057-NLR-NLR-V-71-E.-S.-PEIRIS-and-another-Petitioners-and-W.P.-SAMARAWEERA-Respondent.pdf
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, Petrie v. Samaraweera
1967Present: G. P. A. Silva, J.
E. S. PEERIS and another, Petitioners, and W. P. SAMARAWEERA,
Respondent
Election Petition No. 1 of 1967—Welimada [Electoral District No. 126)
Election petition—Disqualification of candidate mho potted the largest number of votes—notoriety of such disqualification—Prayer for declaration that the candidate whopolled the second largest number of votes was duly elected—Ground or groundsrelied on must be specified—Votes given to a disqualified candidate—Whetherthey can be regarded as not given at all— Votes can be struck off only at a scrutiny—Ceylon (Constitution) Order in Council, s. 13 (3) (/)—Ceylon (ParliamentaryElections) Order in Council (Cap. 381), Rule 4 (1) (6) of Schedule III, ss. 80 (a)to (d), 85 (a) to (/), 86 (2).
The petitioners sought a declaration that the respondent’s election as aMember of Parliament was void on the ground that he was, by virtue of section13 (3) (/) of the Ceylon (Constitution) Order in <£ouncil, disqualified for election
SILVA, J.—Petris v. Samaratceero
251
because, during the period of Beven years immediately preceding the election,,he had completed the serving of a sentence of imprisonment of more than threemonths for an offence punishable for a term exceeding twelve months. Thefact of this disqualification could not be denied by the respondent in view of therosult of another election petition filed against him previously after the GeneralElection held in March, 1085. It was therefore inevitable that the presentelection petition too hod to succeed. The pot itioners, however, sought a furtherdeclaration, namely, that one Jamis Silva, who was one of the three candidatesat the election and who polled the second largest number of votes, was des-elected as a member of the Bouse of Representatives. It was contended ontheir behalf that a scrutiny of votes was not necossary because the fact of thedisqualification of the respondent was so notorious prior to the election thatevery vote cost in favour of the respondent must, nctording to the English lawapplicable in such a case under section 86 (2) of the Ceylon (ParliamentaryElections) Order in Council, be deemed to have been thrown away and notgiven at all.
Held, (i) that the prayer for the declaration that the candidate who polledthe second largest number of votes was duly elected could not be granted becausethe ground or grounds relied on to sustain the prayer were not specified in theelection petition-in compliance with the provisions of Rule 4 (1) (6) of the ThirdSchedule to the Ceylon (Parliamentary Elections) Order in Council.
(ii) that in our law, a declaration of a defeated candidate as being dulyelected can only be obtained from a court on the ground that he had a majorityof lawful votes; this result can be achieved only after a scrutiny at whichcertain votes cast in favour of the successful candidate have been struck off inone or more of the ways set out in (a) to (/) of section 85 of the ParliamentaryElections Order in Council. Such scrutiny is therefore imperative whenever therelief set out in section 80 (c) of.the Parliamentary Elections Order in Council isclaimed on the ground of voters having cast their votes for a candidate whosedisqualification was notorious.
ELECTION petition No. 1 of 1967—Welimada (Electoral DistrictNo. 126).
T. P. Rajapakse, with TT. George Perera, for the petitioners.
if. Izadeen Mohamed, with H. D. Thambiah, for the respondent.
H. L. <k Silva, Crown Counsel, for the Attorney-General, on notice.
Cur. adv. trull.
October 0, 1967. Silva, J.—
The petitioners in this case challenge the election of the respondent,Wemullawatte Percy Samaraweera, to the Welimada seat in the Houseof Representatives. The Laid election at which two other candidates.
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SILVA, J.—Peiris v. Samaraweera
Kanakka Hewage Jamis Silva and Ratnayake Punch ibanda, contestedthe respondent, took place on the 11th of February, 1967. consequent onthe respondent’s election as a member of the House of Repr . sentativesat the General Election held in March, 19G5 being declared void by anElection Court. The ground on which such declaration was made wasthat the respondent was, by virtue of Section 13 (3) of the Ceylon (Con*stitution) Order in Council (which I shall hereafter refer to as the Order),disqualified for election because, during the period of seven yearsimmediately preceding the election he had completed the serving of asentence of impr sonment of more than three months for an offencepunishable for a term exceeding twelve months. Despite this findingby an Election Court being affirmed by the Supreme Court on ajipeal onthe 5th November, 19G6, the respondent contested the consequent by-election held three months later although the serving of the sentencereferred to was completed on the 7th October, 1960, well within the sevenyears immediately preceding the said by-election The evidence ledby the petitioner to prove the fact of the conviction of the respondent,the offences in respect of which he was convicted and the dates ol' com-mitment to and release from prison were not in dispute. Nor was thelegal posilion that the conviction resulted in a disqualification of therespondent from being elected a member of the House of Representatives,in terms of Section 13 (3) (/) of the Order, seriously contested. Apartfrom the fubmission by the respondent’s counsel that the dissentingjudgment of Sirimane, J. in the case of Samaraweera v. J ayawardena1was the more correct view, no effort was made by counselto canvass this judgment. It being common ground therefore that therespondent in the instant case is the same person in respect of whom thatdecision was reached by the Supreme Court on appeal, as the period ofdisqualification contemplated by the Order-in-Council still continues torun against the respondent, the first allegation in the petition that therespondent was, at the time of the e’ection. a person disqualified forelection as a member of the House of Representatives must succeed.
Counsel for the petitioner informed this court at an early stage that hewas not pursuing the other grounds set out in the petition and it is notnecessary lor me to deal with them.
The issue that is contested very strongly by counsel on both sides isthat which relates to the prayer (6), namely, that it might be determinedthat Kananke Hewage Jamis Silva, the candidate who polled the secondlargest number of votes at the election, was duly elected as a member ofthe House of Representatives. Counsel for the respondent in the firstinstance raises the objection that on the grounds contained in the petitionas presented this prajrer does not ar se and that it is improper, irregularand cannot be considered. Rule 4 (1) (6) of the Th rd Schedule to theOrder provides that an election petition shall state inter alia the factsand grounds re’ied on to sustain the prayer. An examination of thepetition filed in this case shows that it does not state such grounds
1 (1966) 69 N. L. R 24l9
SILVA, J.—Peine v. Samaraweera
253
so far as the prayer (6) is concerned. There can conceivably be one ofWo grounds on which this prayer can be sustained by any petitioner.The first is that the candidate whose return as a member is askedfor had a majority of lawful votes and the second is that every single votecost in favour of a respondent must be deemed to have been cast away.The defences that would be open to th3 respondent to these two situationswould indeed be different. Among other things it is possible for anyrespondent in those circumstances to point out to court on a scrutinythat the candidate, whose return is sought on the ground of having alawful majority, also obtained some votes which were unlawful and thatthe number of votes he himself poled would be diminished thereby.If on the other hand the return of another cand.date is sought on theground that the fact of the disqua ification was so notorious that everysingle vote cast on behalf of the respondent must be deemed to have beenthrown away, the defence may well be that such disqualification was notso well-known in the electorate as to result in every single -vote being-considered as cast away. These defences are so different in character.The main reason for the requirement in Rule 4 (1) (b) is that a respondentshould have notice of the grounds for susta ning the prayer which wouldalways be against him in order that he may put forward and preparehis defences. If there :s no proper compliance with this provision therespondent is not obliged to ask for such grounds and assist the petitionerto present a proper petition duly complying with the rules. He isentitled to say that the prayer or any part of it, as in the instant case,cannot be sustained in the absence of proper grounds. The contentionof counf.ei for the respondent in this regard is therefore sound.
The second argument of counsel for the respondent is that the onlyground on which this prayer can succeed is that the said Jamis Silva hada majority of lawful votes and that the only manner in which the questionwhether a particular candidate had a majority of lawful votes can bedetermined is by means of a scrut ny and that the petitioner should in acase of this nature claim tliis relief. His further argument is that, nothaving claimed the relief of a scrutiny, the petitioner cannot succeed inhi prayer (6) which can only be ach'oved through a scrutiny of the ballotpapers. Having regard to the provisions of Sections 80 (d) and 85 of theOrder, it appears to me that there is force in this contention.
The answer of counsel for the petitioner is that his prayer (6) is notg'-ounded on the existence of a majority of lawful votes. His contention 'is that the fact of the di qualification of the respondent being so notorious,every vote cast in favour of the respondent must be deemed to havebeen cast away. He therefore submits that the question of a scrutinyof those votes does not arise and that it is open to the court to decla e thecandidate who polled the next highest number of votes as being dulyelected. He relies for his argument on English Law and cites Halsbury’sLaws of England (3rd Edition) Volume 14 at page 305 where it is stated :—“ Votes given for a candidate who is disqualified may in certain circum-stances be regarded as not given at all or thrown away and for so deciding•a scrutiny is not necessary ”. Counsel’s contention is that this is c
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SILVA, J.—Peiris v. Samaraweera
situation which is not provided for in our law and that the procedureand practice followed in England on the eame matter can be followed byour courts in terms of Section 86 of the Order.
I shall now proceed to examine these two arguments in relation tothe Order-in-Council. For this purpose it is necessary to consider theprovisions of Sections 80 and 85 of the Order together as the later sectiondeals specially and only with one aspect of relief referred to in the earliersection, namely, the scrutiny referred to in Section 80 (d). The conten-tion of counsel for the petitioner is that he is relying not on Section 80 (d)but on Section 80 (c) for the declaration he seeks on the ground hat thedisqualification of the respondent is a disqualification ab initio, that is tosay, a disqualification that existed pr or to the elect on, which disqualifi-cation was so notorious that every vote for him must be considered ascast away. In his submission, Section 80 (c) is applicable to variousinstances when a court can declare as duly elected a candidate otherthan the one who was declared by the returning officer to have beenelected after the counting of votes while Section 80 (d) deals with only thatspecies of cases where a declaration of court is sought for a candidate onthe ground that he had a majority of lawful votes and further that thequestion of a scrutiny arises only in such cases. If Section 80 is con-sidered in isolation this construction is one which appears reasonable.Crown Counsel, however, for whose assistance in this matter I am deeplyobliged, has invited me to consider the provisions of Section 85 which hasan important bearing on this aspect. When one considers Section 80along with Section 85 with which, in my view, it is inextricably nter-woven, the construction contended for by counsel for the petitioner wouldnot seem justified. If the argument of counsel is correct and Section80 (c) refers to a declaration of a defeated candidate as du'y elected on. theground that, consequent on the notoriety of the d^qualification, all thevotes cast for the -winning candidate are considered to have been castaway, the question of a scrutiny will not arise at al’. This is indeed thereasoning behind the principle applicable in England as revealed in thecitation from Hasbury referred to earlier. An examination of Section85 (/) however shows that any votes cast for a candidate can be struck offonly after a scrutiny even if the ground for striking them off is that thedisqualification or the facts causing it were notorious. To my mind thisis a definite departure of our law from the law in England relative to thismatter where a scrutiny is inappropriate in similar circumstances. Itfo lows as a necessary corollary that the concept of votes given to a dis-qualified candidate being considered as cast away or not given at all iBnot recognised in our law. In that view of the matter which I am in-clined to take, I would not consider the situation arising in 1 h’s case as aquestion of procedure or practice which is not provided for by the Orderand in respect of which we can have recourse to the procedure or practicefollowed in England in terms of the provisions of Section 86 (2). In theresult I hold that the petitioners can obtain their prayer (b) only throughthe procedure of a scrutiny which shou d also h^ye formed part of their
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25S
prayer. These reasons also compel me to give to the words of Section80 (d) a meaning different from the one which I was invited by the counselfor the petitioners to consider and which at first sight did seem reasonable.I think these words are partly in amplification of the circumstances inwhich a declaration under Section 80 (e) can be asked by way of relief,namely that the candidate on whose behalf the declaration is sought hada majority of lawful votes, and partly an expression of the necessity toclaim the relief of a scrutiny in such circumstances. There is a furtherconsideration that persuades me to this view. This section, as confirmedby the side note, prescribes the relief that may be claimed by an electionpetition. It is to be observed however that, as a relief, (a), (6), and (c)on the one hand are different in character from (d). While (a), (6) and (c)each consists of a definite relief by itself either in having a person whoshould not have been elected unseated or securing a seat for an unsuccess-ful candidate, the relief set out in (d), namely a scrutiny, does not by itselfafford any actual re* f but only serves as a means to that end, that endbeing the relief contemplated in (c) alone ; for it has no relevancy to thereliefs contemplated in (a) or (6). I am also fortified in this view, eventhough in a very small measure, by the position of (d) which immediatelyfollows the relief contemplated in (c), thus indicating a possibleexplanatory relation between the two. When I consider the two Sections80 and 85 of the Order in association, therefore, for the purpose of decidingthe present question, I cannot escape the conclusion that in our law adeclaration of a defeated candidate as being duly elected can only beobtained from a court on the ground that he had a majority of lawful votesand that this resu’t can be achieved only after a scrutiny at which certainvotes cast in favour of the successful candidate may be struck off in oneor more of the wayB set out in (a) to (/) of Section 85. I am therefore ofthe view that, far from a failure to provide in our law for the situationwhich seems to obtain in England, of votes cast in favour of a disqualifiedcandidate having to be regarded as thrown away or not given at all whenthe disqualification is so notorious, a provision has been included on pur-pose requiring as a sine qua non a scrutiny whenever the relief set out inSection 80 (c) is claimed on the ground of voters having cast their votesfor a disqualified candidate whose disqualification or the facts causingit were notorious.
For the above reasons, both the objections of counsel for the respondentin regard to the prayer (6) are entitled to succeed.
In accordance with the findings I have reached I declare the electionof the respondent WemulJawatte Percy Samaraweera to the Welimada8eat void. The prayer for a declaration that Kanakke Hewage JamisSilva was duly elected to the Welimada seat is refused. The petitionersare entitled to their taxed co.vts.
Election declared void.