042-NLR-NLR-V-33-DISA-et-al.-v.-AMARASURIYA.pdf
Dias o. Amarasuriya
169
1931Present: Drleberg J.In the Matter of the Udvgama Division Electorate.
DIAS et ah v. AM ARA SUB1YA.
Electionpetition—Claimforscrutiny—Personation—Applicationto • inspect
documents—Tenderedballot,papers—Ceylon(State Council Elections)
Order-in-Council, Article 45 (10).
Where in anelection petition,in whicha scrutiny wasclaimedonthe
groundthat anunsuccessful candidate hada majorityof lawfulvotes,
the petitionerslimitedtheir* application tovotes, obtainedbypersonation
and askedthatthese be struckoff andthat the tenderedvotesbe added
to the poll,—
Held, that the petitioners were entitled to have the votes declared voidby reason of personation excluded, and the tendered votes added, in caseswhere tendered votes have been submitted.
Heldfurther,thatthe petitioners wereentitledto inspectand , have
copies ofthefollowing documents:—(1)tendered voters*list,(2)the
markedregister,(3) the declarations madeby voterswho weregiven
tenderedballotpapers;but not the tendered ballotpapersnorthe ballot
papers orthecounterfoils ofthe ballot papers, correspondingtothe
tenderedballotpapers,before a vote isdeclaredvoidonthe ground
of personation.
T
HIS was an election petition in which, a scrutiny was claimed onthe ground that the unsuccessful candidate had a majority of
lawful votes. The petitioners moved that they be allowed to inspectand take copies of—
(a*) The tendered voters’ list.
The tendered ballot papers in favour of Mr. Neil Hewavitameand the respondent Mr. H. W. Amarasuriya. .
The marked register.
Ballot papers and counterfoils corresponding to the tenderedballot papers that were delivered under clause 38, sub-clause (2), of the Order-in-Council and in respect of whichtendered ballot papers were subsequently delivered underclause 42.
Declaration made by the voters who were given tendered ballotpapers. 11
11. L. Pereira, K.G. (with him E. G. P. Jayetillehe), for petitioner.—Section 45 (10) expressly states that the Judge may make an order thatany ballot paper or document may be inspected if necessary to maintainan election petition.
Section 83 states that the English practice applies only to cases whichare not expressly provided for in the Order-in -Council.
Hayley, K.G. (with him B. F. de Silva and Gooray), for respond-ent.—Section 45 (10) states that the Court shall not allow the inspectionof a ballot paper or document unless it is proved that it is necessaryto maintain an election petition.
170
DRIEBERG J.—Diet t. AmaTasuriye.
In exercising this discretion the Court must be guided by the Englishpractice which is contained in the Ballo.t Act, 1872, rules 41 and 42.
The ballot papers should no.t be given for inspection unless it has beenifirst proved that there was personation (Rogers 11., 243 (1918 ed.) Rogers-//., 110 (1918 ed.); Stowe v. Jolliffe *).
Pulle, C.G., for Returning Officer.—The principle of the secrecy of the:ballot must be maintained on grounds of public policy.
R, L. Pereira, K.G., in reply.—There is no secrecy about a tenderedballot paper as it has the name of the voter on the face of it.
The tendered ballot papers are available in England (Rogers II. r
P. ui).
August 7, 1981. Drieberg J.—
This is an election petition in which the petitioners claim a scrutinyon the ground that an unsuccessful candidate, Mr. Hewavitarne, had amajority of lawful votes. The petitioners limited their, application to*votes obtained by personation and asked that these be struck off andthat the tendered votes be added to the poll. Mr. Hayley contendedthat the petitioners should be restricted to those cases of personationof voters in which tendered votes were subsequently submitted. I donot think that the application should be limited to such cases. Thepetitioners are entitled to have the votes declared void by reason ofpersonation excluded, and tendered votes added in cases where tenderedvotes have been submitted.
The proctor for the petitioners moved that he be allowed to inspectand take copies of—
The tendered voters' list.
The tendered ballot papers in favour of Mr. Neil Hewavitarne
and the respondent, Mr. Henry Woodward Amarasuriya.
Marked register.
Ballot papers and counterfoils corresponding to the tendered*.
ballot papers that were delivered under clause 38, sub-clause (2),of the Order-in-Council and in respect of which tendered ballotpapers were subsequently delivered under clause 42.
Declarations made by the voters who were given “ tendered ballot
papers ”.
Mr. Pereira agreed to limit his application under (b) to the tenderedballot papers in favour of Mr. Hewavitarne.
All ballot papers and other documents relating to the election are inthe custody of the Returning Officer, in this case .the Government Agentof the Southern Province, and I directed that he should have notice ofthis application.
The provisions of the Ceylon (State Council Elections) Order-in-CouncilK1931, on the question of inspection of such documents are simpler thanthose of the Ballot Act, 1872, rules 40, 41, and 42 of the first schedule of:which deal with this subject.
1 43 L. J. C. P. 173.
DBIEBERG J.—Dias c. Amarasuriya.
171
Article 45 (10) provides that a Judge of the Supreme Court may allow'inspection of any ballot paper or document relating to an election butthat he shall not allow it unless satisfied that such inspection is requiredior the purpose of instituting or maintaining an election petition.
No distinction is drawn between the various kinds of documents inthe possession of the Returning Officer, but in the exercise of the discretiongiven under this article I cannot do otherwise than follow the principlesof the law in England that care should be taken that the mode in whichany particular voter has voted shall not be discovered until he has beenproved to have voted and his vote has been declared by a competent |Court to be invalid.
Mr. Hayley objected to inspection of the tendered ballot papersand the ballot papers and the counterfoils corresponding to the tenderedballot papers, and the marked register. Mr. Pulle, for the ReturningOfficer, took the same position except as regards the marked register, ofwhich he was prepared to allow inspection.
There is no reason why the petitioners should not be allowed inspectionof the marked register. It will only enable them to ascertain whatvotes were recorded, and this they are entitled to know. Inspection ofthe marked register is allowed in England (Stowe v. Jolliffe l).
Nor can there be any objection to the petitioners being allowed inspec-tion of the declarations made by those who were given tendered ballotpapers.
No objection is raised regarding the list of tendered votes.
There only remains the question of the tendered ballot papers in favour.of Mr. Hewavitarne and the ballot papers and counterfoils correspondingto these.
As regards these ballot papers and counterfoils it is clear that thepetitioners are not entitled to inspect them; with the aid of the counter-foils it can be known for whom a person voted. Mr. Pereira’s reason•for wanting inspection of these is this:There were four candidates at
this election, the other two being Mr. Sirimane and Mr. Abeyewickreme.He says that where the petitioners have evidence that a voter has beenpersonated there would be no purpose in their making it the basis of a-charge unless the personated vote was given to the respondent; if-given to one of the other two candidates it would not affect the positionbetween Mr. Hewavitarne and the respondent. He says that unlessthe petitioners can select the personated votes given for the respondentmuch time will be expended unnecessarily in getting a declaration thatcertain votes are void on the ground of personation which may later be•found to have been given for one of the other two candidates.
But this cannot be avoided; the rule of the secrecy of the ballot isstrict, and not even the Election Judge is entitled to know until a vote,bas been declared invalid for whom it was given. Grove J. in Stowe v.Jolliffe (Rogers, Volume II., page 203), dealing with a'case of two candi-dates. says that it is of the utmost importance for the objector beforeobjecting to a vote to make as certain as possible that it was not given1 {1874) L. R. 9 C. P. 446 ; 43 L. J. C. P. 17$.
172
Chelliah v. Kadiravelu.
for himself and he refers to cases where the objectors have procured therejection of votes Which subsequently were found to have been given tothemselves.
As regards the tendered ballot papers in favour of Mr. Hewavitarneit is said that the requirements of secrecy are not the same as in ordinaryballot papers for the reason that in the case ol the former the name andnumber of the voter is entered on them by the Presiding Officer. Where,however, there has been personation, knowledge of whom the tenderedvote has been given to would suggest the inference in most cases thatthe vote originally given was not given to the same candidate.
But in any case the petitioners do not need these at this stage for" maintaining " the petition. They will only need these when theyhave a vote declared void, and not until then, in which case if there is agood tendered vote corresponding to it, they can have it added toMr. Hewavitarne's votes. For- whom a tendered vote is given is not anabsolute secret, for it is known to the Presiding Officer and this cannotbe avoided, but that is no reason why the information should be givento others unless it is necessary for the purposes of the election petitionand this, it is not at this stage.
I allow the petitioner's motion of July 20 last for inspection andcopies of—
The tendered voters' list.
The marked register.
,(3) The declaration made by voters who were given tendered ballotpapers.
I make no order regarding costs as between the petitioners and therespondent; it will be dealt with by the Judge who hears this petition.
The petitioners will pay the costs of the Returning Officer.