CA General Secretary of the United National Party v. The Commissioner
of Elections and Others57
GENERAL SECRETARY OF THE UNITED NATIONAL PARTY
v.THE COMMISSIONER OF ELECTIONS AND OTHERS
COURT OF APPEALRANARAJA, J.
CA NO. 259/97JULY 08, 1997
Writs of Certiorari and Mandamus – Quashing election and holding fresh electionsfor Negombo Municipal Council – Local Authorities Elections Ordinance S. 69 -Failure of election officers to do their statutory duty affecting rights of petitioner
Burden of proof- Evidence Ordinance s. 114- Grounds for setting aside election
Conduct of the election.
At the election held on 21.3.97 the Peoples Alliance (P.A.) secured 23,456 votesand the United National Party (U.N.P.) 22,922. Thus the P.A. was entitled to return12 (including two bonus seats) and the U.N.P. 10 members.
As provided by the Local Authorities Elections Ordinance the Commissionernominates a Public Officer as Returning Officer and, (as are necessary), AssistantReturning Officers (s. 27). The Returning Officers take steps to conduct theelections in the manner provided by the Ordinance. The Presiding Officer hasto keep order in the polling station by regulating the number of voters to be admittedat a time and excluding all others except the candidates, polling agents, policeofficers on duty and others officially employed at the polling station (section 50(3)). The Presiding Officer must also see that no person commits an offence byinterfering with the voters or the officers from carrying out their lawful functions.Any person who misconducts himself in the polling station can be removed bya police officer on the orders of the Presiding Officer.
The acts alleged to prove failure to conduct the election in accordance with theprovisions of the Ordinance were –
A group of P.A. supporters led by the 4th respondent AnandaMunasinghe entered polling station No. 13 at St. Peter’s Madya Maha Vidyalaya,threatened the staff and U.N.P. polling agents, took the ballot paper book markedballots in favour of the P.A. punched them and inserted them in the ballot box.
A large number of P.A. supporters forcibly entered polling stationNo. 17, St. Joseph's Mixed School took a ballot paper book from the custodyof an Election Officer, marked the ballots in favour of the P.A. and stuffedapproximately 150 ballot papers in the ballot box.
, (d), (f), (g), (j) alleged acts similar to (a) and (b) above.
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(e) All polling agents of the U.N.P. at polling station Nos. 28. 29, and30 were chased away by the P.A.
(h) A large number of P.A. supporters entered polling station No. 39.Ethukala Sinhala Mixed School, took two ballot paper books and punching machinesand ran away.
(/) Similar to (e) above.
(k) When ballot boxes for the polling stations Nos. 13. 17, 33, 39, 41.42 and 44 were opened, there were increases in the ballots contained thereinwhen compared to the figures certified by the senior Presiding Officers. A^a resultof reports submitted by the S.P.O's 208 ballots were taken out of the ballot boxesfrom polling stations 13, 17 and 33. There were 162 votes in excess of the numbercast at polling stations 39, 41, 42 and 44.
In view of the above alleged acts, the conduct of the said election is illegaland a nullity and of no legal effect.
Held:
If the petitioners are able to establish that the Elections Officers failed toperform their statutory duty and as a result their rights were affected, in the absenceof any other remedy provided by the Ordinance, they should be entitled to havethe result of the election quashed by way of Certiorari.
The burden of proof was on the petitioner to prove that the Election Officerswho conducted the election omitted or failed to comply with the provisions of theOrdinance in the proper manner or at the proper time.
There is no justification for regarding the motive of an elector or any matterwhich influences that motive as being part of the conduct of the poll.
(a) Section 69 has to be narrowly construed to cover only instances wherethe public officers conducting the election fail to comply with the provisions ofthe Ordinance.
Acts of general bribery, general intimidation or other misconduct orother circumstances whether similar to those enumerated or not, which influencethe motive of voters form no part of the conduct of the elections.
The Legislature has deliberately refrained from adopting the provisionsof the Presidential Elections Act (section 91 (a) ), Parliamentary Elections Act(section 92 (1) (a) ) and Provincial Councils Election Act (section 92 (1) (a) )in the Local Authorities Ordinance.
To succeed in an application the petitioner must prove, if not beyondreasonable doubt, at least to a high degree of probability the three limbs of section69 namely –
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CA General Secretary of the United National Party v. The Commissioner
of Elections and Others
that the Election Officers failed to comply with the provisions of theOrdinance.
that the elections were not conducted in accordance with the principleslaid down in these provisions and
that the result of the election was thereby affected.
(0) that the non-compliance was of such degree and magnitude that itcould reasonably be said that as a result of such non-compliance the electoratehad not been given a fair opportunity of electing the candidate of its choice.
None of the alleged unlawful acts was committed by the Election Officers.On the other hand those officers have thwarted any attempts by the alleged P.A.supporters to falsify ballots into the ballot boxes by invalidating these votes atthe count. The incidents took place over a short period of time leaving the officialsno time to call for extra protection.
Cases referred to:
Martin Perera v. Madadombe 73 NLR 25. 28.
Rex v. Electricity Commissioners ex p. London Electricity Joint CommitteeCo. (1920) Ltd. (1924) 1 KB 171.
Premasinghe v. Bandara 69 NLR 155.
Pilapitiya v. Chandrasiri and Others (1978 – 79 – 80) 1 Sri LR 361.
Rajapaksa v. Gunasekera (1984) 2 Sri LR 1.
De Silva v. Ivan Appuhamy (1993) 2 Sri LR 401.
Walker Sons & Co. (UK) Ltd. v. Gunatilake and Others (1978 – 79 – 80)
1 Sri LR 231.
Re Kensington North Parliamentary Election (1960) 2 All ER 150.
Morgan v. Simpson (1974) 3 All ER 722, 728.
Grill v. Read and Holmes (1874) 2 O' M & H 77.
Woodward v. Sarsons (1875) LR 10 CP 733.
Medhursh v. Lough and Gasquet (1901) 171 LR 210.
Gunn v. Sharpe (1974) 2 All ER 1058.
Munasinghe v. Corea 55 NLR 265.
APPLICATION for writs of certiorari and mandamus.
K. N. Choksy P.C. with D. H. N. Jayamaha and Ronald Perera for petitioner.S. Sri Skandarajah S.S.C. for 1st. 2nd and 28th respondents.
Asoka Gunasekera for 6th respondent.
Cur. adv. vult.
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July 22, 1997
DR. RANARAJA, J.
The Facts
The petitioner is the General Secretary of the United National Party.He has filed this application praying inter alia, for (a) a Writ of Certiorariquashing the declaration of the final result of the election of Mayor,Deputy Mayor and members to the Negombo Municipal Council, heldon 21.3.97, (b) a Writ of Mandamus directing the 1st respondentCommissioner of Elections and the 2nd respondent Returning Officer,to hold an election to the Negombo Municipal Council, in duecompliance with the provisions of the Local Authorities ElectionsOrdinance.
At the said Election, the People's Alliance received 23,456 votes,the United National Party 22,922, the Nava Sama Samaja Party 1,201and the Janatha Vimukthi Peramuna 638 votes, respectively.Accordingly the P.A. was entitled to return 12 members, including thetwo bonus seats, and the U.N.P. 10 members.
Conduct of the Election
The conduct of a Local Authorities Election is a statutory process.In that it has to be held in the manner provided by the Local AuthoritiesElections Ordinance (section 24). The Commissioner has to nominatea public officer as Returning Officer and a number of other publicofficers as Assistant Returning Officers as are necessary to exercise,perform or discharge the powers, duties and functions conferred orimposed on, or assigned to them (section 27). The Returning Officersthemselves are required to conduct a contested election in accord-ance with the provisions of the Ordinance, (section 37 (3) (a) ). TheReturning Officers appoint Presiding Officers to preside at each pollingstation in his electoral area, (section 40 (1) ). The Returning Officershave to take steps to ensure that the elections are conductedeffectually in the manner provided by the Ordinance, (section 44 (e)).It is the duty of the Presiding Officer to keep order in the polling station'by regulating the number of voters to be admitted at a time, andexcluding all others except the candidates, polling agents, Policeofficers on duty and others officially employed at the polling station.
CA General Secretary of the United National Party v. The Commissioner
of Elections and Others (Dr. Ranaraja, J.)61
(section 50 (3) ). The Presiding Officer must also see that no personcommits an offence by interfering with the voters or the officers fromcarrying out their lawful functions. Any person who misconducts himselfin the polling station can be removed by a Police officer on the ordersof the Presiding Officer. Every person who contravenes theprovisions of section 76 or 78 shall be guilty of an offence andon conviction after summary trial before a Magistrate, be liable toa fine not exceeding five hundred rupees or to imprisonment of eitherdescription for any term not exceeding six months, or both such fineand such imprisonment; in addition to being disqualified for a periodof five years reckoned from the date of conviction from beingelected or from sitting or voting as a member of any LocalAuthority, (section 83).
Alleged Acts Constituting a failure to conduct the election inaccordance with the provisions of the Ordinance.
It is alleged by the petitioner that:
A group of P.A supporters, led by the 4th respondent, AnandaMunasinghe, entered polling station No. 13 at St. Peter's MadyaMaha Vidyalaya, threatened the election staff and U.N.P pollingagents, took the ballot paper book, marked ballots in favour ofthe P.A, punched them and inserted them in the ballot box.
(£>) A large number of P.A supporters forcibly entered polling stationNo. 17, St. Joseph's Mixed School, took a ballot paper book fromthe custody of an Election Officer, marked the ballots in favourof the P.A and stuffed approximately 150 ballot papers in theballot box.
A group of P.A supporters, led by the 4th respondent, forciblyentered polling station No. 18, Harischandra Maha Vidyalaya,took ballot paper books from the Elections Officer, marked theballot papers in favour of the P.A, punched them and insertedthem in the ballot box. They had also threatened the electionsofficers for stopping female members of the crowd attemptingto impersonate other voters.
(cty A group of P.A supporters, led by P.A candidate Milton Appuhamy,entered polling station No. 26, Bolawalana Maha Vidyalaya, Hall
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No. 1, forcibly took books of ballot papers, marked them in favourof the P.A and stuffed them in the ballot box.
(e) All polling agents of the U.N.P at polling stations Nos. 28, 29and 30 at St. Anne's Maha Vidyalaya, Halls Nos. 1, 2 and 3respectively, were chased away by P.A supporters.
(/) A large number of P.A supporters, led by the 4th respondent,forcibly entered the polling station No. 33 at Tamil Roman CatholicSchool, took ballot papers from the Elections Officers, markedthe ballots for the P.A and put them in the ballot box. The personsaccompanying the 4th respondent, impersonated other voters andcast 12 votes.
A large number of supporters of the P.A, led by the 4threspondent, forcibly entered polling station No. 37, DalupothaMethodist Junior School, Hall No. 2, took several ballot paperbooks, marked 33 ballots for the P.A and stuffed in the ballotbox.
A large number of P.A supporters entered polling station No. 39,Ethukala Sinhala Mixed School, took two ballot paper books andpunching machines and ran away.
(/) A large crowd of P.A supporters entered polling station No. 41at Daluwakotuwa St. Anne's Balika Vidyalaya, Hall No. 2, chasedaway the U.N.P polling agents and the elections officials.
(/) A large number of P.A supporters, led by the 4th respondent,forcibly entered polling station No. 42, Daluwakotuwa AnthonyMaha Vidyalaya, took several ballot paper books, marked themfor the P.A and stuffed in the ballot box. One such ballot paperallegedly picked up by one Jeewananda has been producedmarked Y1.
(k) When ballot boxes for the polling stations Nos. 13, 17, 33, 39,41, 42 and 44 were opened, there were increases in the ballotscontained therein when compared to the figures certified by theSenior Presiding Officers. As a result of reports submitted by theS.P.Os, 208 ballots were taken out of the ballot boxes from pollingstations Nos. 13, 17 and 33. There were 162 votes in excessof the number cast at polling stations 39, 41, 42 and 44.
CA General Secretary of the United National Party v. The Commissioner
of Elections and Others (Dr. Ranaraja, J.)63
The Chief Post Master, Negombo, had reported to the Policethat an armed gang had entered the post office and removed572 poll cards on 20.3.97.
It is submitted that as a result of the aforesaid alleged acts, theconduct of the said election is illegal and a nullity and of no legaleffect and the purported result thereof liable to be quashed inpursuance of the provisions of section 69 of the Local AuthoritiesElections Ordinance.
Section 69 of the Local Authorities Elections Ordinance
Section 69 provides:
“No election shall be invalid by reason of any failure to complywith the provisions of this Ordinance relating to elections if itappears that the election was conducted in accordance with theprinciples laid down in such provisions, and that such failure didnot affect the result of the election."
Chief Justice H. N. G. Fernando, analysing this section in MartinPerera v. Madadombet’> stated:
"Although section 69 does not positively declare that an electionwill be invalid for any specified reason, I can assume for the presentpurpose, that such a declaration is implied in this section; on thisassumption the declaration thus implied may properly be statedthus:
"If there is in the case of any election a failure to comply withany provisions of this Ordinance relating to elections,and
If it appears that the election was not conducted in accordancewith the principles laid down in such provisions and if it appearsthat thereby the result of the elelction was affected, the electionshall be invalid".
His Lordship proceeded to state some of the principles underlyingsections 24 to 68 of the Ordinance, following which, he observed thatwhere it is clear to a court that a particular election has not beenconducted in accordance with one or other of the principles referredto, and if it further appears that the result of the election was affected
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in consequence, the Writ of Quo Warranto may issue on the groundthat the member elected at the election was not duly elected.
Is a Writ of Certiorari available to quash the result of the Election?
It was argued by learned Senior State Counsel on the formula setout by Atkin, L.J. in Rex v. Electricity Commissioners, ex P. LondonElectricity Joint Committee Co., (1920) Ltd. (2>, that the petitioners hadno right to a Writ of Certiorari. The formula is stated thus:
"Wherever any body of persons having legal authority todetermine questions affecting the rights of subjects, and havingthe duty to act judicially, act in excess of their legal authority,they are subject to the controlling jurisdiction of the King's BenchDivision exercised in these writs".
It was argued that the functions of the elections officers are purelyministerial and therefore not amenable to a Writ of Certiorari. The lawhas developed since the decision in Electricity Commissioners (supra).The Primary purpose of Certiorari in modern administrative law is toquash an ultra vires decision. That is, where a public body acts ina way that is not permitted, or exceeds the powers that the Courtsrecognize the body as possessing, whatever the source of the power.The effect of Certiorari is to make it clear that the statutory or otherpublic powers have been exercised unlawfully, and consequently todeprive the public body's act of any legal basis. – Clive Lewis – JudicialRemedies in Public Law, p. 145. When an order is quashed, it is thelegality of the order itself, and not the decision to make it, with whichthe law is concerned. – Wade & Forsyth – Administrative Law, 7thEd. p. 634. The modern function of Certiorari is to provide an ap-propriate form of relief to a successful applicant; the task of settingthe boundary of the Court's public law power of review is now determinedby the notion of the need for judicial supervision of public functions.De Smith, Woolf and Jowell – Judicial Review of Administrative Action,5th Ed. p. 693.
As Chief Justice Fernando, observed in Martin Perera (Supra)"The first condition in the declaration to be implied in section 69 isthat there must be a failure to comply with some provision of theOrdinance. This expression is appropriate to a case where a public
CA General Secretary of the United National Party v. The Commissioner
of Elections and Others (Dr. Ranaraja, J.)65
officer does not perform an act or duty which some provisionof the Ordinance requires him to perform, because if so, the officerclearly fails to comply with that provision".
It is clear that if the petitioners are able to establish that theelections officers failed to perform their statutory duties and as a resulttheir rights were affected, in the absence of any other remedy providedby the Ordinance, they should be entitled to have the result of theelection quashed by way of certiorari.
The Burden of Proof
Analysing the expression "failure to comply", His Lordship in MartinPerera (Supra), expressed the view that there is no statute in whichthe expression is used otherwise than for the purpose of referringto a case where a person has omitted to do some act required bylaw or has not done such an act in the proper manner or at the propertime.
In this context it is relevant to consider section 114 of the EvidenceOrdinance, which provides that the "Court may presume the existenceof any fact which it thinks likely to have happened, regard being hadto the common course of natural events, human conduct and publicand private business in their relation to the facts of the particular case.The court may presume that judicial and official acts have beenregularly performed".
When there is general evidence of acts having been legally andregularly done, Courts tend to dispense with proof of circumstances,strictly speaking essential to the validity of those acts, and by whichthey were probably accompanied in most cases, although in othersthe assumption rests solely on grounds of public policy. -Coomaraswamy. The Law of Evidence Vol. 2, Bk 1, p. 407.
The burden was on the petitioners to prove that the ElectionsOfficers who conducted the election omitted or failed to comply withthe provisions of the Ordinance in the proper manner or at the propertime.
Although the petitioner has nowhere alleged direct complicity ofthe elections officers in the alleged unlawful acts committed by the
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P.A supporters, it was argued, that the failure on the part of theelections officers at the relevant polling stations to take meaningfulsteps to prevent such unlawful acts being committed, constituted non-compliance with the provisions of the Ordinance.
The 1st respondent, Commissioner of Elections has filed affidavit,stating what action was taken by him and the respective presidingofficers, who presided at the affected polling stations, following theincidents referred to that allegedly took place. The 1st respondent hasaverred in reply that:
A gang of persons had arrived at polling station No. 13 at about3.40 p.m. forcibly taken ballot papers bearing numbers 21436to 21450 and 21455 to 21500, which had been marked andstuffed into the ballot boxes. The situation had returned to normalby 3.50 p.m. and the poll continued with 12 more voters castingtheir vote. On the report of the Presiding Officer, the stuffed voteswere correctly identified and invalidated at the count.
A gang of about 15 to 20 persons had entered polling stationNo. 17, forcibly taken ballot papers bearing numbers 026585 to026600 and 026801 to 026808, marked them and stuffed theminto the ballot box. On the report of the Senior Presiding Officer,the stuffed votes were identified and invalidated at the count.The allegation of the petitioner that voters who came to vote afterthe said incident were not given ballot papers, as there was noneavailable, has been denied.
About 15 persons had entered polling station No. 18 at about3 p.m., forcibly removed ballot papers Nos. 027501 to 027550and 027451 to 027500, marked and stuffed them into the ballotbox. These were removed from the count on the report of theSenior Presiding Officer.
It is denied that any incidents as alleged by the petitioner tookplace at polling stations Nos. 28, 29 and 30.
An unknown gang of persons had entered polling station No. 33,forcibly taken ballot papers bearing Nos. 050151 to 050300,marked and stuffed them into the ballot box, which were
CA General Secretary of the United National Party v. The Commissioner
of Elections and Others (Dr. Ranaraja, J.)67
subsequently invalidated at the count on the report of the SeniorPresiding Officer.
The Senior Presiding Officer has reported that an unknown gangof persons had entered polling station No. 39 and removed twoballot paper books and a punching machine.
During a confrontation that took place between U.N.P and P.Asupporters at polling station No. 41, ballot papers bearingNos. 63682 to 63700 were misplaced. The S.P.O. has not reportedany stuffing of ballot boxes.
(/) An unknown gang of persons had at about 1.45 p.m., enteredpolling station No. 42, forcibly removed ballot papers bearingNos. 065626 to 065650 and 065598 to 065600 marked them andstuffed into the ballot boxes. However they were identified andinvalidated at the count on the report of the S.P.O.
The averments in the affidavit of the 1st respondent have beencorroborated by copies of reports of the relevant S.P.O's and theaverments in the affidavits of the respective counting officers. Thepetitioner has not filed counter affidavit challenging the averments ofthe elections officers.
Thus, what court has before it are the affidavits filed by thepetitioner and others who claim to have had knowledge of theincidents, with supporting documents on the one hand and theaffidavits of the officers who conducted the election and documentsin support, on the other. None of the affirmants of either side hasbeen subject to cross-examination.
There are two further reasons why the burden of proving the threelimbs of section 69 lie on the petitioner. Firstly, in any democraticelection to choose their representatives, the wish of the voters mustprevail. Once the result of an election has been declared, it can beinvalidated only on grounds provided by law. The burden is on thosewho seek to set aside the result to prove those grounds.
Secondly, the format of applications for equitable relief is such thatthe rules of the Supreme Court provide for the petitioner to supporthis petition with other original documents or certified copies thereof.
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When the petitioner fails to do so, the application is liable to be rejectedin limine. It is only where the petitioner has made out a case for reliefat the threshold stage that notice will issue on the respondent.
The Standard of Proof
Before considering the standard of proof necessary to discharge theburden on the petitioner, it is essential to consider the scope of section69. His Lordship the Chief Justice in Martin Perera (supra) havingidentified the three limbs of that section went on to state:
“But just as much as the motive which influences an electorto vote for a particular candidate is not part of the conduct of theelection, the more remote activity of influencing (whether by fairor illegal means) the choice of the election forms no part of theconduct of an election.”
"I note in this connection that section 24 of chapter 262 refersto the manner in which an election shall be held. Even if the word"held" may have a wide connotation which can include within itsscope the activity of influencing voters, the word "conducted" usedin s. 69 does not have so wide a meaning. In s. 41 also, thelanguage is that the poll shall be conducted, and the provisionsof ss. 42 to 65 refer to matters properly within the scope of theconduct of the poll. But here again there is no justification forregarding the motive of an elector or any matter which influ-ences that motive as being part of the conduct of the poll."
In Martin Perera (supra) the election of the respondent to the VillageCouncil was challenged by Quo Warranto on the ground of generalundue influence, bribery or treating under the Ordinance. There, it washeld, that in the absence of any provision to declare invalid an electionto a local authority on the ground of general undue influence, briberyor treating, it is not within the jurisdiction of court to find the respondenthas forfeited his seat, even if the acts of general undue influence,bribery or treating are proved in a proceeding for a Writ of QuoWarranto. This conclusion was arrived at by Court on the basis thatthe legislature had clearly provided for candidate, who gains a seatby general undue influence, bribery or treating, to be unseated onlyif he is convicted of such an offence.
CA General Secretary of the United National Party v. The Commissioner
of Elections and Others (Dr. Ranaraja, J.)69
From the decision in Martin Perera (supra) the following principlesemerge: (1) section 69 has to be narrowly construed to cover onlyinstances where the public officers conducting the election fail tocomply with the provisions of the Ordinance. (2) Acts of generalbribery, general treating, general intimidation or other misconduct, orother circumstances whether similar to those enumerated or not, whichinfluence the motive of the voters form no part of the conduct of theelections. (3) The legislature has deliberately refrained from adoptingthe provisions in the Presidential Elections Act (section 91 (a) ),Parliamentary Election Act (section 92 (1) (a)) and Provincial CouncilsElections Act (section 92 (1) (a) ) in the Local Authorities ElectionsOrdinance.
In considering the standard of proof, sections 91 (b), 92 (1) (b)and 92 (1) (b) of the three acts just referred to have great relevance,as the words used in those sections are similar to those in section69 of the Ordinance. Logically the standard of proof applicable in anelection petition filed under the three sections in the said Acts cannotbe any different from that in an application for equitable relief undersection 69 of the Ordinance.
Silva, J. in Premasinghe v. Bandara,(3> having reviewed the earlierdecisions on the burden of proof in Election cases, laid down thefollowing principles:
that any charge laid against a successful candidate by a petitionerin an election petition should be proved beyond reasonable doubtbefore a court could satisfy itself of such charge;
that suspicion, however strong it may be, does not amount toproof of any charge;
that even a high degree of probability is not sufficient to constitutethe proof required to establish a charge; and
that a court should be slow to act on one witness's word againstanother's, even if the word of the person who supports a chargerings true, when that constitutes the only evidence of such charge.
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This decision was followed by Samarakoon C.J. in Pilapitiya v.Chandrasiri and othersPK In similar vein, Sharvananda, J. in Rajapaksav. GunasekarafS) observed: "charges of corrupt practice are quasicriminal in character and the allegation thereto must be sufficientlyclear and precise and must be proved by evidence of a conclusivenature. The burden of proving the alleged corrupt practice is on thepetitioner and the allegations must be proved beyond reasonabledoubt. If any reasonable doubt arises, after the evidence has beenscrutinized, in respect of any of the ingredients of the charge, thebenefit thereof should go to the person charged." (p.9).
In the context of the Local Authorities Elections Ordinance, wherea recount was sought by way of mandamus, in De Silva v. IvanAppuham/61. Fernando, J. observed: “a fancied possibility of error isnot sufficient to vitiate a count, there must be material pointing toprobability of error, based upon grounds from which such an inferencecould reasonably be drawn".
On the authorities cited, by which this Court is bound, vide WalkerSons & Co., (UK) Ltd. v. Gunatilleke and othersm to succeed in anapplication, the petitioner must prove, if not beyond reasonable doubt,at least at a high degree of probability, the three limbs of section69, namely –
(a) that the elections officers failed to comply with the provisions ofthe Ordinance,
that the elections were not conducted in accordance with theprinciples laid down in these provisions, and(c) the result of the election was thereby affected.
Learned Counsel for the petitioner submitted that the English lawis less exacting in the requirement of the degree of proof in respectof the provisions of section 16 (3) of the Representation of the PeopleAct, 1949, which has some similarity to section 69 of the Ordinance.
Streatfeild, J. in Re Kensington North Parliamentary Election<8> wasof the view that it is for the Court to make up its mind on the evidenceas a whole, whether there was a substantial compliance with the lawas to the election or whether the act or omission affected the result.Lord Denning M.R. in Morgan v. Simpson191 having considered the
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decisions in Gill v. Read and Holmes’'01 ; Woodward v. Sarsons/n);Medhurst v. Lough and GasqueP*1; Gunn v. Sharpe<,3> suggested thatthe law should be stated in these propositions:-
If the election was conducted so badly that it was not substan-tially in accordance with the law as to elections, the electionis vitiated irrespective of whether the result was affected or not.(in Gill (supra) 2 out of 19 polling stations were closed all dayand 5,000 voters were unable to vote).
If the election was so conducted that it was substantially inaccordance with the law as to elections, nevertheless if therewas a breach of the rules or mistake at the polls and it didaffect the result then the election is vitiated, (As in Gunn (supra)where the mistake in not stamping 102 ballot papers did affectthe result. In Morgan (supra) 44 ballot papers were not markedwith the official stamp by mistake of the officials. If the 31 votesof the 44 cast in favour of Morgan were counted with the 10,329valid votes in favour of Morgan and the 13 votes for Simpsonwere counted with the 10,340 valid votes cast in his favour,it is Morgan and not Simpson who would have won by a majorityof 7 votes).
It is interesting to note that the English cases dealt with non-compliance with the law exclusively by elections officials, and supportthe view expressed by Fernando, C.J. in Martin Perera (supra) thatsection 69 is unconcerned with matters which influence the motiveof voters. The propositions stated by Lord Denning above, have beenadopted much earlier by Nagalingam, J. in Munasinghe v. Corea'when he observed "Every non-compliance with theprovisions of the Order in Council does not afford a ground fordeclaring an election void, but it must further be established (apartfrom any other requirement) that the non-compliance with the pro-visions was of such a kind or character that it could be said thatthe election had not been conducted in accordance with the principlesunderlying those provisions . . . The non-compliance should be ofsuch a degree and magnitude that it could reasonably be said thatas a result of such non-compliance the electorate had not been givena fair opportunity of electing the candidate of its choice”.
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Is Certiorari the proper remedy?
From the decisions cited above, it is clear the petitioner had a heavyburden to discharge in establishing the three limbs of section 69. Byits very nature an application for a Writ of Certiorari is dealt with onaffidavits and other documentary evidence. No proper proceeding atwhich witnesses are tendered for cross-examination, as in the caseof an inquiry into an election petition, takes place. Thus, except inthe rare instances where the allegations in the petition are admittedby the respondent elections officers, the petitioners will be faced withthe well nigh impossible task of proving beyond a reasonable doubt,(as in Premasinghe, Pilapitiya, Rajapaksa (supra) or at a high degreeof probability de Silva (supra) the allegations in the petition, solelyon supporting affidavits and documents. Therefore, seeking relief byway of Certiorari on the basis of section 69 would generally be futile.Certainly it is not the ideal remedy.
Conclusion
Most incidents referred to in paragraph 19 of the petitioner's affidavithave been admitted by the 1st respondent. However, none of thealleged unlawful acts was committed by the Elections Officers. Onthe other hand, those officers have thwarted any attempts, by thealleged P.A supporters to falsify the true will of the voters in stuffingballots into the ballot boxes, by invalidating those votes at the count.As seen, the incidents at each polling station took place over a shortperiod of time, leaving the officials no time to call for extra protection.There is no allegation that the officials on duty deliberately permittedthe incidents to take place within the polling stations or were guiltyof dereliction of duty. In the circumstances, this Court is constrainedto hold that the petitioner has failed to establish that the 1 st respondentor his officers failed to comply with the provisions of the Ordinance.It follows therefrom that there was no breach of the principlesunderlying those provisions. The argument of learned Counsel for thepetitioner that the said incidents prevented voters from casting theirvotes is unsupported by any evidence. The petition is bereft of anypleading on how the result of the election was affected. LearnedCounsel submitted that the incidents referred to may have preventedthe supporters of the U.N.P from casting their votes. Apart from thespeculative nature of the submission there is absolutely no evidenceto establish that the majority of 534 votes in favour of the P.A over
CA
Kamalaratne v. Samaratunge
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the U.N.P would have been the other way round, even if the electionsofficers were able to prevent the incidents that took place at the pollingstations. In the result, the application has to fail. The application isdismissed without costs.
Application dismissed.
