J. C. W. MUNASINGHE, Appellant, and S.C.S. COREA, Respondent

072-NLR-NLR-V-55-J.-C.-W.-MUNASINGHE-Appellant-and-S.C.S.-COREA-Respondent.pdf

Munasinghe v. Corea
265
1953 Present: Nagalingam A.C.J., Pulle J. and K. D. de Silva J.J. C. W. iyrUNASESTGHB, Appellant, and S. C. S. COREA,Respondent
Election Petition Appeal
Election Petition No. 11 of 1952 (Ghilaw)
Election Petition—Impersonated and tendered votes—Scrutiny—Addition of tenderedvotes—Striking out of corresponding impersonated votes necessary first—“ Particular elector ”—Missing ballot papers—Absence of evidence as to howthey were lost—Non-compliance with the provisions of the Order in Councilrelating to elections—Effect on validity of election—Ceylon {ParliamentaryElections) Order in Council, 194b, ss. 45, 49, 51 {1), 77 (6), 85 (7) (c) and (3).
Sub-paragraph (c) of paragraph (1) of section 85 of the ParliamentaryElections Order in Council of 1946 should be construed as the complementof paragraph (3) of the same section. On a scrutiny, therefore, at the trial of anelection petition, the election judge is not entitled to add a tendered vote unlesshe is in a position to strike out the corresponding impersonated vote.
Before a person can be issued a tendered ballot paper under section 45 of theOrder in Council, that person must show that he is “ a particular elector namedin the register ”, Where there are two or more voters with identical names inthe register and the address given is not distinctive enough to identify any oneof such voters with one or other of the entries, it is not possible for any one ofthem to prove that he is a “ particular elector ” within the meaning of thesection.
Where certain ballot papers that had been issued are found missing and thereis no evidence as to how they were lost, it is not possible to attribute to anyofficer charged with the conduct of elections non-compliance with theprovisions of the Order in Council within the meaning of section 77 (6).
Thirty-two out of 26,054 ballot papers that had been issued were nottaken into account in counting the votes cast in favour of any of the candidates,the Returning Officer having rejected them in terms of section 49 as theywere not stamped or perforated with the official mark. The failure to perforatewas due to the omission on the part of the election officers, but the omission wasnot due to any deliberate fraud or dishonesty on their part. The successfulcandidate defeated the runner-up by a majority of eight votes only.
Held, that the omission of the officers entrusted with the conduct of theelection to perforate duly the 32 ballot papers was not a non-compliance withthe provisions of the Parliamentary Elections Order in Council within themeaning of section 77 (b). To invalidate an election under section 77 (6),there should be a violation of the principles underlying the conduct of theelection ; the non-compliance should be 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.The fact that out of 26,054 ballot papers, only 32 had no perforations, was themost satisfying pr4>of that the election had been conducted in accordance withthe principles laid down in that behalf in the provisions of the Order in Council.To ascertain whether or not the election was conducted in accordance with theprinciples laid down in the Order in Council it was entirely unjustifiable to takeinto consideration whether the number of ballot papers unperforated wasgreater than the majority by which the successful candidate was declared dulyelected.
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NAGALINGAM A.C.J.—-Munasinghe v. Gorea
A.PPEAL from tlie order of the Election Judge in Chilaw ElectionPetition No. 11 of 1952.
S. J. V. GhelvanayaJcam, Q.C., with. A. C. Nadarajah, S. Thangarajah,G. V. Munasinghe and A. Mututantri, for the petitioner appellant.
S. Nadesan, with A. H. G. de Silva, A. JB. Perera, G. T. Samarawickremeand A. K. Premadasa, for the respondent.
Cur. adv. vult.
December 18, 1953. Nagalikgam A.C.J.—
Upon an election petition presented by the appellant -who was himselfone of the candidates seeking election, the appellant sought to have therespondent unseated upon various grounds, two of which only need benoticed for the purposes of this appeal, firstly that there had been a non-compliance with the provisions relating to elections of the Order-in-Councilwithin the meaning of section 77 (6) thereof, secondly that the return ofthe respondent was undne. I think it would be more convenient to takeup the second ground first.<•
The learned Judge after scrutiny reduced the majority of the respondentover the petitioner from fifty-four to eight. That majority was arrivedat on a hypothetical basis, namely, that every vote which the learnedJudge held had been impersonated and every tendered vote which heregarded as a valid vote were assumed to have been cast against therespondent without making an inspection however to ascertain how thevoting on those ballot papers went.
On behalf of the appellant, although objections were raised in appealto several other cases of of impersonations which had not been upheld bythe Election Judge, ultimately the argument was confined to elevencases. In each of these eleven cases there were at least two votersbearing identical names and who had been registered as electorsentitled to vote at one and the same polling booth. It is common groundthat in these cases two or more persons had voted under those identicalnames and so completely exhausted the votes of all such persons.To take one case, the register of voters entitled to vote at a particularpolling booth contained the name of Weerasinghe Mudiyanselage Menik-hamy twice over. Two persons each of whom claimed to be WeerasingheMudiyanselage Menikhamy had appeared at the polling booth, obtainedballot papers and cast their votes ; their names had been ticked off ohthe register, showing that the two voters bearing the name of WeerasingheMudiyanselage Menikhamy had been issued ballot papers. Thereaftera .person claiming to be one of the voters registeredc*under the name ofWeerasinghe Mudiyanselage-Menikhamy,- whom I shall hereinafter referto as the tjurd Menikhamy, appeared before the Presiding Officer andclaimed a ballot paper. The Presiding Officer having ascertained thattwo Menikhamys had already voted in that name took proceedings tohave a declaration signed by the third Menikhamy and then issued tohim a tendered ballot paper.
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At the election inquiry the third Menikhamy appeared and gave evi-dence to the effect that he bore the name of Weerasinghe MudiyanselageMenikhamy and that he lived at Maiyawa, that he went to vote butthat he was ♦'old that some other person had already been issued a ballotpaper, that thereupon he signed a declaration which contained a referenceto the number on the register, which had been arbitrarily placed by thePresiding Officer, and that thereafter he voted on a tendered ballot paper.
Counsel for the petitioner contends that as the learned Election Judgehas held that the third Menikhamy who appeared before him is one ofthe two voters registered under that name the finding of the learnedJudge amounted to a declaration that the tendered vote on which thethird Menikhamy had voted was a valid vote and that it had to be addedto the poll in terms of paragraph (3) of section 85 of the OrdOr-in-Couneil. It is conceded, however, by the petitioner’s counsel that theJudge could not possibly have struck out the impersonated vpte in termsof sub-paragraph (c) of paragraph (1) of the same section, for he admitsit is not possible to identify which of the two persons who had earliervuted under the name of Weerasinghe Mudiyanselage Menikhamy hadin fact impersonated the third Menikhamy. The view the learned Judgetook, however, was that before he could add a tendered vote he mustbe in a position to strike out the corresponding impersonated vote.Mr. Chelvanayakam, however, submits that the addition of a tenderedvote to the poll is not dependent upon striking out any or an allegedcorresponding impersonated vote.
The true solution to this problem is to be found in section 45 of theOrder-in-Council which prescribes the limitations subject to which. atendered ballot paper could be issued to a voter. The section expresslyenacts that before a person could be issued a tendered ballot paper thatperson must represent himself to be “a particular elector named in theregister ”. Mr. Chelvanayakam would read these words as meaning“ a voter whose name appears on the register ”. I think to attach sucha meaning to the words is not to give full effect to each and everyone of the words used in the phrase. What is the significance of usingthe qualifying epithet “ particular ” in regard to the elector ? If nospecial meaning is to be attached then that word may have beenomitted and the section could have merely referred to a person represent-ing himself to be a person whose name appears in the register. Butthat does not appear to have been the intention, for some meaning hasto be given to the term “ particular elector ”. The meaning to beattached to it becomes plain if one takes the generality of cases wherethe name of an elector in a city or town is placed, on the register. Notonly would the name of the elector appear but also his address, the addressgiving reference to;the street and assessment or rating number assignedto the dwelling house of the voter. If there were two voters having thesame name, if one excepts the very exceptional case of two persons bearingidentical names living at the same premises, their separate addresses willdetermine whether he is the one voter or the other though the names ofthe two be the same. Even in the exceptional case referred to, if fatherand son bore the same name, then it may be possible to identify the
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earlier entry as that relating to the father and the latter as that of the son,if there ia evidence that the names -were given in that order at the timeof the compilation of the registers. Now, if one of the two persons orboth bearing the identical names but having different addresses had beenimpersonated, it would be possible on the real voter appearing at thepolling booth and giving his address, and if that address tatiied -with oneof the addresses given in the register, then to conclude that it was theelector whose name was registered at that address that had been imper-sonated. In such a case, there cannot be the least difficulty in the caseof the voter who had been impersonated, from establishing that he was theparticular elector named in the register and bearing a particular numberwho had been impersonated. The number itself, there can be little doubt,is assigned to the name for the sake of convenience and to facilitatereference to the particular voter, but nevertheless when once a numberhas been assigned to an entry relating to a particular elector, the number,to all intents and purposes, becomes a special or distinguishing markof the particular elector whose name has been registered against thatnumber, and one might almost say that the number is a compendiousdescription of the name and residence of the particular elector.
It is to be observed in this connection that the mode of identificationof the voter to whom a ballot paper has been issued with the voterwhose name has been placed on the register is by means of the number,for it is the number alone that is marked on the counterfoil of the ballotpaper that is issued. It is manifest therefore that although two ormore names may be identical, where the addresses are different the identi-fication of any particular entry as that relating to a particular elector issimple enough. Of course, the difficulty that has arisen in all the elevencases that have been challenged arises from the circumstance that theaddresses are not in themselves distinctive and are devoid of any specialfeature enabling the identification of one entry in the register as thatrelating to one elector and the other entry as that of the other elector.The reason for this is that the voters all hail from the same village wherethere are neither street names nor assessment or other numbers assignedto the houses, and therefore the address is merely that of the villageand that address applies equally to all the persons bearing identical namesand living in that village. But does it follow from this that the merecircumstance that a perusal of the register does not enable one to identifyany particular entry as that relating to any one of several persons bearingthe identical name, even when section 45 requires that a person claimingto have been impersonated should expressly represent himself to be aparticular elector, that the provision is not to apply to him solely becauseit is not possible to identify him with any one of the several identicalnames on the register ?
Mr. Chelvanayakam contended that because of this difficulty and whatis more, according to him, it would not even be possible in view of themanner in which the registers are prepared to show which of severalindividuals bearing the same name and having a colourless address (sofar as they are collectively concerned) had his name registered againsta particular number, that section 45 should be so construed as to give
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it what he called a workable interpretation so that it should only beregarded as incumbent on a voter in such circumstances to prove thathe is a voter whose name appears on the register without being calledupon at the srme time to establish his identity with a particular entry inthe register. I do not think a statute which is perfectly plain and clearin regard to its language should receive a mutilated interpretation for thereason that ir a particular case the ordinary meaning of the languageplaces a party at a disadvantage as the nature of proof required of rele-vant facts under the meaning so placed becomes difficult or even impossiblein the circumstances.
It is true that by so holding impersonation of one or more voters whobear the same name cannot be righted although it may be obvious thatthe true voters have not voted ; it is said further it will open the doorwide to fraudulent impersonations because such impersonations cannotbe remedied thereafter. That, no doubt, is a serious consequence thatflows from the proper interpretation to be placed on the section, but thatproblem is one for the legislature to direct and require that when twoor more identical names appear in the register relating to a particularvillage, and where the address is not distinctive enough to identify thevoters with one or other of the entries, then a description either by wayof occupation or by reference to name of the father or other specialfeature should be set out against the names in the registers with a viewto identify the particular voter registered against a particular entry.
Mr. Chelvanayakam, however, conceded that neither he nor any of theeleven persons who claimed to be the true voters and who gave evidencecould say which entry in the registers related to any one of them. Inthese circumstances it must follow that there was no proof that the personwho has been termed the true voter is a particular voter named in theregister.
Besides, in the absence of proof that a person is a particular electorhe is not entitled to receive a tendered ballot paper, for a tendered ballotpaper is issued to him because the ballot paper which had been issued tothe impersonator does not record an effective vote. But where the voterwho has been impersonated can identify the entry relating to bim in theregister, then it is obvious that the impersonated vote can be struck outof the pail, for.the ballot paper voted on by the impersonator can beidentified ; but where the person impersonated cannot identify his namewith a particular entry in the Register, then the non-effective vote cannotbe struck out, and if one permitted the addition of the tendered ballotpaper the result would be to increase artificially the poll and unreal situa-tions can arise. It has, however, been said that the unsatisfactory stateof the poll that would arise after addition of the tendered votes withoutstriking out corresponding impersonated voters would be due not to theaddition of the tendered votes but in reality to the fact that impersonatedvotes have already been included in the poll. This, no doubt, in a senseis true, but this much may be said that the impersonated votes do notartificially increase the number of electors who polled, but on the other2*J. N. B 32805 (1/54)
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Land the addition of tendered votes without striking out a correspondingnumber would be to give an unreal picture of the number of voters whohad gone to the polls.
I think, therefore, that the learned Judge was correct in construingsub-paragraph (c) of paragraph (1) of section 85 as the complement ofparagraph (3) of the same section.■
It is true that there were three tendered votes which were added with-out any corresponding votes being struck out. These were cases wherealthough no person had previously voted in the names of three votersthey were issued, due, no doubt, to what must be regarded as carelessnesson the part of the election officers, tendered ballot papers on the suppo-sition that other persons had in fact been issued the relative ballot papers,while in truth not one had been issued a ballot paper. At the argumentMr. Nadesan for the respondent in justification of the order directingthe three new votes to be added to the poll referred to section 86 of theOrder-in-Council and conceded that the three tendered votes were validones, and I shall therefore say nothing further about them. I should,however, wish to observe that I reserve my opinion on this point till I haveheard argument on it.
I am therefore of opinion that the learned Election Judge was rightin refusing to add to the poll the eleven votes complained of, and I shallassume that the majority of the respondent has in the light of the learnedJudge’s findings been reduced to eight.
I next proceed to consider the first ground, namely, that there has beena non-compliance with the provisions relating to elections in the Order-in-Council. The appellant’s case under this head is said to be based on andto relate to two categories of ballot papers—(a) thirty two ballot papersadmitted to be genuine but issued without an official mark or perforationthereon, and (6) eight missing ballot papers.
The assertion that eight ballot papers, although issued, were missing,is dependent upon, according to the petitioner, a simple arithmeticalprocess, namely by a count of the number of counterfoils left in the booksof ballot papers, which would indicate the number of foils or ballot papersthat had been Issued, and deducting from the number so found the numberof ballot papers deposited in the ballot boxes found by counting them.For the respondent it has been contended that this process is unwarranted,for it is said that ballot papers spoilt either in the process of issuing or inthe marking thereof by a voter would all be bundled and kept separately,and unless these were taken into the reckoning the difference arrivedat by adopting the petitioner’s method would not be a true indicationof whether any, and if so the number of, ballot papers which were missing.
Besides, it is contended that there is no evidence as to how the eightor any smaller number of ballot papers have been lost. It is commonground that nothing improper can be said to have been done by theofficers co'nneeted with the election to which.the loss could be attributed.The Returning Officer who gave evidence, however, expressed the opinionthat possibly some of the voters to whom ballot papers had been issued
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liad surreptitiously removed them without putting them into the ballotboxes. This is purely a matter of conjecture. On the assumption thatthe opinion expressed by the Returning Officer is the only explanationfor the papers missing, it has been urged that such loss reveals non-compliance on the part of the election officers with the provisions of theOrder-in-Council which require that the ballot paper should, after beingmarked by a v oter, be then folded up so as to show the official mark on it,and the voter should after showing the official mark to the PresidingOfficer put the ballot paper into the box.
It is further pointed out that the removal of a ballot paper fromthe polling booth is in itself an offence apart from other offences of a likenature created in regard to similar matters in relation to ballot papersfound outside the polling booth. Assuming that the loss of eight ballotpapers was due to the circumstance alleged by the petitioner, I do notthink it follows that the ground enunciated in section 77 (6) is establishedfor the reasons I shall set out when I deal with the argument in regard tothe unperforated thirty-two ballot papers. But I think, so far as theeight missing ballot papers are concerned, the true position appears to bethat there is no evidence of any kind whatsoever as to how they were lost,and in the absence of any evidence it is not possible to attribute to anyofficer charged with the conduct of elections non-compliance with theprovisions of the Order-in-Council, nor even to charge a voter with having. carried away a ballot paper in contravention of the provisions of theOrder-in-Council.
I do not therefore think that the basis upon which the loss of eightballot papers was sought to be made a ground for the non-compliancealleged under section 77 {b) has been established.
The thirty-two ballot papers stand on a different footing. The casewas presented on the uncontroverted allegation that the thirty-twoballot papers were genuine ballot papers in the sense that they had comefrom the books from which ballot papers had been issued by the electionofficers at the time of the poll. It is agreed that the thirty-two ballotpapers were not taken into account in counting the votes cast in favourof any of the candidates and that the Returning Officer properly, in termsof section 49, rejected them as they were not stamped or perforated withthe official mark. That the non-perforation was due to the omhaionon the part of the election officers is not disputed, but such omission,however, has not been characterised as being the outcome of any deliberatefraud or dishonesty on their part. It is, however, contended on behalfof the petitioner that it is sufficient if he proves a non-compliance withthe provisions of the Order-in-Council, which requires that the electionofficers should before issuing a ballot paper duly perforate it so as to makeit an effective ballot paper at the count, and that if a ballot becomes non-effective by reason of the lack of the official mark, that result is dueentirely to a non-compliance with the provisions of the Order-in-Councilby the officers entrusted with the conduct of the election.’
If the matter stood there, there can be little doubt that the petitionercan be said to have established his case ; but paragraph (ft) of section 77
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requires something more. It provides that the non-compliance withthe provisions of the Order-in-Council would be a ground for declaringan election void “ if it appears that the election was not conducted inaccordance with the principles laid down in such provisions and thatsuch non-compliance affected the result of the election ^Much to thesame effect but viewing the provision from the opposite angle isparagraph (!) of section 51, which runs as follows :—
“ No election shall be invalid by reason of any failure to comply withany provision of this Order relating to elections, if it appears that theelection was conducted in accordance with the principles laid down insuch provisions and that such failure did.not affect the result of theelection. ”
This language, to my mind, draws a sharp distinction between a failureto comply with the provisions of the Order-in-Council in regard toelections and a failure to conduct an election in accordance with theprinciples laid down in such provisions.
Every non-compliance with the provisions of the Order-in-Councildoes not afford a ground for declaring an election void, but it must furtherbe established (apart from any other requirement) that the non-compliancewith the provisions was of such a kind or character that it could be saidthat the election had not been conducted in accordance with theprinciples underlying those provisions. Are the “ principles laid downin the provisions ” of the Order-in-Council different from the provisionsthejnselves % Unless they were, no adequate reason can be assigned forthe draftsman using the language he has used. The difference, I think,consists not so much in the nature of the non-compliance as in thedegree of that non-compliance ; it consists not in a bare non-compliancebut in the magnitude or extent of the non-compliance.
If, for instance, instead of there being thirty-two, there were fivethousand unperforated ballot papers, I should take the view in thosecircumstances that not only was there a non-compliance with theprovisions of the Order-in-Council but that the election itself had not beenconducted in accordance with the principles laid down in such provisions,because in such a case the principle underlying elections that would beviolated would be that by the non-observance by the officers conductingthe elections the votes of a large section of the electors had been renderedineffective and such large scale non-compliance would lead to the inferencethat there had not been a fair election. In such a case it may be suggestedthat election officers had taken sides by issuing unperforated ballot papersto persons who they had reason to believe were voting on the side of thecandidate whose candidature they did not favour. But in this case thefacts are that there are thirty-two ballot papers that have not beenperforated. It is admitted that there were twenty polling booths.Striking out an average, it may be said that less than two ballot papershad been issued at each of the polling stations without perforation marks.The total number of ballot papers issued was a little more than twentysix thousand. Again, working out an average, one thousand three hundredballot papers could be assumed to have been issued from each of the
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polling stations, so that two ballot papers out of every one thousand threehundred have escaped the attention or passed the vigilance of the issuingofficers, resulting in their not being perforated. Can it be said that therehas been a violation of the principles underlying the conduct of theelection ? However careful, however diligent the officers may have been,nevertheless it is impossible to prevent an occasional slip, especiallyduring what has been termed the rush periods of voting. I would not putdown the omission to perforate these ballot papers to carelessness, andmuch less to negligence, but rather to human fallibility, to the imperfectionof the human machine, to what is sometimes termed the human element.The fact that out of 26,054 ballot papers thirty-two had no perforations,in other words that over 26,000 had been duly perforated, is the mostsatisfying proof that the election had been conducted at the variouspolling booths in accordance with the principles laid down in that behalfin the provisions of the Order-in-Couneil. To hold otherwise would be notmerely to set at naught elections in general but to render entirely un-workable the democratic machinery. It is impossible to avoid anoccasional slip or two taking place when such large numbers of ballotpapers are issued, and to say that every trivial transgression is a groundof non-compliance for setting aside an election is a proposition I finddifficult to accede to. The non-compliance should be of such degree andmagnitude that it could reasonably be said that as a result of such non-compliance the electorate had not been given a fair opportunity ofelecting the candidate of its choice.
It was, however, urged that the test determining the proportion of thenumber of unperforated ballot papers to the perforated ones is a fallaciousone ; it was suggested that the true test was to ascertain the number ofballot papers not bearing the official mark in relation to the margin ofmajority which the successful candidate has secured against the runnerup. I think this suggestion bears more properly on the second limb ofthe provision of section 77 (6), which requires that it should also beestablished that such non-compliance affected the result of the election.On this question I can quite see it has an all important bearing. But tofind out whether the election was or was not conducted in accordance withthe principles laid down in the Order-in-Council it seems to me entirelyunjustifiable to take into consideration whether the number of ballotpapers unperforated was greater than the majority by which the successfulcandidate was declared duly elected.
It is true that if the thirty-two ballot papers had been taken intofcomputation and if the majority of those ballot papers were in favour ofthe petitioner, the ultimate result of the election may have been that thepetitioner would have been declared duly elected. But that will onlymean that the non-compliance with the provisions of the Order-in-Councilhas affected the resuit of the election ; it does not help to solve the questionwhether the non-compliance was such as to lead to the inference that theelection had not been conducted in accordance with the principles laiddown in the Order-in-Council. It is important, in this connection, to guardagainst the fallacy of arguing that the degree or magnitude of non-compliance is to be gauged by the effect a particular non-compliance has
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on the result of the election. The degree and magnitude of non-compliancehas to be determined, as I see it, not by reference to its incidence on thecandidates as on the electorate.'
I am of opinion that the non-perforation of thirty two ballot papers outof 26,000 odd does not in the slightest degree establish that the electionhad not been conducted in accordance with the principles oi election laiddown in the Order-in-Council.
Having regard to these reasons I reached the conclusion that the appealshould be dismissed with costs..
Pttlle J.—I agree.
K. D. de Silva J.—I agree.
Appeal dismissed.