071-NLR-NLR-V-54-J.-C.-W.-MUNASINGHE-Petitioner-and-S.-C.-S.-COREA-et-al.-Respondents.pdf
Munaainghe v. Corea
283
1952Present :Swan J.J.C. W. MUNASINGHE, Petitioner, and S. C. S. COREA et al.,
Respondents
Election, Petition No. 11 of 1952 (Ghilaw)
Election Petition—Returning officer—la he a necessary party ?—Inspection of docu-ments—Secrecy of ballot—Ceylon (Parliamentary Elections) Order in Council,
1946, as. 42 (2), 45, 47 (1), 48 (10), 49 (1).
The returning officer is not a. necessary party to an election petition if the•only complaint made against him in the petition is that many ballot papersdelivered to the voters were not stamped or perforated with the official mark■as required by section 42 (2) of the Parliamentary Elections Order in Council,1946.
Application by motion was made by the petitioner in an election petition,prior to the date of its hearing, asking for inspection of the following•documents :—
the tendered votes lists made by the presiding officers,
the declarations made by the persons who voted on tendered ballot
papers,
those rejected ballot papers which were not stamped or perforated with
the official mark, and
the marked registers.
Held, that in the circumstances of the case inspection was necessary in respect•of the tendered votes lists, the declarations made by persons who voted ontendered ballot papers and the marked register so that the petitioner mightmaintain the charge of personation set out in the election petition. Thepetitioner should therefore be allowed to inspect and take copies of those■documents.
In regard to “ those rejected ballot papers which were not stamped or per-forated with the official mark ”, the petitioner should be allowed to inspectthem but not to take copies of them.
M
J.TJ.OTIONS in connection with Election Petition No. 11 of 1952;{Chilaw).
S.J. V. Chelvanayakam, Q.C., with A. C. Nadarajah, S. Thangarajah,B. S. G. Ratwatte, W. Mendis and C. V. Munasinghe, for the petitioner.
E. B. Wikramanayake, Q.C., with A. H. C. de Silva, G. T. Samara-■wickreme and A. K. Premadasa, for the 1st respondent.
T.S. Fernando, Acting Solicitor-General, with V. Tennekoon, for the
2nd respondent..
Cur. adv. milt.
284
SWAN J.—Munasinghe v. Corea
October 28,' 1952. Swan J.—
There are two matters that arise for consideration and adjudication,namely :—
the application of the 1st respondent on his motion dated 16.7.52:
asking for inspection of certain documents, and
the application of the 2nd respondent on his motion dated 12.7.52:
to be discharged from the proceedings.
I shall deal with the second application first. The Acting Solicitor-General appearing for the 2nd respondent (who is the returning officer)contends that the 2nd respondent is not a necessary party inasmuch as.he has no interest in the result of the election petition and would not beaffected adversely or otherwise, by any order that the Court may makethereon.
Mr. Chelvanayakam for the petitioner submits that the 2nd respondentis a necessary party. He points to paragraph 4 (a) of the petition whichstates that—
“ many ballot papers delivered to the voters were not stamped orperforated with the official mark as required by section 42 (2) of thesaid Order in Council; in the result a large number of votes givenin favour of the petitioner were not counted as votes for him. ”
He submits that inasmuch as an allegation of misconduct has beenmade against the returning officer he should be a respondent. He has,in this connection, drawn my attention to section 108 (2) of the Rep-resentation of the People Act, 1949, 1 which follows section 51 of theParliamentary Elections Act, 1868, 2 and subsequent legislation. Itwould appear that under the law as it obtains in England the returningofficer is “ deemed to be a respondent ” where the petition cc complainsof his conduct.
In further support of his contention that the 2nd respondent is anecessary party, Mr. Chelvanayakam cited the case of Islington 3 inwhich it was held that a returning officer might be joined where there was.conduct by himself or bis deputies not amounting to wilful misconductor wilful misfeasance. In that case complaint was made that the pollingstations were kept open too long, that the seals of a ballot-box wereimproperly broken to allow the inspection of a ballot paper, and thatthe numbers on the back of certain ballot papers were made known toan agent.-
He also referred me to the case of Wilson v. Ingham 4 where the nameof a candidate who had withdrawn was inadvertently printed on aballot paper. In that case Day J. observed that if he had been satisfiedthat there had been gross negligence he would not have hesitated tomulct the returning officer in costs.
12 and 13 Geo. VI c. 68.
31 and 32 Viet. c. 125' (a).
(1901) 5 O’ M & n 132.
* 64 L. J. Q. B. 775.72 L. T. 796.
SWAN J.—Stun asingh e v. Corea
285
The Acting Solicitor-General submits that the [English Law is differentfrom our law ; that under our Order in Council there is no similar pro-vision regarding the returning officer, namely, that he is deemed to bea respondent in certain cases. In the absence of any such provisionthe general law would apply ; and the general law is that only suchpersons should be made parties as are interested in the matter of theapplication and would be affected by any order made thereon.
Mr. Wikremanayake for the 1st respondent adopts a neutral attitudeand says that from his client’s point of view it is immaterial whether the2nd respondent is a party or not.
There may be instances where the returning officer could and should bemade a party respondent to an election petition but I am not satisfiedthat this is one. I would therefore make order discharging the 2ndrespondent from the proceedings. In the circumstances of this caseI make no order in his favour for costs against the petitioner.
I shall now deal with the other application, namely, the application ofthe petitioner on his motion dated 16.7.52 to inspect and take copiesof—
the tendered votes lists made by the presiding officers,
the tendered ballot papers,
the counterfoils of tendered ballot papers,
the declarations made by the persons who voted on tendered ballot
papers,
those rejected ballot papers which were not stamped or perforated
with the official mark,
(/) the counted ballot papers,
the counterfoils of the original ballot papers on which the alleged
personators voted,
the journals of the presiding officers, and
the marked registers.
In the course of his reply to Senior Counsel for the 1st respondent andthe learned Acting Solicitor-General (who appeared in this matter asamicus curiae) Mr. Chelvanayakam said that he was not pressing hisapplication in respect of (6), (c) , (/), (g) and (h). I shall therefore confinemy attention to the documents mentioned in (a), (d), (e) and (i).
Mr. Wikremanayake says that to allow the petitioner inspection ofthe marked register, the tendered votes lists and the declarations wouldviolate the rule of secrecy. He points to section 47 (1) of the Order inCouncil which requires every presiding officer of each polling stationat the close of the poll to “ make up into separate packets, sealed withhis own seal and the seals of the candidates or their agents if they desireto affix their seals—
the unused and spoilt ballot papers placed together,
the marked copies of the register Qf electors, and the counterfoils
of the ballot papers, and
the tendered votes lists.
. '… and despatch each such packet …. in safe
custody to the returning officer. ”
286
SWAJT J.—MunasingHe v. Qorea
In the case of Dias and others v. Amarasuriya1 Drieberg J. acting undersection 45 (10) of the Ceylon (State Council Elections) Order in Council,1931 (in which similar provision was made to that contained in section48 (10) of the present Order in Council) allowed inspection of the tenderedvotes lists, the declarations made by the voters who were given tenderedballot papers and the marked register. It should be noted that neitherCounsel for the respondent in that case nor Crown Counsel who appearedfor the returning officer raised any objection to inspection of the tenderedvotes lists. As regards the marked register while Counsel for the re-spondent objected, Crown Counsel said he was prepared to allow inspection.Dealing with this matter Drieberg J. stated—
“ There is no reason why the petitioners should not be allowedinspection of the marked register. It will only enable them to ascertainwhat votes were recorded and this they are entitled to know. Inspec-tion of the marked register is allowed in England. ”
In respect of the application for inspection of the declarations madeby those who had given tendered votes neither Counsel for the respondentnor Crown Counsel raised any objection, and Drieberg J. in allowing theapplication merely stated that there could not be any objection to thepetitioners being allowed inspection of those documents.
In the case of Saravanamuthu v. de Silva 2 de Kretser J. refused toallow inspection of the marked registers and the tendered votes lists.In that case the application was also made under section 45 (10) of theCeylon (State Council Elections) Order in Council, 1931. It was madeby the respondent during the course of the triql and the learned Judgesaid that he could not allow the application as it was not made for thepurpose of instituting or maintaining an election petition but in order torefute an allegation that certain persons had not voted. In the course ofhis order de Kretser J. drew attention to the fact that the English Lawis different from our law ; that under Rule 42 of the Ballot Act alldocuments other than ballot papers and counterfoils were open to publicinspection, and that the marked register was therefore a documentthat the petitioner in an election petition would in England be entitledto inspect.
In the case of Kuruppu v. Hettiaratchy 3 Nagalingam J. dealing withan application made under the present Order in Council refused to allowinspection of (a) the journals of the presiding officers on the groundthat they were private documents which were not liable to be disclosed,and (b) rejected and tendered ballot papers on the ground that dis-closure would violate the rule of secrecy. He allowed inspection of(c) the tendered votes lists, {d) the declarations made by those personswho voted on tendered ballot papers, and (e) the marked register.Dealing with (c) and (e) my learned brother observed :—
“ The list of tendered ballot papers and the marked register aredocuments which I think the petitioner is entitled to inspect in viewof the allegation that voters who would have cast their votes in favourof the petitioner have been personated at the election. ”
(1931) 33 N. L. R. 169.2 (1941) 43 N. L. R. 77.
(1947) 49 N. L. R. 57.
SWAN T.—Munasinghe v. Corea
287
Dealing with (d), namely, the declarations made by the persons whovoted on tendered ballot papers, he remarked—
“ The declarations …. to my mind are not documentswhich would furnish information to the petitioner any greater thanwhat the list of tendered ballot papers and the marked register wouldshow ; but as Counsel for both the respondents have consented to thosedocuments being made available to the petitioner, and as I can see noharm in granting the petitioner’s request in regard to them I would allowtheir inspection too. ”
On reading section 45 (which deals with tendered votes) I find thatthe declarations would prima facie contain more 'information than thelists ; for whereas the latter give only the numbers of the voters theformer disclose their names as well. Of course it could be said thatwhen the numbers are given the names are ascertainable from the register.But to my mind the declarations would help the petitioner to decidewhether the persons who voted on tendered ballot papers were the realelectors appearing on the register or impostors.
Mr. Wikremanayake says that if the polling agents of the petitionerwere wide awake and conscious of their responsibilities they shouldhave noted the numbers and names of the persons who claimed andobtained tendered ballot papers. Those remarks would apply equallyto the marked registers, for each polling agent could have ticked off onhis own copy of the register the voters who obtained ballot papers. Inthe absence of any provision that every polling agent should keep hisown marked register and also note the numbers and/or names of personswho obtained tendered ballot papers I do not think inspection couldbe refused on the particular ground urged by Counsel for the 1strespondent.
As regards the rule of secrecy of the ballot I cannot see how it would beinfringed by allowing the petitioner to have inspection of the tenderedvotes lists, the declarations and the marked registers. These documentswould not reveal for whom the electors voted.
Mr. Wikremanayake also contends that inspection of the documents towhich Mr. Chelvanayakam has confined his application are not necessaryfor the purpose mentioned in section 48 (10), namely, of “ institutingor maintaining …. an election petition in connection with thepetition. ” He also submits that I should not. allow inspection unlessI am satisfied beyond reasonable doubt that inspection is necessary.Section 48 (10) reads as follows :—
“ A Judge of the Supreme Court may make an order that any ballotpaper or other document relating to an election which has been sealedas required by this Order be inspected, copied, or produced at suchtime and place and subject to such conditions as-the Judge may deemexpedient, but shall not make such an order unless he is satisfied thatsuch inspection, copy or production is required for the purpose ofinstituting or maintaining a prosecution or an election petition in con-nection with the election. Save as aforesaid, no person shall be allowedto inspect any such ballot paper or document after it has been sealedup in pursuance of sub-section 9. ”
288
SWAN J.—Muna-aingh e v. Corea
It would thus appear that inspection cannot be had for the mereasking. In fact as I construe the section I realize that I am forbiddento allow inspection unless I am satisfied that inspection is necessary forthe petitioner to maintain his petition.
On the material placed before me and the submissions made by Counselfor the petitioner, I am satisfied that inspection is necessary in respectof the tendered votes lists, the declarations made by persons who votedon tendered ballot papers and the marked register so that the petitionermay maintain the charge of personation set out in paragraph (5) of thepetition. The petitioner will therefore be allowed to inspect and takecopies of these documents.
I shall now deal with the application for inspection of (e) “ thoserejected ballot papers which were not stamped or perforated with theofficial mark. ” Undoubtedly the decision of the returning officerregarding these rejected votes is final. Section 49 (1) requires him toreject inter alia all ballot papers which are not stamped or perforatedwith the official mark ; and sub-section 5 declares that “ the decisionof the returning officer whether or not any ballot paper shall be rejectedshall be final and shall not be questioned on an election petition. But theOrder in Council does not anywhere state that an election shall not bedeclared void on the ground alleged. Whether-the alleged issue by thePresiding Officers and their Assistants of a large number of ballot paperswithout the official stamp or perforation would avoid the election is amatter that will have to be considered at the trial.
In'my opinion the petitioner should be allowed inspection of thesepapers. He will, however, not be allowed to take copies, because thetaking of copies will not only be unnecessary for his purpose but mayinfringe the rule of secrecy. In order to insure secrecy these papersmust be inspected face upwards, and all proper precautions should betaken to prevent any person from seeing the numbers printed on theirbacks.
Inspection of the documents of which I have allowed inspection willbe had by the petitioner or his duly authorised agent in this behalf in theimmediate presence of the returning officer and of Mr. Navaratnam,Deputy Registrar of this Court. The 1st respondent or his dulyauthorized agent in this behalf will also be entitled to be present. TheDeputy Registrar is directed to see that no others are present.
I make no order as to the costs of this inquiry.
Motions allowed.