation of fact about the candidate for whom they werecast- which at the time of voting may have been true or untrue and whichthe voter could not be expected, and would not in most cases be able, toverify.
If however the facts grounding the disqualification are definite andcertain at the time of the election, two alternative positions requireconsideration. There is in the first place the case where the law applicableto those facts is itself definite and certain in the mind of the voter, andthere is, secondly, the j^ossibility that although the facts are definite andcertain the voter is not certain that disqualification results in law fromthose definite and certain facts.
In the first of these alternative cases the disqualification would clearlybe a definite and certain disqualification and a vote cast with knowledge ofthat definite and certain disqualification would be a vote thrown away.It is the second alternative which needs closer examination in the contextof this case for, as will presently appear, the instant case is one where thefacts grounding the disqualification were definite and certain but it isalleged that there was some uncertainty in the minds of voters in regard to
1 (1874) 9 L. R. O. P. 626 at 637.
250
WEERAMANTRY, J.—l*ciris v. David Perera
their legal effect. In such cases the question arises whether a vote castwith knowledge of these facts, but with uncertainty as to their legalresult, is thrown away if disqualification is the true legal effect of thesefacts. Must the voter, as in other areas of the law, be presumed to knowthe true state of the law, or, in the sphere of election law, is there to be anexception to this rule ?
It is common ground in this case that at the time of-the election thefacts grounding the disqualification were definite and certain and that thevoters had notice or knowledge of these facts. Two views had howeverbeen expressed to the voters regarding the disqualifying effect in law ofthese facts.
The definite and certain facts which the voter knew or had notice of■were the facts of the report to the Governor-General and the publicationthereof in the Gazette. It was regarding the legal effect of these facts thattwo views were presented to the voter.
I should at this stage refer to the averments of fact on the basisof which the legal question which I have outlined will have to beconsidered.
The petition of the appellants states that the incapacity of therespondent was brought to the notice of persons entitled to vote in thefollowing ways :
About 50,000 notices in Sinhala issued by the supporters of thedefeated candidate were distributed all over the electorate. Thisnotice, which has been reproduced in the petition, informed them cf thereport of the three Judges to His Excellency the Governor-General andindeed reproduced this report. This notice also informed the electors ofthe fact of publication of this report in the Government Gazette andreproduced the relevant extract from the Gazette.
In the course of speeches made by the defeated candidate andother speakers at several election meetings held in the electorate insupport of the candidature of the defeated candidate, the disqualificationwas brought to the notice of the electors.
By reason of the wide publicity given to this disqualification thc-matter was widely discussed at election meetings of the respondent byseveral spicakcrs.
The respondent’s ineligibility and incapacity for election werebrought to the notice of the Returning Officer in the course of an objectionon the date of nomination.
The petition goes on to aver that the respondent’s incapacity anddisqualification Averc matters of notoriety in the constituency at the timeof the election and were well known to all persons entitled to A'ote andthat the persons avIio voted for the respondent knew' Avell at the time of
W'KEHAMAXTRV, J.—Petris v. David Pcrertt
2ol
voting, of this incapacity and disqualification. The votes given to therespondent arc hence claimed to have been thrown away and to be nulland void. No evidence was led at the trial but in support of theaverments in this petition the petitioners filed the affidavit marked FI.The respondent likewise set out his position on matters of fact in anaffidavit marked Rl.
The affidavit of the petitioners states that in view of the disqualificationof the respondent-, objection was taken to his nomination before theReturning Officer and that the Returning Officer disallowed the objection.According to the affidavit sufficient notice to the effect that therespondent was a person disqualified from being elected b}* reason of thecircumstances referred to was given to the voters of the constituency* bydistribution of leaflets and by speeches made at political meetings held insupport of the candidature of George Koiclawala- and the said allegeddisqualification and the facts constituting the same were a matter ofpublic notoriety in the constituency. The respondent in an affidavitof the same date admitted all the averments in the affidavit of thepetitioners and we thus have on this important question of fact theconcurrence of both sides in the position that the facts grounding thedisqualification had been brought to the notice of voters and werealso a matter of public notorictj* in the constituency. It will thus beseen that the report of the Judges to His Excellency and the duepublication thereof were facts which at the date of the election werenot mere allegations but were existing and established arid which, asdistinguished from the legal consequences following therefrom, admittedof no uncertainty.
Having made these admissions the respondent goes on in paragraph 2of his affidavit to explain that he, his lawyers, supporters and agents gavesufficient notice to the voters of the electorate by the distribution ofleaflets and also by speeches made at political meetings, of certainmatters in reply to the allegation that he was disqualified. He statesthat he explained to the satisfaction of his supporters in the electoratethat the Supreme Court had held in the case of Thambiayah v. Kula-singham 1 that the provision in the Parliamentary Elections (Amendment)Act No. 19 of 194S relating to a report of the Supreme Court, so faras it embodies a finding that a corrupt or an illegal practice has beencommitted, was not duly passed by the Ceylon Parliament. Theseprovisions were stated, in view of this decision, to be ultra vires.
It is significant also to note that the petitioners in their affidavit admitthe averments in paragraph 2 of the respondent’s affidavit; and we arethus left in the position that while the respondent admits that the peti-tioners gave due notice to the electorate of the facts constituting thedisqualification, and indeed that these facts were matters of publicnotoriety, the petitioners admit wide notice to the electorate by and on*behalf of the respondent that the circumstances relied on by thepetitioners did not in law e.onstitute a valid disqualification.
1 (J9JS) 50 N. L. B. 25.
WEERAMANTRY, J.—Pciris v. David Perera
ox*
I proceed therefore on the basis that there was knowledge on the partof the electors of the certain and established facts of the Election Judge’sreport and the publication thereof in the Government Gazette but thatthere was also material before them on which they were invited to doubtthat legal incapacity flowed from those facts.
As much has been said concerning the uncertainty in the mind of thevoter arising from the view taken by Wijeyewardene, A.C.J., it becomespertinent, though of course this circumstance docs not conclude thematter before us, to examine the relative weight of the opposing matterspresented to the voter.
The submission for the respondent is that the opinion expressed byWijeyewardene, A.C.J. is the judgment of three Judges of this Court andthough the report to His Excellency is also a report of three Judges ofthis Court, the voter was entitled to act on the basis of the judgment,which, to the average voter at least, was sufficient to create a doubt inhis mind.
It has been shown in the connected appeal, in the judgment of m3'Lord the Chief Justice with which my brother Sirimane and I agree—andindeed that was the view strongly expressed by the learned ElectionJudge himself—that WijC}'e warclcnc, A.C.J.’s view in regard to theinvalidity of the report was not essential to the judgment in that casebut was a view expressed purely obiter, and also that that view wasincorrect in law.
Moreover, what must be weighed againstthe decision of Wijeyewardene,A.C.J. is not the fact that three Judges have acted in terms of theimpugned section in sending their report, but rather that there is in- existence an express provision of statute law empowering the Judges tosend such a report and annexing to such report a statutory disqualifi-cation. The dictum of Wijeyewardene, A.C.J. is not in jxxri materiawith an express provision of statute law; and where the voter is givendue notice of an express provision of statute law which he disregards onthe basis of an obiter dictum, he must be taken to disregard suchprovision of statute law at his risk. Although the view presented to thevoter on behalf of the respondent was thus not on a level of parity withthat presented against him, I shall nevertheless examine the principles oflaw applicable as though there was such parity and as though legalcpiestioas of doubt and intricacy arose in consequence.
This then is the background against which we must consider the legalquestion which I have already outlined. Upon such a state of facts wcmust determine whether in the operation of the principle that everycitizen is presumed to know the law, an exception should be made in thesphere of election law, in cases involving the application of law which isuncertain or difficult to facts which arc known. Associated with thisproblem is the question whether there must be wilful perverseness on thepart of voters voting for a disqualified candidate in order that their votesshould be regarded as having been thrown away.
WEERAMANTRY, J.—Pciria v. David Pertra
253
No section of the Parliamentary Elections Order-in-Council affords usany guidance on this matter unless indeed one invokes the analogy ofsection 85, the provision dea'ing with votes that may be struck off upona scrutiny. These rules, as will appear later on in this judgment, seem toset out correctly the provisions of English law on the question whenvotes will be regarded as having been thrown away. There is also theprovision in section S6 that on any matter of procedure or practice notprovided for by the Order or by the rules or by Act of Parliament, theprocedure or practice followed in England on the same matter shall, sofar as it is not inconsistent with the Order or rules or Act of Parliamentand is suitable for application to the Island, be followed and shall haveeffect. Furthermore, throughout the history of our election law, ourCourts have always acted on the assumption that guidance is to be foundin the English law on matters of difficulty, as for example Akbar, J. didin Cooray v. de Zoysa >, another case in our reports discussing the conceptofvotes being thrown away. It would not be inappropriate to add alsothat the argument in this case lias proceeded on the-assumptiomon bothsides that a proper source for deriving guidance on this matter is theEnglish law—a system which, in matters of Parliamentary elections, •embodies the wisdom of several centuries of experience.
In this judgment it thus becomes necessary to examine the English lawas set out in the principal text books on the subject, the earlier Englishdecisions referred to in these texts and the law as finally stated andsettled in two decisions which are of compelling authority. I shall alsorefer briefly to the law as understood and applied in Ireland, where toothe same questions have arisen which we are now considering, and to theonly other Ceylon case where these principles have been discussed.. Ishall finally examine section S5 (1) (/) of the Cejdon (ParliamentaryElections) Order-in-Council. This section, though limited only to claimsfor a scrutiny, would appear to state the law in a manner confirming theviews I shall express.
The English cases reach back to the days when the disqualification ofa candidate was exclusively within the purview of Parliament, whichadjudicated upon such matters through Parliamentary committeesappointed specially for the purpose. This function was later vested inthe Courts and we thus have for our guidance the decisions of Parlia-mentary committees and in later times the judgments of Courts of law.As Coleridge, C.J. observed in Drinkwater v. Deakin 2 the law as to thedisqualification of candidates and notice of such disqualification to votersis to be collected from the decisions of Courts of law and of Parliamentaryelection committees which lat ter, if not binding upon Courts, are yet tobe treated with respect as an exposition of the law of Parliament whichis part of the Common Law itself.
These decisions have been collected in the various text books on thesubject and these texts afford a convenient point of commencement for astudy of the decisions relating to the award of a seat to the unsuccessful
1 (1936) 41 N. L. R. 121 at 140.
* (1874) 9 L. R. O. P. at 633.
254
WEEllAMANTRY, J.—Peiris v. David Pcrcra
candidate upon the unsealing of the successful candidate. Difficultyarises, however, owing to the somewhat different presentation in thevarious texts, of certain points of law with which we are particularlyconcerned in this case. The difficulty centres principally around thequestions whether knowledge of the facts from which disqualificationarises is sufficient without actual knowledge that disqualification resultsin law from these facts, and whether wilful perverseness on the part ofvoters is required as a condition precedent to their votes being treated asvotes thrown away. On this matter we have on the one hand the law asstated by Rogers, Schofield, Fraser and the earlier editions of Halsburyand oh the other the law as slated in the third edition of Halsbury and inParker, and it is on these latter authorities that the respondent relies.
It will be apparent from the ensuing discussion that this latter view,held by only a minority of the text writers, is not only unsupported b-authority but contrary to the law as now settled by decisions of bindingauthority in England.
*
Rogers on Elections states the law in these terms :—
** votes may be lost or thrown away, 1st by voting for a candidatewho is disqualified either—
(а)after notice of his disqualification ; or
(б)with knowledge of the disqualification or of the facts creating
it. 2nd”J.
The principle underlying this rule is that votes given for a disqualifiedcandidate in the circumstances stated arc to be considered in the sameway as if such votes had not been given at all.
According to Fraser a vote will be regarded as lost or thrown awaywhen it is given for a disqualified candidate—
after a sufficient notice of the disqualification,
knowing that the candidate is disqualified,
knowing the facts by reason of which the candidate is disqualified, or
when the fact of the disqualification or the facts by which it is
caused are notorious 2.
Schofield observes that the rule of law in elections generally is thatwhere a voter receives due notice that a particular candidate isdisqualified before he votes, and yet persists in voting for that candidate,he must be taken as having voluntarily abstained from exercising hisfranchise, and, therefore, however strongly he may in fact dissent, and inhowever strong .terms be may dissent, he must be taken to. assent tothe election of the opposing candidate 2.
1 20th cd. vol. JI P- SO.s 2nd ed. p. 226.
3 ParliarnciUary Elections,-2nd ed.p. 321.
WEE RAMAN TRY. J.—Peiris v. David Pcrera
So also the first and second editions of Halsbury formulate the law inthe terms that in the absence of a notice of disqualification a new electionought to be held unless either the person whose votes are sought to betreated as thrown away can be shown in fact to have been aware of thedisqualification or the disqualification is of a sort whereof notice is to bepresumed x. In a footnote to this portion of the text these two editionsof Halsbury go on to explain the practice of the Parliamentary committeesin terms of the decision in the 2nd Cliiheroe case 2, as being that it willin all cases be inferred that when the voter is aware of the facts he isaware of the legal deduction from those facts however intricate anddoubtful such deduction may' be.
The third edition of Halsbury states however that the disqualificationmust be founded on some positive and definite facts existing andestablished at the time of the poll so as to lead to the fair inference ofwilful perverseness on the part of the electors voting for the disqualifiedperson 3. The reference to wilful perverseness, it may be observed, findsno place in the first or second editions of this work. The third edition{though not the first or the second) goes on also to state the propositionthat if the disqualification is not notorious and depends on legal argumentor upon complicated facts and legal inferences it would appear that eventhough the candidate may’ be unseated by reason of his disqualification,the votes given for him will not be thrown away so as to award the seatto the candidate with the next highest number of votes4. Inconsist-ently however with these observations, the same edition proceeds toobserve that in order that votes given for a candidate may be consideredthrown away, voters must before voting either have had or be deemed tohave had notice of the facts creating the candidate’s disqualification andthat it is not necessary to show that the elector was aware of the legalresult that such a fact entailed disqualification.. The same edition omitsaltogether the quotation from the 2nd Cliiheroe case contained in theearlier editions.
The law as so stated in the earlier part of the section cited from thethird edition of Halsbury finds support also in Parker where it is statedthat in order that votes given for a candidate should be regarded ashaving been thrown away, the disqualification must be founded on somepositive and definite fact existing and established at the time of the pollso as to lead to the fair inference of wilful perverseness on the part of theelectors voting for the disqualified person5. The same author alsosubmits that a disqualification depending on a novel question or one ofdoubt or difficulty or upon legal argument and decision upon complicatedfacts and inferences, does not cause votes to be thrown away so as to scatthe next candidate
2nd ed. Yol. XII pp. 2S5-6 ; 1st ed. Vol. XII. p. 300.
Cliiheroe — Borough 2nd case, (JSS3) 2 Pow. R <£? D 276 at 2S5.
s 3rd. ed. Vol. XIV p. 305 s. 549.
Ibid.
Election Agent and Returning OJficer, 5lh ed. p. 152.
Ibid.
256
WEERAMAXTRY, J.—Peiris v. David Perera
These latter authorities are relied on by the respondent in support ofhis contentions (1) that wilful perverseness on the part of the electors isessential to such votes being regarded as thrown a way, and (2) that votesare not thrown away where there is uncertainty or difficulty in theapplication of the law to facts which are known.
For reasons which I shall set out later in this judgment, it seems clearthat the JaM' is now settled in the sense opposite to what would appearfrom a perusal of Parker and the latest edition of Halsbury, for the casesof Beresford – II ojie v. Lady Sandhurst1 and Bristol South-East 2 havecategorically stated the law in the opposite sense and by these decisions,if English law is to be any guide, we should feel bound.
The views of the two authorities cited being thus in conflict not onlywith the law as stated by Rogers, Schofield, Fraser and the earliereditions of Halsbury, but also with the sense in which the law is nowsettled in England, it becomes necessary to examine in greater detailthe cases referred to in Parker and the .third edition of Halsbury with aview to ascertaining whether in fact the authorities cited bear out theproposition they enunciate. It will appear from this examination thatthe cases cited do not support these propositions but indeed lend supportto the views of the other text writers (including the earlier editions ofHalsbury) and in fact indicate that even the weight of early authoritypreponderated in favour of the opposite view.
Instances where votes cast for a disqualified candidate have beenconsidered thrown away and the seat awarded to the candidate next onthe poll date back as far as I have been able to trace from the reportsavailable to me, to the very commencement of the 18th century, theprinciple having been acted upon in the Queen v. Boscaween3 in thethirteenth year.of Queen Anne. Many cases occur in the early reportsarising out of the failure of candidates to have previously taken thesacrament as required by a statute of Charles II 4. In one of thesecases—R v. Hawkins 5—Lord Eldon observed that votes cast knowinglyfor a disqualified candidate were as though they had been cast “ for adead man ” ; and in Reg v. Coals 0 Lord Canijibell, C.-J. observed that “ itis the law, both Common Law and the Parliamentary Law,- and it seemsto me also common sense, that if an elector will vote for a man who heknows is ineligible, it is as if he did not vote at all, or voted for anon-existing person, as it has been said, as if he gave his vote for theman in the moon.”
c
The question whether a distinction should be drawn between caseswhere the disqualification was clear and those where it was doubtful anddepended on argument and decision as to the effect of complicated factsand legal inferences, was thrown up quite early before the electioncommittees and on this matter we find early decisions on both sides of the
1 (1SS0) 23 Q. D. D. 70, C.A. 4 See It. v. Hawkins 2 Dow. 121, US; 103 E.R. 755.
* (1061) 2 Q. B. D. 257.‘ Ibid.
3 Easier. 13. .-inns.4 (1S54) 23 L. J. Q. B. 133.
WEEK A M A XTR V, J.—Peiria v. David Pcrera25i
line. Both lines of decision are conveniently collected in Parker’s work *,and it is significant that even at that carty stage in the decisions on oneside of the line, the principle ignorantia juris non excusat, so firmlyestablished in other departments of the law, was applied.
The learned editor of the third edition of Halsbury cites four cases insupport of his statement regarding wilful perverseness—Clilheroe (Borough)yo. 2, The Launceston case (Drinkwater v. Deakin), Gosling v. Veley andClaridge v. Evelyn. The only authority cited by Parker on this questionis the 2nd Clilheroe case, with a note that it was approved in Drinkwaterv. Deakin.
In support of the principle relating to uncertain or difficult law thethird edition of Halsbury cites Cox v. Ambrose, Etherington v. Wilson,Abingdon , Penryn, 2nd Clilheroe and 2nd Cheltenham. The same footnotein which these cases a|>pear contains as cases to the contrary—Wakefield,Belfast, Cork, Tavistock, 2nd Horsham-and Leominster. The cases citedby Parker in support of the view that such votes arc cast away areWakefield, Belfast, Cork County, Tavistock, 2nd Horsham and Leominsterwhile the cases cited in support of the opposing view arc Abingdon,. Penryn,2nd Clilheroe and 2nd Cheltenham. In favouring the latter view Parkercites also the case of Cox v. Ambrose. The same author relies also on thefact that in the case of Drinkwater v. Deakin the Lord Chief Justice seemsto have doubted whether votes are thrown away when the disqualificationdepends on an uncertain or obscure legal question.
An examination of these cases'is perhaps best begun by examining the2nd Clilheroe case 2 which is cited both in the third edition of Halsburyand in Parker and was much stressed by both counsel at the argumentbefore us.
In this case the successful candidate had been the unsuccessfulcandidate at an election the previous year. There had been a petitionagainst the successful candidate at the first election and the committeehearing that petition had resolved “ that extensive and S3rstematictreating together with other corrupt and illegal practices, prevailed atthat election.” In view of this finding upon the first petition it wasalleged in the second jJetition that the successful candidate at the secondelection had been guilty of corrupt practices at the first election, and thathe was thereby rendered incapacitated and ineligible from sitting orbeing chosen to sit. This second petition was, it is important to note,confined to a charge of corrupt practice against the candidate and therewas an allegation that agents, friends or others on behalf of thatcandidate had been guilty of corrupt practices at the first election.
It was the case for the petitioner that notice of this incapacity hadbeen duly given to the candidate and to the electors at the second electionand that votes given for the candidate were thrown away. It was urged
1 Election Agent and Returning Officer, 6th ed.p. J56.
* (1853) 2 P, R. D. 276.
253
WEERAMANTRY, J.—Peiria v. David Pcrera
further at the hearing that the resolution of the first committee wasadmissible as evidence of notoriety as regards treating by the candidateat the earlier election and also that it amounted to an adjudication of hisdisqualification.
The committee hearing this second petition held against these lattercontentions and ruled that the resolution of the first committee wasinadmissible, a decision easy enough to understand in view of thegenerality of the earlier findings and in view of the restriction of the, second petition to charges of corrupt practice against the candidate. Inthat case therefore the alleged acts of bribery and corrupt treating b3r thecandidate at the first election were at the date of the second electionfacts which yet remained unproved and were but mere allegations. Thevoter at the second election could not therefore have been fixed withknowledge of the truth or falsehood of these allegations.
It was lienee argued in support of the votes cast for the successfulcandidate that it would be unfair to the voter if his vote might bo lost bya disqualification “ arising from facts, of the truth of which he could formno opinion and which might upon inquiry by a competent tribunal turnbut to be unfounded.” The Committee, while accepting this contention,observed that “ by the common law the principle seems to be firmlyestablished, that where a candidate is in point of fact disqualified at thetime of an election, all votes given for him with knowledge of the factupon which such disqualification is founded, must be considered asthrown away. This knowledge may be established cither by distinctnotice or by notoriety, and it will in all cases be inferred, that where thevoter is aware of the facts, he is aware of the legal deduction from those facts,however intricate and doubtful such deductions mag be” However theydrew attention to the hardship which may arise in certain cases where thefact of such disqualification is only subsequently established and as far asthe voter is concerned there is only a mere assertion by the opposingparty that a disqualification exists, the truth or falsehood ofwhich he mayhave no means of ascertaining. The voter would then run the risk ofhaving his vote thrown away if on subsequent investigation thatdisqualification should be established.
The Committee therefore held that the disqualification “ must befounded on some positive and definite fact, existing and established atthe time of the polling, so as to lead to a fair inference of wilfulperverseness on the part of the electors.”
The reference by the Committee to wilful perverseness is not in theform that it is a requisite that must be proved, for the requisite statedconsists of positive and definite facts existing and established at the timeof polling. Upon proof of such facts, in disregard of which the voternevertheless votes for the candidate concerned, there would be a fairinference of wilful perverseness, but the latter is an inference orpresumption following from the requisite of positive and definite facts
WEERAMANTRY, J.—Veins r. David Ferera
259
and is not itself a requisite of proof. Indeed, as will presently bepointed out, proof of actual perverseness would involve a burden whichin a case involving thousands of votes, would be impossible todischarge.
The view of the committee having been thus expressed in a case wherethe facts were not existing and established at the time of polling, it cannotbe viewed as authority for the proposition that where the law is uncertainor difficult, the vote is saved. Indeed the committee set out as firmlyestablished and settled law the proposition that where the voter is awareof the facts, he is aware of the legal deduction therefrom “ howevbrintricate and doubtful ” ; and nowhere docs this case envisage anyspecial departure in the sphere of election law from the ordinary fixedand settled maxim that ignorance of the law does not excuse. Moreover,wilful perverseness as an inference or presumption resulting from anignorant or incorrect view of the law applicable to known fads was notreferred to or contemplated. ~~ ~— – – – • —
I next refer to the case of Drink water v. Deakiii the second'decisioncited by Halsbury, and relied on also by Parker as supporting the Clithcroecase on the question of perverseness. One of the candidates contesting aParliamentary election was in that case found guilt}' of corrupt practice inthat on the day of nomination lie gave leave to his tenants to kill rabbitson his estate for the purpose of influencing their votes at the election.On the morning of polling day, before the polling, the agent of the rivalcandidate gave notice to the electors that lie believed the candidate hadbeen guilt}' of this corrupt practice and that the candidate being thusdisqualified, all votes given for him would be thrown away. ' Thepetitioner also claimed the seat on the ground that the votes given tothe successful candidate had been thrown away with knowledge of thedisqualification. It was held that although bribery by a candidate atan election renders his election void if he is found guilty of it on petition,no disqualification arose until after the candidate had been found guilty ofbribery on petition and consequently that the petitioner was not entitledto the seat. Lord Coleridge, C.J. and Brett, J. (with the latter of whomDenman J. agreed) were at one on the question that though bribery at anelection is an offence which renders that election void, it does not renderthe candidate incapable of being a candidate at that election. Howeverthe judgments of Lord Coleridge, C.J. and Brett, J. exhibit a differenceof opinion in regard to the question whether votes are to be considered ashaving been thrown away when the disqualification is one which resultsfrom the application of uncertain legal principles to known facts. LordColeridge, C.J. seems not to have departed from a view which he expressedin the course of the argument in that case that voting for a man obviouslyand notoriously disqualified is a very different thing from voting for a manwho proves to be disqualified after much doubt and argument upon theeffect of complicated facts or legal inferences. Brett, J. however said,in a passage cited with approval by Akbar, J. in Cooray v. de Zoysa 2,
1 In re Launceston (1874) 20 L. T. 823* (1936) 41 N. L. R. 121 at 140.
260
WEERAMAXTRY, J.—Peiris v. David Perera
“ I accept that which seems to me to have been always admitted to bethe law before the case of Reg. v. Mayor of Tewkesbury, viz. the proposi-tion which I have expressed, as generally applicable to all cases wherenotice of the law as affecting any subject-matter is material, that is tosay, where by the law, if certain facts exist incapacity exists, and whereby the law, if the law were known to the elector, his vote would be thrownaway if he persisted in voting for the disqualified candidate, he cannot,if the facts exist to his knowledge, or if he have notice of the facts equivalent toknowledge, which by law produce incapacity for election in the candidate,render his vote valid by asserting that he did not know that the facts by lawproduced such incapacity, or that his vote would be thrown aicay if he votedfor such candidate
The view of Brett, J. must be considered to be the view of the Court inthis case, for his view had the approval of Denman, J., thus makingit the view of the majority of the Court. The case is thus strongauthority that a voter knowing the facts must be taken to knowthe law applicable to those facts and hence sharply negatives anyrequirement that perverseness should be proved.
Cosling v. Veley 1, the third case cited in the third edition of Halsbury,held that “ where an elector, before voting, receives due notice that aparticular candidate is disqualified, and yet- docs nothing but tenders hisvote for him, he must be taken voluntarily to abstain from exercising hisfranchise ; and therefore however strongly he may dissent and in howeverstrong terms he may express his dissent, he must be taken to assent tothe election of the opposing and qualified candidate, for he will not takethe only course by which it would be resisted, that is to help in theelection of some other person.”
This case went on to hold that if the disqualification depended upon afact which may be unknown to the elector, he is entitled to notice andthat if the disqualification be of the sort where notice is to be presumednone need be given, and contains no suggestion of a requirement ofwilful perverseness. This case was approved of not only by LordColeridge, C.J. and Brett, J., despite their apparent difference of viewsin Drinkwater v. Deakin, but also more authoritatively in Beresford-IIopev. Lady Sandhurst to which 1 shall presently refer.
The fourth and last of this group of cases cited b}' Halsbury, Claridge v.Evelyn 2, was one holding that an infant cannot be appointed to the officeof Clerk of a Court of Bequests and holding votes gi%,en to him to havebeen thrown away. There is no suggestion in that case cither of anj-requirement of wilful perverseness. As the first and second editions ofHalsbury observe 3 this case falls within the. principle of Gosling v. Veleywhich is cited in that work as authority for the proposition that voteswould be considered thrown away if the disqualification is of a sortwhereof notice is to be presumed.
1 (1S17) 7 Q. B. 406.= (1S21) SB. <L Aid. SI; JOG E. R. 1123.
3 1st ed. Vol. XII p. 306 note (i) ; 2nd ed. Vol. XII p. 2SG note (o).
WEERAMAXTRY, J.—Fein's v. David Percra
2G1
It is thus evident that the cases cited are no authority for the proposi-tion that perverseness is a sine qua non for votes to be considered thrownaway ; and as between the different views set out in the third edition ofHalsbury, as opposed to the first and second, the views set out in thefirst and second editions are certainly more in consonance with authorit}’.Furthermore, as already pointed out, there are in the third edition itselfstatements apparently contradictor}' of the view therein expressed.
I move on now to the authorities cited in the two texts under examina-tion, on the second proposition, that regarding the application of uncertainlaw to known facts. Of these I have already dealt with the Clitheroe caseand Drinkwaler v. Dcakin and it remains to consider Abingdon, Penrynand 2nd Cheltenham. These cases arc respectively of the years 1775, 1S19and 1848. Ranged against these arc the cases, cited by both Parker andthe editor of the third edition of Halsbury, of Wakejield1, Belfast_Cork3, Tavistock4, 2nd Horsham5 and Leominster6. It is scarcelynecessary to refer in detail to each one of these cases-;-suffiee it-to-observethat the latter group of authorities is not only more numerous but alsotaken by and large more recent, all six authorities in the latter groupbeing subsequent to 1825, as against one onl}' in the former group. Aspecial reference should also be made to the Leominster case where as inthe present case conflicting views on the law were placed before thevoters, in that a counter-notice was circulated containing the opinion oftwo barristers that the candidate was not disqualified. It was neverthe-less held that votes given to him were thrown away and the candidate .next on the poll was declared duly elected.
As an assessment of these competing lines of authority I cannot dobetter than refer to Brett J.’s statement in Drinkicaler v. Deakin that theview admitted to be law in England, and with which R. v. Mayor ofTewkesbury was out of harmon}', was that an assertion by the voter ofignorance of the legal effect of known facts is of no avail.
I noAV pass on to the case of Cox v. Ambrose relied on in both Parkerand the third edition of Halsbury, which is the next decision calling forexamination. In that case the respondent was a member of a firminterested in certain continuing contracts with a corporation of a borough,which contracts were unexpired at the time of a municipal election inthat borough. Before offering himself as a candidate at the election hedissolved partnership and assigned all the interest in these contracts tothe other partner, remaining liable however on bonds securing the dueperformance of the contracts. The respondent’s candidature wasobjected to on the ground that his connection with these contracts was amatter of notoriety in the ward for which he was a candidate. It washeld that the respondent was not qualified to be elected within themeaning of section 12 of the Municipal Corporations Act I8S2 and thatvotes given to him were votes thrown away. There is a considerable
(1842) B. de Aiut. 317.* (1853) 2 P.R. <fe D. 5.
(1838) Fate, dfc F. 601.-4 (1848) 1 P. R. de D. 258.
(1835) K. de O. 406.* (1827) Rog. 1202.
262
WEERAMANTRY, JPetris v. David Pcrcra
difference between the reporting of the judgment in this ease in the LawJournal and the Times Law Reports. In the Law Journal Reports 1Mathew, J. is reported as having accepted as a complete statement of thelaw governing the matter before him, the view expressed by Brett, J. in. Drinkicater v. Deakin that all that is necessary for considering votes asthrown away is that the facts should be known to the voters, on the basisof which the law. determines that the candidate was incapacitated. Thereport in the Times Law Reports2 however omits all reference toDrinkicater v. Deakin, and quotes Mathew J., as saying “ I can supposea case of reasonable difficulty when a disqualification of a candidate,though known, might not make a man’s vote void . . . The test maybe whether there is a reasonable difficulty as to the facts or as to the law”These statements arc completely absent from the Law Journal Report ofthe judgment,.which accepts Brett, J.’s views and goes on to state thatin the particular case which Mathew, J. was considering there was noreasonable doubt about the law. As between the two versions of thejudgment, the version contained in the Law Journal would perhaps bemore authoritative, but even if one were to take both versions, one seesa strong adoption of the principle that a knowledge of the facts ratherthan of the legal result of these facts, is what is requisite ; and thathaving considered it “ not necessary to go beyond the expressions madeuse of ” by Brett, J. in Drinkicater v. Deakin, Mathew, J. goes on toexpress a passing opinion, not necessary to the decision he was making,that there may be cases of difficulty where a known disqualification maynot render a vote void. The result then is that this decision wouldappear to reinforce the general principle stated by Brett, J. in Drinkicaterv. Deakin, while, the suggestion that a possible exception may arisewhere there is reasonable difficulty on the law is at best a view expressedobiter.
It is necessary now to deal with the case of the Queen v. Mayor ofTewkesbury 3 to which reference has already been made. One of thecandidates at an election of Town Councillors was the Mayor, who wasincapable of being elected by reason of his being Mayor and having actedas Returning Officer. Blackburn, J. and Lush, J. took the view that itwas not enough to show that the voter knew the fact that the candidatewas Mayor and Returning Officer but that there must be knowledge thathe was disqualified in point of law as a candidate. Consequently, votesgiven for this candidate were hold not to have been thrown a wav so as tomake the election fall on the next candidate. There were undoubtedlyin this case strong expressions of opinion by the Judges that those whovoted for the disqualified candidate would not be treated as votingfor a person not in esse unless there was an actual knowledge ofhis disqualification in law. Blackburn, J. stated that the earlier casesshowed that in order to make the vote a nullity there must he wilfulpersistence, against actual knowledge. He went on to observe that ithad been plain to him to be inconsistent with either justice or common
1 (JSOJ) GO L. J. Q. B. Ill at 117.
* (1SGS) 3 L. /?. Q. B. 620.
1 7 T. L. Ii. 59 at GO.
2fi'3
WEERAMAXTRY, J.—Pciris v. David Pcrcra
sense or common law to say that because these voters were aware of acertain circumstance, they were necessarily aware of the disqualificationarising from that circumstance.
It is no doubt quite clear that the Queen v. Mayor of Tewkesbury isauthorit}' in favour of the contention of the respondent but it seemsequally clear that the subsequent cases in England, as for instanceDrinkwaler v. Deakin, repeatedly mention the Tewkesbury case as beingout of line with the law on the point as it had been understood hitherto ;and later cases as well represent a clear departure from the law as thereinstated.
In Etherington v. IYilson *, the disqualification in question was plain.Under a scheme sanctioned by the Court for a charity entitling a parishto select children for Christ’s Hospital, it was provided that no child waseligible unless born in the parish or unless he or his parents had been~~ parishioners of the parish. It-was held—that the—word—- -parishioner..”could not be applied to a person taking a small house in the parishtemporarily for the mere purpose of obtaining a qualification. IffaJins, V.C.had no hesitation in concluding that the whole transaction was colourableand unfair and that the parent of the child was not a parishioner. On thequestion whether a re-election should be ordered, it was held that wherean unqualified candidate was elected after notice to the electors of suchdisqualification, the votes were thrown away and the opposing candidatethough having only a minority of votes was duly elected. Malins, V.C.referred to the Tipperary case as well as Reg. v. Mayor of Tewkesbury anddistinguished the latter case by observing that the disqualification therewas not as plain as in the case before him and that there the candidatewas disqualified on a point of law which the electors might not have beensupposed capable of appreciating. Etherington v. Wilson was thus not acase of a disqualification involving complicated or uncertain law, andwas in fact a case where votes were considered thrown away and thecandidate with a minority of votes awarded the scat, in consequence of adisqualification which was plain.
Hobbs v. Morey 2 is the last remaining case, cited on behalf of therespondent, which must be examined. In that case both at the time ofhis nomination and of his election the candidate was disqualified b3'reason of hi3 interest in a contract with the Council. However the dis-qualification was not apparent on the face of the nomination paper andno notice was alleged to the electorate of this disqualification. It wastherefore held that the votes given for him could not be regarded asthrown away and that the petitioner could not claim the seat. It will beseen that this case turns simply on the absence of notice to the electors ina case where the disqualification was not manifest.
It thus becomes apparent again upon a close examination of this bodyof case law that it affords little support for the contention that where thefacts grounding the disqualification are definite and established, the
1 11875) L. B. 20 Eq. 606.* (1904) 1 K. B. 74.
264
WEERAMAXYRY, J.—Peiris v. David Pcrcra
votes cast for a disqualified candidate are saved by the sole circumstancethat the law applicable to such facts is difficult or uncertain. On thisquestion, as on that of perverseness, the views stated by the majority ofthe text writers would appear to be preferable—a conclusion in which Iam strengthened by the fact that their view is confirmed by the authori-tative decisions in Lady Sandhurst’s case and in the case of Lord Stansgate.to which I shall presently refer.
Before I leave this topic it may also be pertinent to observe, with thegreatest respect, that another proposition contained in the third editionof Halsbury though not in the earlier editions, in regard to the dis-qualification of a Peer to take his seat in the House of Commons, wasproved in Lord Stansgate s case to be incorrect. Here too there has beena departure in the third edition from the text of the earlier edition andthe departure has been authoritatively pronounced to be incorrect. Thisobservation is not in any wa}' meant however to detract from the verygreat authority which undoubtedly attaches to Halsbury’s exposition ofthe law of England in all editions, but with much respect X jjrefer, for thereasons I have stated, to be guided on the matter with which we areconcerned by the first and second rather than by the third edition.Moreover, the difference in the statement- of the law on this topic in thethird edition was not effected in consequence of any development of the. law between the second and third editions but rather in consequence of are-arrangement of the work by the learned editor of the third edition. Onthis topic there were no decisions of significance between these twoeditions, and the case of Lord Stansgate was in fact decided after the -third edition. There is therefore no reason for considering that the lawon this topic as stated in the second edition had in any way been alteredby the date of the third edition.
XIaving said so much in regard to the text writers and the earlier cases,
I pass now to the two later decisions by virtue of which the principlesgoverning cases such as the present have now become in the English lawthe subject of settled authority. These cases arc Beresfvrd-Ilope v. LadySandhurst1 and In re the Parliamentary Election for Bristol South-East.2
The decision of six Judges of the Court of Appeal in the first of thesecases is now treated as the leading authority on the question of thecircumstances in which votes given to a disqualified candidate will beconsidered as having been thrown away, and was unhesitatingly acceptedas binding in the second, which is in fact the most recent English decision,subsequent even to the third edition of Halsbury.
Learned Counsel appearing for the respondent has sought to distin-guish these two cases on the basis that in the case of Lady Sandhurst aswell as in the case of Bristol South-East, the disqualifications were apparentand were based on matters of fact-. In the former case the disqualificationarose from the fact that- the candidate was a woman and in the lat-tei case
1 (1SS0) 23 Q. B. D. 79, C. .4.
* (1964) 2 Q. B. D. 257.
WKEHAMAXTRY, J.—Petris v. David Pertra205
from the fact that the candidate was a peer. It was submitted thereforethat votes cast for candidates who were so obviously disqualified could; appropriately be considered to be votes thrown away and that these twodecisions are inapplicable to the present case inasmuch as the presentcase involves not merely a question of fact but an application of legalprinciples to a question of fact. The question of fact in the present caseis the report of the three Judges to His Excellency but it is said that thisfact cannot, so to speak, be disentangled from the legal question of thevalidity of the report of the three Judges, and differs in this respect fromsuch obvious disqualifications as those stemming from sex or nobility.This argument is connected with the view that there is a requirement ofwilful perverseness in the elector and it is said that when the law isdoubtful or difficult no perverseness exists. It is said further that theconcept of wilful perverseness is inextricably interwoven with the attitudeof a Court in deciding whether to scat a defeated candidate.
It will however be seen presently that the two cases of Lady Sandhurstand Bristol South-East were not cases where the law applicable to thefacts was plain and free from doubt. In both these cases the disqualifi-cations though arising from status resulted not merely from a knownquestion of fact namely that the one candidate was a woman and theother a peer, but from the application to that known state of facts ofdifficult considerations of law, the decision upon which was well beyondthe capacity of the a verage lay voter.
I shall deal first with the case of Lady Sandhurst.
Lady Sandhurst offered herself as a candidate at an election of membersof a County Council under the Local Government Act of 1SSS. She wasduly elected but was unseated on a petition on the ground that being q.woman she was disqualified. The law relating to the question whetherwomen were disqualified from being councillors was discussed.at lengthby Stephen, J., the Election Judge. This discussion involved interalia the construction of several Acts among which were the Local Govern-ment Act of 1SSS, The Municipal Corporations Act of ISS2, The MunicipalCorporations Act of 1S35, Act 32 and 33 Victoria ch. 55, 5 and 6 IVm 4,ch. 70. Lady Sandhurst’s disqualification was therefore not such aswould have been manifest and apparent to all the electors although itwas from a manifest fact that it arose. Indeed the application of thelaw to this known fact was a matter of considerable difficulty, and onegathers from the observations of Stephen J. that far from the legaldisqualification being apparent and obvious, the question whether shewas indeed incapacitated was one of much discussion at the time. AsStephen, J. observed, " the voters were also aware that the legalconsequence might, though they may not have been aware that itactually did, constitute disqualification.”
Lord Coleridge observed that if the fact exists which creates anincapacity, and it is known and must be known to the person voting forthe incapacitated candidate, he had no hesitation in deciding that votes
26G
U'EERA.MAXTRY, J.—Pciris v. Dai-id Perera
so given were thrown away. Lord Esher M.R. thought that the case wasabsolutely determined by the expression of both Judges in Drinkwaler v.Decikin. Lindlcy L. J. observed that once the facts were told to theelector of the incapacity of being elected or where he must be taken toknow them and really does know them, the question as to whether he reallyknows the law on the subject or not is another thing. Lopes L. J. thoughtthat the case was well within the decision in Drinkwaler v. Deakin. Cotton
J. and Fry L.J. stated that, they had nothing to add on this point.
More than one judgment examines the statutory provisions referredto and the cpiestions of interpretation involved. We thus see that abench comprising judges of the highest authorit}- considered that thequestion whether votes were thrown away was concluded by thecircumstance that the voters were aware of the facts from which thedisqualification resulted, quite apart from the question of theirknowledge of the law ajjplicnble to those facts.
Coming now to the case of Bristol South-East, this matter arose uponthe attempt of a member of Parliament who succeeded to the peeragetrpon his father’s death to contest an election to the House of Commons.The election was rendered necessary because the House, had taken theview that the member had ceased to be a member and was disqualifiedfrom membership by reason of his automatic succession to the peerage.
In this case as well, considerable legal argument- was involved. Theposition of the candidate. Lord Stansgatc, was that there v/as noautomatic disqualification in this case, his contention being that thedisqualification arose only upon receipt of a writ of summons to attendthe House of Lords. He had refrained from applying for such a writ andcontended that lie was entitled to renounce his peerage. These conten-tions of the candidate called for a careful and detailed examination ofhis disability in the light of numerous historical and legal considerations,including also the difficult question of the right- of a peer to renouncehis peerage. The judgment as reported in the Law Reports shows thata consideration of these legal and historical questions required aroundfifteen pages of discussion in the judgment and that since much couldhave been said in support of either view, the answer was certainlynot so obvious as to render it manifest to all electors.
It is also significant that as in the present case, support for the candi-date’s contention, that he was qualified was based on high authority, forLord Stansgatc’s claim was based inter alia upon a statement in the thirdedition of Halsbury’s Laws of England. In this edition, though not, asthe judgment points out, in the earlier edition, it is stated that a peer ofParliament is legally incapable of voting at a Parliamentary election eventhough his name, may have been placed upon the register withoutobjection, and that the writ of summons to the House of Lords must beissued before the disqualification attached.
WEERAMAXTR Y, J.—Petris v. David Pcrera2C7
It Avill be seen then that the question raised by Lord Stansgate was notwithout legal difficulty although the fact of his being entitled to thepeerage was plain and known to all. In that case therefore, as in thecase of Lady Sandhurst, we meet the situation which we meet in thepresent case, of the application of uncertain legal princijiles to a knownor notified state of facts, and despite the circumstance that the candidate’slegal contention was, to say the least, arguable, the Court treated thevotes given to the candidate whose qualification was in doubt, as votesthrown away.
This then being the state of the English law according to its latestexposition and a|jplication in that country, I do not see room for anydeparture therefrom in our law, based as it is on the same principles.Indeed it is significant to note that in Bristol South-East the Court having,after the elaborate discussion alreadj' referred to, found against LordStansgate in regard to his right to sit, and having saTisfied ifself tIiatnotice of the alleged disqualification had been given to the electors,proceeded without further question to declare that the votes cast forLord Stansgate were thrown away and that the other candidate was dulyelected. The Court exprcssl}' stated that it was bound by the decision inBeresford-Hope v. Lady Sandhurst and that it had no option but. to makethe declarations referred to.
On the basis of the law as examined by me this Court too Has no optionbut to make the declaration which is sought.
Some light is thrown on the matter under discussion by certain Irishdecisions to which I shall now refer. In the Tipperary case 1 a personconvicted of treason and felony contested a seat. This candidate hadbeen sentenced to 14 years’ transportation and was alleged to havebecome thereafter a naturalised American subject and to be an alien.There were strong observations in that case by Mr. Justice Lawson to theeffect that “ . . . we have decided in the case of Trench v. Nolan -acting on all the authorities, that votes given to a candidate who isdisqualified after notice of that disqualification had been given, arethrown away, and I must say if a case were wanted to show the soundnessand propriety of that decision it would be the present case; because ifsuch were not the law, persons who were disposed to set the law atdefiance might select candidate after candidate from a list of disqualifiedpersons, disqualified either by alienage or conviction for felony, and theproperly qualified candidate although in a minority, could not. beseated, but there should be a new election. Therefore according to thedecision in Trench v. Nolan the electors having had notice of the dis-qualification, the necessary result must follow in this which followed inthat case, namely that the properly qualified candidate should bedeclared to be duly elected. . . . Both on the authority of Trenchv. Nolan and of Drinkwater v. Deakin, when once we arrive at the
1 3 O'Malley and Hardcastle, p. 19.• Irish Reports 6 Common Law, 464.
268
WEERAMAXTRY, J.—Peiris v. David Pereru
conclusion that there were these two disqualifications and notice to theelectors, it necessarily follows that the other candidate must be declaredduly elected.” 1
In the Fermanagh and South Tyrone case 2 the petition was brought onthe ground that the candidate was incapable of being elected a memberof Parliament under the terms of the Forfeiture Act of 1S70 and the scatwas claimed by the unsuccessful candidate on the ground that votes castwith knowledge of the disqualification were votes thrown away and thatthe unsuccessful candidate was entitled to the scat. Lords JusticesBlack and Sheil of the High Court of Northern Ireland held that it wassufficient to prove only that the elector had notice of the fact of dis-qualification and that it teas not necessary to show that the elector was awareof the legal result which such disqualification- entailed. In that ease theCourt held that the disqualification was in an}'event a matter of notoriety,the. successful candidate being still under a ten year sentence fortreason-felony (see also the Irish case referred to in 1955 L. Jo 482). It is ofinterest to refer to a comment in the Law Journal on the Fermanagh case3where it is observed that the supporters of the disqualified candidate haddetermined to nominate the same candidate again and that he wouldpossibly be elected once more, so that the same issue may therefore ariseall over again ad infinitum with farcical results. This observationfocuses attention on the damage which M ould result to the processes ofParliamentary election were any other view of the law to be entertained.With special reference to the facts of the. present case there is nothing intheory to prevent the occurrence of the same situation, for the dictum ofWijoyewardcne, A.C.J. could repeatedly be invoked as the view of threeJudges which casts a doubt on the legal validity of the report of threeother Judges despite any decision of three Judges to the contrary.
The Irish cases serve to underline the considerations of public policyunderlying this rule and also to show the adoption by that system as wellof the principle that knowledge of the facts giving rise to the disqualifi-cation without the necessity for knowledge of the legal consequencesflowing from those facts, is all that is required for votes to be treated asthrown away, and for the scat to be awarded to the unsuccessfulcandidate.
I pass now to an examination of section So (1) (/) which sets out thecircumstances in which votes are to be struck off upon a scrutiny. Forthe reason stated by My Lord the Chief Justice, with which I respectfullyagree, the relief of claiming the seat for an unsuccessful candidate is notnecessarily sought through the means of a scrutiny and a scrutiny maywell be totally unnecessary, in cases such as the present, where the votessought to be struck out are not individual votes but a whole clas3 ofvotes. It is clear however that in drafting sectionS5 (1) (/) the draftsmanwas attempting to follow the English law in regard to votes which would
1 O’Malley and Hardcastle, p. 44.1 {1955) L. J. BO4.
* (19.55) L. J. 482.
WEERAMAXTRY, J.—Peiris r. David Pcrcra
200
be struck off. It is necessary therefore to examine section 85 (1) (/) ifonly for the reason that it. is based upon the English law as understoodby the draftsman and seems to reproduce accurately the English law onthe question of the votes which will be considered as having been thrownaway, where the seat is sought for the second candidate.
Section So (1) (/) may be analysed asdealing with five distinct cases ofvotes given for a disqualified candidate by a voter, namety—
(а)knowing that the candidate was disqualified ; or
(б)knowing the facts causing the disqualification ; or
after sufficient public notice of the disqualification ; or
when the disqualification was notorious ; or
when the facts causing the disqualification were notorious.
Certain circumstances become apparent upon this analysis, which are ofassistance in this matter.
It will be seen in the first place that the sub-section draws a distinctionbetween the disqualification and the facts causing the disqualification,for at two points within the sub-section the distinction is drawn betweenthe disqualification and the facts causing it. Applying to this phraseolog3'the facts of the present case, the fact causing the disqualification was thereport of the three Judges and the. publication thereof in the GovernmentGazette. The disqualification was the result of tlie application of thelaw contained in section S2D to these facts. All that is required, for thethrowing away of votes to ensue, is knowledge of the facts grounding thedisqualification without the necessity for a knowledge of the applicationof the law to those facts. Hence, if one were considering a case undersection S5^(l) (/) the fact that difficult or uncertain principles of law hadto be applied to the facts would be no ground for refusing to strike offa vote.
A second comment upon this section is that, apart from cases wherethere is actual knowledge, knowledge would appear to be presumed fromsufficient public notice or from notoriety. It follows therefore thateven where there is no notoriety of the facts, as where they are not manifestand apparent to all, the absence of such notoriety is made good bysufficient public notice and when the latter is given the case is elevatedto a level of parity with circumstances of notoriety such as those arisingfrom status.
Yet another circumstance which emerges from the section is that it- istotally lacking in any requirement of wilful perverseness on the part ofthe voters as a pre-requisite to votes being considered thrown away—aconclusion which once more accords with the conclusions I have reachedin regard to the English law on this matter.
Finally, this judgment would be incomplete without a reference to theonly other case decided in Ceylon which has considered the Englishdecisions relating to the award of a seat to an unsuccessful candidate.
270
WEERAM AN TRY, J.—Petris v. David Percra
This was the case of Cooray v. de Zoysa 1 where Akbar, J. analysed sectionS2 (I) (/) of the Ceylon (State Council Elections) Order-in-Council whichcorresponds to section So (1) (/) of the Parliamentary Elections Order-in-Council. In this case objection was taken to the election of a candidateon the ground that he enjoyed a contraet.made with the Principal of theCe3*lon University College for or on account of public service within themeaning of section 9 [d) of the Ceylon (State Council) Order-in-Council of1931. The petitioner also claimed the- sent under section 77 (d) of theCeylon (State Council Elections) Order-in-Council. It was held by Akbar,J. that the petitioner was bound to prove common knowledge on tlie-part of the voters of the fact of the contract with the Government andnot merely knowledge of the fact that the respondent was a lecturer atthe University College, and that the required knowledge was not proved.He however referred to Drinkualer v. Deakin and Beresford-IIope v. LadySandhurst as the leading English cases on the. subject and cited in extensothe dissent of Brett, J. in Drinkicater v. Deakin from the view expressedin Queen v. Mayor of Tewkesbury. Akbar, J. concentrated however onthe question whether the disqualification was based on a known incapacity,for in the case before him the petitioner had failed to prove commonknowledge on the part of the voters of the fact that the respondent had acontract with the Government. It was this fact alone from whichdisqualification resulted, and a mere knowledge of the fact that t-hcrespondent was a lecturer of the University College was insufficient.
It was not necessary therefore for Akbar, J. to give his mind to thespecific questions wo are now considering namely "whether perversenesswas required on the part of the voters, or whether knowledge was requiredof the legal consequences as distinct from the facts giving rise to theselegal consequences. He did however draw attention to the law as statedin Rogers according to which knowledge cither of the disqualification orof the facts creating tire* disqualification is stated to result, in the voterthrowing away his vote ; and he. referred also to the fact that ArticleS2 (1) (/) of the State Council Elections Ordcr-in-Council dealt with fivedifferent types of eases, as outlined b3* me in regard to section So (1) (/)of the Parliamentary Elections Ordcr-in-Council.
In the result then, in the only other matter in which our Courts reviewedthe principles governing the grant of a scat to an unsuccessful candidate,tire general principles applicable have been stated in the sense in whichI have set them out in this judgment, but no further guidance can bederived from it as there was no special consideration of the particularmatters which concern us here.
It is evident from the foregoing discussion that under the law as it nowstands this Court has no alternative but to allow this appeal and awardthe scat to tlie unsuccessful candidate. The weight of opinion on thepart of eminent text writers, the preponderance of earlier English autho-rity, the conclusivcncss of the most recent decisions, the identical law as
1 (1936) 41 X. L. It. 121.
WEERAMANTRY, J.—Fein's v. David Perera
271
applied in Ireland and an analysis of section 85 (1) (/) are all lines ofapproach converging towards this one result. Moreover this conclusionis fully in accord with the respect which must be shown to Parliamentand to the processes by which it is constituted.
The duty devolves in a special way upon the Courts of ensuring,through an insistence thereon in the matters that come before them, thatelection procedure be kept inviolate and its sanctity preserved ; and it istheir duty whenever possible, zealously to safeguard the sovereignty ofParliament and all that is incidental thereto. Essential to this result is theproper conduct of elections, and essential to the proper conduct of electionsis the requirement that only candidates qualified in law to be Members ofParliament should offer themselves to the electorate. Those Avhoalready labour under a disqualification which by law prevents them fromtaking their seat in Parliament go to the polls at their peril and thosewho vote for them with knowledge of the facts grounding such a dis-qualification rccord-t-heir~votes in vain. This is a principle now ingrainedin the law relating to elections and ingrained for the very good reasonthat the dignity and decorum which must attend the Parliamentaryprocess are at all costs to be preserved. A candidate labouring under adisqualification resulting from known facts may else, as was observed inthe Tipperary case, offer himself repeatedly for election to an electoratewhich accepts him again and again, only to be declared disqualified oneach occasion by the Courts. The Parliamentary process cannot thus bepermitted to be brought into disrepute or exposed to ridicule, nor can theCourts countenance the possibility, inherent in such a situation, of aconstituency being thus kept indefinitely without proper representationin Parliament at the will of persons inclined for reasons of their own toresort to such conduct. Such possibilities should not be permitted tomar the procedures essential to the proper constitution of Parliament;nor does a candidate so offering himself or a voter so exercising hisfranchise displa3r that respect properly due and owing to the sovereignlegislature.
Moreover, once a doubt cast upon the legal effect of known facts ispermitted to constitute a field of exemption to the principle that votesare thrown away, where does one drjhv the line between the degrees ofdoubt which will and will not produce this result ? Will the standard bywhich this is determined be purely objective or should it not be sub–jective, depending on the state of mind of the individual voter Whatmay raise a reasonable doubt in the mind of an unintelligent or uneducatedvoter may raise none at all in the mind of one of intelligence or education ;or, conversely, what seems unreasonable to an unintelligent oruneducated voter may well carry conviction to a mind more alert orcultivated. So also a doubt which seems unreasonable to a Court of lawmay well trouble the mind of an average voter, while that which leavesthe latter’s mind unruffled may well produce. serious agitation in t.he
272
Jayaratne v. Inspector of Police, Maharagama
mind of a Court. A Court conducting an investigation into this mattermay thus be obh'ged to pursue an interminable series of individualinquiries.
All these difficulties are stirred up by an abandonment of the principlewhich holds swajr in so many other spheres of the law, that ignorance oFthe law docs not excuse. There is no ground of precedent or principlewhich renders this maxim less applicable in this sphere of the law, thanin any other. We enter upon troubled waters indeed if we admit ofvarying standards of certainty and varying degrees of doubt in theapplication of so simple a principle and one which has through theexperience of ages earned so high a place among the maxims of thelaw.
It will thus be seen that the law leaves no course open to us but toconclude that votes cast for the disqualified candidate, cast as they werewith knowledge of the existing, certain and established facts on whichthat disqualification was based, must be regarded as thrown away ; andthat the seat must be awarded to the qualified candidate who has polledthe largest number of lawful votes.
1 agree therefore with my Lord the Chief Justice that this appealshould be allowed, and with the order as to costs which he hasproposed.
A-pjpeal allowed.