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
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.
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
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.
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.
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.
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
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.
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
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.
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
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
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.