K. D. DAVID PERERA, Appellant, and A. W. A. K. PEIRIS and another, Respondents

055-NLR-NLR-V-72-K.-D.-DAVID-PERERA-Appellant-and-A.-W.-A.-K.-PEIRIS-and-another-Respondents.pdf


David Pcrcra v. Peiris
217
1969Present: H. N. G. Fernando, C.J., Sirimane, J., andWeeramantry, J.K.D. DAVID PERERA, Appellant, and A. V. A. K. PEIRISand another, RespondentsElection Petition Appeal No. 3 of 1968—Bandaragama (Electoral
District No. 27)
Parliamentary election—Appeal to Supreme Court from decision of an ElectionJudge—Report oj Supreme Court that a corrupt or illegal practice was committedby a person—Validity to disqualify that person for membership of House ofRepresentatives—ParliamctU's power to amend Parliamentary Elections Order inCouncil—Constitutional validity of a Statute—li'7/e/i ft Court will make apronouncement thereon—Ceylon {Parliamentary Elections) Order in Council{Cap. 3S1), ss. S2A, S2C (2) (6), S2D (2)— Ceylon {Constitution) Order inCouncil (Cap. 379), es. 13 {3) (A), 29 {4).
Where, upon an appeal to tho Supremo Court from <ho decision of on ElectionJudge, the Supremo Court sends a report to the Governor-General in terms ofsection S2C{2) (6) of the Ceylon (Parliamentary Elections) Order in Council that ucorrupt or illegal practice lias been committed by a person, tlio report is affectiveto disqualify that person under section 13(3) (A) of tho Ceylon (Constitution)Order in Council for membership of tho House of Representatives.
The Parliamentary Elections Order in Council may be amended, by virtueof tho section 29 (4) of tho Constitution Order in Coimcil, by an Act passed by asimple majority of the House of Representatives.
Section S2D(2) of tho Parliamentary Elections Order in Council, in so far asit attaches to a person who is reported by the Supreme Court tho incapacityreferred to in section 13 (3) (A) of the Constitution Order in Council, is not ultravires and void on the ground that, when it was enacted, it was tantamount toan amendment of section 13 (3)(A) of the Constitution requiring a two-thirdsmajority in Parliament in compliance with tho proviso to section 29 (4) ofthe Constitution. The pronouncement to tho contrary in Thambiayah v.Kulasingham (50 N. L. R. 25) was made obiter and per ineuriatn.
A Court will not pronounce upon tho constitutional validity of a Statuteunless a decision as to validity is essential for the purposes of the case actuallybefore the Court.
Appeal from the judgment of an Election Judge reported in(1968) 71 N. L. B. 4S1.
Colvin B. de Silva, with Hat urn Ismail, Mrs. Manouri Multetuicegama,P. W. D. de. Silva and Shiblif Aziz, for the rcspondeht-appellant.
H. IV. Jayewardene, Q.C., with A. C. Gooneratne, Q.C., IzadeenMohamed, H. D. Tambiah, Mark Fernando and B. C. Gooneratne, for thepetitioners-respondents.
H. L. de Silva, Crown Counsel, with N. Sinnelamby, Crown Counsel, forthe Attorney-General.
Cur. adv. vult.
lxxtt—10, 11 & 12
!•—J 8953—2,152(11/69)
218
H. X. G. FERNANDO, C.J.—David Perera v. Peiris
February 22, 1969. H. N. G. Fernando, C.J.—
At a bye-election held on 23rd September 1967, the candidate who isthe appellant in this appeal was declared elected as Member of Parliamentfor the Bandaragama Seat in the House of Representatives. But at thetrial of an election petition his election was determined by the ElectionJudge to be void on the ground that he was at the time of his electiondisqualified for election as a Member. This appeal is against thatdetermination.
The appellant successfully contested the same seat at the GeneralElection of March 1965, and, upon an election petition then filed againsthim, an Election Judge determined that lie had been duly elected at thatElection. On appeal to the Supreme Court, however, it was determinedthat this election of the appellant was void on the ground that acorrupt practice had been committed by an agent of the appellant.Having so determined, the Judges who heard the appeal made a Reportto tlic Governor-General stating that a corrupt practice had beencommitted at the election by an agent of the appellant, and a copy of thisreport was published in the Gazelle of 2nd Julj' 1967. The judgment ofthe Election Judge which is under appeal in the present case holds thatthe appellant was discpialified at the time of the bye-election by reasonof the combined operation of the said Report, of s. S2D (2) of the CeylonParliamentary Elections Order in Council, and of s. 13 (3) (h) of theConstitution.
Section 13 (3) (h) of the Constitution provides that a person shall bedisqualified for being elected a Member of Parliament or for sitting orvoting in Parliament if “ by reason of his conviction for a corrupt orillegal practice or by reason of the report of an Election Judge in accor-dance with (lie law for the time being in force relating to the. election ofSenators and Members of Parliament he is incapable of being elected as aSenator or Member ”. The essential fact on which Counsel appearing forthe appellant lias relied i«that the Report published in the Gazelle of 2ndJuly 1967 is not the report of an Election Judge”, but is instead aReport of the Supreme Court. Relying upon this fact, Counsel hasargued, firstly that the Report of the Supreme Court was not such areport as is referred to in s. 13 (3) (h) of the Constitution and that it there-fore did not have the effect of attaching to the appellant a disqualificationunder that section : and secondly that in so far as the provisions of s. S2P (2) of the Parliamentary Elections Order in Council (hereinafter referredto as' the ** Election Law ”), purported to attach to a person reported ina Report of the Supreme Court the incapacity referred to in s. 13 (3) (A),those provisions are ultra vires and therefore void.
Much the same argument was considered by this Court in the veryfirst appeal preferred under the Elections Law from the determination ofan Election Judge (Thumbiayah v. Kulasingkum '). I must acknowledgethat a perusal of the judgment in that case had. prior to the present
1 (1948) 50 N. L. R. 25.
H. N. G. FERNANDO, C.J.—David Perera ». Petris219
hearing, led me to form a tentative opinion that this argument was asound one. However, after consideration of the question at issue and ofthe able arguments of the Counsel in'this appeal, I have reached theconclusion that the learned Election Judge in the instant ease has rightlydecided that question. I do not propose to set- out here the variousrelevant provisions of the Constitution and of the Election Law becausethey are fully set out in the judgment under appeal.
It is important to note that when the Constitution was enacted in May1946, the reference in s. 13 (3) (A) to “ the law rclat ng to the election ofSenators and Members of Parliament 15 was not a reference to any existinglaw, because there was yet no law relating to that subject. But s. 13 ofthe Constitution did contemplate that there will be such a law, and thatsuch a law will or may provide for the making of a report by an ElectionJudge as to the commission of a corrupt or illegal practice at an election,and will or may provide that by reason of such a report a person will beincapable of being elected a Senator or Member of Parliament. Thelanguage of paragraph (A) of sub-section f3) of's.' 13,"when-compared to-the language of other paragraphs of that- sub-section, establishes that thisparticular disqualification was not imposed or defined in paragraph (A)itself. There was instead (a) the-contemplation or expectation that anElections Law will be enacted and will or may impose and define anincapacity for election to Parliament arising from the report of anElection Judge, plus (b) a prospective adoption of any incapacity whichwould be so imposed and defined.
When therefore the Parliamentary Elections Law as in fact enacted inSeptember, 1946, did contain provision for the report of an ElectionJudge and for the incapacity thereby arising, the subject of that provisiotiwas not one which the Constitution itself regarded as a subject which maylawfully be dealt with only in an enactment amending the Constitution.On the contrary, s. 13 (3) (h) expressly contemplates that the authoritycompetent to enact “ the law for the time being relating to the electionof Senators and Members of Parliament ” has power to deal with thissubject, and that authority today is the Parliament of Ce37lon.
Doubts concerning the question under considerations have arisenchiefly because the Election Law in its original form was an Order of HisMajesty in Council and that it provided only for the trial of an electionpetition, and for the determination and report of an Election Judge aftersuch trial. The provision for appeals from an Election Judge and fordeterminations and reports of three Judges of the Supreme Court wasmade by an amending Act of Parliament No. 19 of 194S. That Act didnot bear a Certificate of the Speaker under s. 29 of the Constitution thatit was passed by a two-thirds majority in the House of Representatives.The principal argument in this appeal lias been that the amendedsections of the Election Lau*, when they authorise a report by the SupremeCourt as to the commission of a corrupt or illegal practice and attach to aperson thus reported the incapacity for election to Parliament, are tanta-mount to an amendment of s. 13 (3) (A) of the Constitution. Thus the
220
H. N. G. FERNANDO, C.J.—David Perera v. Pei ns
question is whether s. 13 (3) (h) of the Constitution intended to adoptas a disqualification only an incapacity for membership of Parliamentdeclared by the contemplated Election Law to arise from the report ofa trial Judge, but not an incapacity declared by the same Law to arisefrom the report of Judges exercising a jurisdiction in appeal from thedetermination of a trial Judge.
The 1918 decision in Thambiaydh v. KuJasingham directly upheld thevalidit3r of the provision in the Election Law (as amended b}' Act iSfo. 19of 191S) which empowered the Supreme Court in appeal to reverse adetermination of a trial Judge holding that the election of a person as aMember of Parliament was void on the ground of disqualification.
There have thereafter been numerous cases in which appellants haveinvoked the jurisdiction of this Court., in appeal from determinations ofElection Judges, to reverse such a determination and to hold in appeal,that an election is void, or as the case may be, that a person elected at apool' was duly elected. That jurisdiction in appeal has not beenchallenged in any of these cases, including the present case. .It is thussettled law that the Constitution, when it contemplated the enactment ofan Election Law, recognised the validity of provision in any prospectiveElection Law which would empower Judges sitting in appeal toreverse and replace determinations of trial Judges in election cases.That recognition fully involves acceptance of a common-sense principleunderlying the establishment of all appellate jurisdictions, namelythat the review of judicial decisions by judicial tribunals is conduciveto the correction of error, or (if I may state the point colloquially)that three heads are probably better than one.
It is I think evident that the same principle is in common-senseapplicable in relation to the lesser or incidental jurisdiction of an ElectionJudge to make a report that some person has committed a corrupt orillegal practice at a Parliamentary Election. Indeed the judgment inThambiayah’s case holds, by way of an obiter dictum, that s. 13 (3) (A) ofConstitution docs not render invalid that provision of Act Ko. 19 of 19JSwhich empowers Judges in appeal to render ineffective, and thus virtuallyto quash, such a report of a trial Judge in an election petition. Inrelation therefore to the power in appeal to reverse and replace thedetermination of a trial Judge, and to the power to quash the report of atrial Judge, the judgment is in accord with the principle of common-senseto which I am referring. But it seems to me, with the utmost respect,that the judgment failed to take that same principle into considerationwhen it pronounced that s. 13 (3) (/<) of the Constitution did notcontemplate the inclusion in the Elections Law of provision, empoweringJudges in appeal to report the commission of a corrupt or illegal practice,and declaring the incapacity for election to Parliament of a person soreported.
As already stated, the. Elections Law which was contemplated ins. 13 (3) (A) of the Constitution actually took the form of an Order inCouncil and that Order contained no provision for any appeal from the
H. X. G. FERNANDO, C.J.—David Perera t Peiris
221
determination of a trial Judge or for the making of a disqualifying reportupon an appeal. Had the Order actually contained such provision, I gravelydoubt whether any question of the validity of such a provision would everhave been raised. Indeed the first objection taken in Thambiayah’s casewas that the Election Order in Council is a part of the Constitution, andthat therefore Act No. 19 of 194S, which conferred the challenged right ofappeal from the determination of an Election Judge, was invalid on thoground that an amendment b}’ Parliament of that Order in Council mustbe passed in compliance with s. 29 (4) of the Constitution. This objectionwas summarily rejected on the ground thats. 29 (4) made it clear beyonddoubt that the Election Order in Council could be amended by an Actpassed by a simple majority of the House of Representatives. Sinces. 29 (4), which specifically deals with the power of Parliament to make laws,so clearly recognises Parliament’s power to amend the Elections Order byan ordinary Act, s. 13 (3) {h) must be construed consistently with theexistence of Parliament’s power, unless such a construction is excludedcither expressly or by implication. Act No._19 of 194$; i'n"providing foi-determinations and reports in election appeal, easily satisfies the “ pithand substance ” test-approved by the Privy Council in Attorney-Generalfor Ontario v. Reciprocal J}isnrers1 and inKodakan Pillaiv. Mudanayake2.If the original Election Order in Council properly included provisionsfor the qualifications of electors, for election offences, for thetrial of election petitions, for determinations as to the validity orotherwise of the election of candidates, and for incapacities arising byreason of reports of Election Judges, the pith and substance of the Orderwas not changed when Act No. 19 of 1948 added provision for appeals,and for determinations and disqualifying reports in appeal.
Let me now examine two statements of the Court in Thambiayah's case,upon which Counsel for the appellant has relied :—
..1 think that the provisions of the Ceylon (Parliamentary
Elections) Amendment Act, No. 19 of 1948, are in conflict withsection 13 (3) (A) of the Ceylon (Constitution and Independence) Ordersin Council, 1946 and 1947, in so far as those provisions make the reportof the Supreme Court operate as a ground of disqualification. What isthe result of that conflict ? Is the Ceylon (Parliamentary Elections)Amendment Act, No. 19 of 1948, invalid as it has not been passed inaccordance with the proviso to section 29 (4) of the Ceylon (Constitutionand Independence) Orders in Council, 1946 and 1947 ? Or it is invalidonly in so.far as the offending provisions arc concerned ? ” . . .
" . . . There is another way of looking at these "offendingprovisions”. It was possible, in accordance with my views on thefirst preliminary objection of the respondent, for the Legislature tohave amended section 78 of the Ceylon (Parliamentary Elections) Orderin Council, 1946, by inserting a new definition of "Election Judge” soas to include the body of Judges hearing an appeal under the newsection S2A, and such an amendment need not have been passed in* {1924) A. <7. 328.* (1953) 54 N. L. R. 433-
l»*1 6953 (11/69)
22 2
H. N. G. FBRNANDO, C.J.—David Pcrcra v. Petris
accordance with the proviso to section 29 (4) of the Ceylon (Constitutionand Independence) Orders in Council, 1946 and 1947. If that wasdone, the second preliminary objection could not have succeeded . .
The second statement means that when Act No. 19 of 194S inserted inthe Elections Order provision for a disqualifying report in appeal, thatreport could have been equated to the report of an Election Judgementioned in s. 13 (3) (h) of the Constitution by means of some definitionclause contained in the same Act. There is here a concession thatParliament had power by an ordinary Act to make provision for a dis-qualifying report in appeal, which is virtually a concession that the pithand substance of such a provision does not conflict with the Constitution.This concession exposes the incorrectness of the first statement which iscited Cir bore.
Such a definition clause as is contemplated in the second statementwould merely express in clear terms Parliament’s intention to equate thereport in appeal to the report of an Election Judge. But paragraph (6)of s. 82 D (2), which was contained in Act No. 19 of 194S, sufficiently.manifests that ver}' intention, when it provides that each such report willinvolve identical incapacities.
I adopt the opinion of the trial Judge in the instant case that the firststatement cited above from Thambiayah’s case was obiter. I observe inthis connection that the attention of the Court in that case was apparentlynot drawn to the principle that a Court will not pronounce upon theconstitutional validity of a Statute unless a decision as to validity isessential for the purposes of the case actually before the Court. I wouldrefer in this connection to statements in decisions of the AmericanSupreme Court, which arc cited in the judgment of this Court in TheAttorney Generalv. K odes war an,J.
Thambiayah’s case did not render necessary a pronouncement as to thevalidity of a report made by Judges in appeal under the Elections Law.Had the Court been aware of the principle just discussed, its judgmentshould have been that the provision for appeals in Act No. 19 of 1948 was'valid and severable, even on the assumption that the provision for areport may have been invalid.
For these reasons, I hold that the pronouncement in Thambiayah’s caseupon which Counsel for the appellant has so strongly relied was madeboth obiter and per incuriam . That being so, it is not. necessary toexamine Counsel’s further proposition that, when the Supreme Court hasonce declared a provision of an Act of Parliament to be ultra vires ofParliament’s legislative power, the Court must not again review thecorrectness of its previous declaration. But I feel compelled to offersome general observations concerning this proposition. It is contrary tothe attitude of the United States Supreme Court, which has on severaloccasions departed from precedent in order to uphold the validity of
J (/0G7) 70 N. L. JR. cl p. JOS.
SIRIMAXE, J.—David Pcrcra v. Peiris
223
Statutes. It implies that this Court must stubbornly adhere to previouserror, even if the rule of stare decisis docs not prevent review of a formerdecision. If accepted, the proposition will tend to place the Judiciary ina position of obstructive opposition to the Legislature, which is not theposition which the Judiciary in my understanding occupies under ourConstitution. Lastly, Counsel could cite neither case Jaw nor the opinionof any text-writer in support of it.
For these reasons I am in agreement with the conclusion of thelearned Election Judge that the report of the Supreme Court published inthe Gazette of 2nd July 19G7 was valid and effective, and that by reasonthereof the appellant was at the time of the bye-election held on 23rdSeptember 1967 disqualified for election as a Member of Parliament. Thedetermination of the learned Judge that the election of the appellant wasvoid is according^ affirmed, and this appeal is dismissed with costs.
Sirimane, J.—“ – .
The respondent-appellant in Election .Appeal No. 3 of 1967 (DavidPerera), whom I shall refer to as the •‘respondent” tliroughout thisjudgment, was first elected as the Member of Parliament for Bandaragamaat the election held in March, 1965: A petition challenging his electionwas dismissed by the Election Judge, but in appeal the Supreme Courtunseated him, on the ground that he had committed a corrupt practicein that one of his agents had made a false statement concerning the .character of an opposing candidate. In accordance with the procedureas set out in section S2C (2) (6) of the Ceylon (Parliamentary Elections)Order in Council, Chapter 3S1 (as amended) the Supreme Court sent areport to the Governor-General.
At the bye-election, which followed, the respondent contested the seatagain and won, when the present petition was filed alleging that he wasdisqualified from contesting the seat in view of the report.
The question that arises in the first appeal is whether the learnedElection Judge was right in holding that the report was effective todisqualify- the respondent under section 13 (3) (h) of the Ce3'lon(Constitution) Order in Council, Chapter 379, which I shall refer to as the“ Constitution ”.
Section 13 (3) (h) reads as follows :
” A person shall be disqualified for being elected or appointed as aSenator or a Member of the House of Representatives or for sitting orvoting in the Senate or in the House of Representatives—if by reasonof his conviction for a corrupt or illegal practice or by reason of thereport of an Election Judge in accordance with the law for the timobeing in force relating to the election of Senators or Members ofParliament he is incapable of being registered as an elector or of beingelected or appointed as a Senator or Member as the case may be
2 24
SlHI.MANE, J.—David Percra v. Pciria
It will be seen that the report of the Election Judge must be “inaccordance with (he law for the time being in force relating to the electionof Senators or Members of Parliament. ’*
At the time Section 13 (3)(7t) was enacted, there was no appeal froman order of an Election Judge who was also a Judge of the SupremeCourt. Thereafter our legislature provided for an appeal from the orderof an Election Judge to a Bench of three Judges of the Supreme-Court{Section S2A of Chapter 381).
I find it difficult to accept the argument that the use of the words
election judge ” in Section 13 (3)(h) of the Constitution had the effectof preventing Parliament from passing laws which, for example, providedfor an appeal, and a report by the Judges who hear the appeal—unlessthe Constitution was also amended. In my view the words “ electionjudge ” in the section must bo construed to mean the Judge or Judgeson whom the legislature reposes the responsibility of deciding an electionmatter, and sending a report in accordance with the law for the timebeing in force. The disqualification is not to be found in Section 13 (3){/i)but as in Section 13 (3)(e) (bankruptcy) and Section 13 (3)(g) (unsoundnessof mind) has to be looked for elsewhere in the law.
In arriving at this conclusion. I have given my anxious considerationto the decision of this Court in Thambiayah v. Kulasingham l. That wasthe first appeal after the amendment (Act No. 19 of 194S) permitting anappeal from the decision of an Election Judge. It was the person whowas unseated by the Election Judge who appealed in that case. Apartfrom the question whether the appellant in that case was disqualifiedon account of an alleged contract with the Crown, the Court had todecide whether the legislation relating to an appeal from the order of anElection Judge was infra vires the legislature. The question whetherthe Judges in appeal could send a valid report under the amended law.did not directly arise on the facts of I hat case. It was held, however, thatthe provisions of the amending Act No. 19 of 1948 in so far as theyrelate to a report were ultra vires. Wijcyewardene, A.C.J. said, in thecourse of his judgment, at page 35 :
S! A difficulty arises, however, when wc- proceed to consider the casethat may arise under the- new sections 82(c) and S2(d) where the decisionof the Supreme Court in appeal sots aside the report of the Election• Judge .that a- person is not guilty of corrupt or illegal practice and theSupreme Court sends its own report finding such a person guilty. As ’I am of opinion that the term Election Judge means the Judge whotries an election petition, I think that the provisions of the Ceylon(Parliamentary Elections) Amendment Act No. 19 of 191S arc inconflict with section 13 (3)(/t) and Ceylon (Constitution and Indepen-dence) Orders in Council, 194G and 1947 in so far as those provisionsmake the report of the Supreme Court operate as a ground ofdisqualification. ”
1 (191S) 60 2s. L. 11. 26.
SIRIMAXE, J.—Davitl Pcrcra v. Petris
22,
He wont on to say (pago 37) :
“ In the case before us I have found that tho provisions of theParliamentary Elections (Amendment Act) No. 19 of 1948 relatingto a report- by the Supreme Court so far as it embodies the findingthat a corrupt or an illegal practice has been committed was notduly passed by the Ceylon Parliament. Those provisions were,therefore, ultra vires ”
But in an earlier passage, the learned Judge said,
“It was possible for the legislature to have amended
section 7S of the Ceylon (Parliamentary Elections) Order in Council.1946, by inserting a new definition to “Election Judge” so as toinclude the body of Judges hearing an appeal under the new sectionS2 (a) and such amendment need not- have been passed in accordancewith the proviso to section 29 (4) of the Ceylon (Constitution andIndependence) Orders irf Council, 1946 and-1947.-”— — .
One gathers from this passage that the learned Judge did not consideran amendment to section 13 (3) (h) of the Constitution which requires atwo-third majority in Parliament, to be necessary ; but mere]jr thatthe language in the Parliamentary (Elections) Amendment Act was notsufficiently precise. After hearing the arguments of learned Counsel onthis question, I am persuaded to take the view that the finding inThambiayah's Case that a report by the appeal Judges is ultra vires, wasunnecessary for deciding the questions which arose in that case.
The learned trial Judge has very carefully gone into this question,and I respectfully agree with his conclusion that the dicta relating tothis question were obiter, and the respondent’s appeal must, thereforebe dismissed.
In the second appeal* the petitioners pray that the candidate whocame second be declared elected. That candidate obtained 18,372 votesas against 23,840 cast in favour of the respondent. This application ismade on the allegation in the petition that all the votes cast for therespondent “ were thrown away and null and void ”. Section S5 ofChapter 3S1 provides for votes to be struck ofF at a scrutiny, and section85 (1) (/) relied on by the petitioners reads as follows :
85 (1) “ On a scrutiny at the trial of an election pet ition the followingvotes only shall be struck off, namely :
(/) votes given for a disqualified candidate by a voter knowingthat the candidate was disqualified or the fact causingthe disqualification or after sufficient public notice of thedisqualification, or vhen the disqualification or the facts causing itwere notorious. ”
• Tho judgments of Febna.vdo, C.J., and WeeramAxtby, J., in the“ second appeal ” (Election Petition Appeal No. 2 of 1968) appear at pp. 234 *.t seq.(infra)—Ed.
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SIRIMANE, J.~David Perera v'. Peiria
The fact that a report had been sent by the Appeal Court was publishedby the petitioners. So that the voters must be presumed, to have beenaware of that fact. But, admittedly, the respondent gave as muchpublicity to the judgment in Thambiayah v. Kulasingham referred toabove. So that the voters were aware of that fact as well. The appealJudges who sent the report were not required and did not express anyview as to whether their report was an effective one. There was thensection 13 (3) (h) of the Constitution, and the only decision of theSupreme Court on the point was Thambiayah’s case.
'
The vote, now is looked upon as a very cherished right-. Since the
granting of Independence our voters have begun to realize its importance,•and its value. They attend many meetings which are held in supportof the different candidates, read and consider the statements in themanifestoes and pamphlets which are Issued at election time, before theydecide to cast their votes for the candidate of their choice. Unlike in thecase of an opinion on a question of law expressed by a candidate or hissupporters, or even by lawyers, however distinguished, a voter, as arule, pays the highest respect to a judgment of the Supreme Court.To him, such a judgment lays down the law as authoritatively as anenactment by the legislature itself. The decision in Thambiayah’s casewas prominently placed before the voters.
It was against this background that the majority of the voters of thiselectorate voted for the respondent.
It is my very firm view that before a voter can be said to have castaway his vote, the Court must be convinced, that in %*oting for a particularcandidate, he was being wilfully perverse. Hals bury (Simond’s Edition)Volume 14 at page 305, says :
“ Votes given for a candidate who is disqualified nia3r in certaincircumstances be regarded as not given at all or thrown away and forso deciding a scrutiny is not necessary. The disqualification must befounded on some positive and definite fact existing and establishedat the time of the poll so as to lead to the fair inference of wilfulperverseness on the part of the electors voting for the disqualifiedperson. ”
The facts must clearly show that the voter who had knowledge of anundoubted disqualification, acted obstinately or in wilful defiance of awarning that a. reasonable person should have heeded. The knowledgemay be imputed when the disqualification is published, or is notorious ;but there should be no doubt about the disqualification itself. 3'hepossibility that the law tis interpreted by the Supreme Court may bedissented from, should not deter an elector from casting his vote for thecandidate of his choice.
Whether a voter can be said to have cast away his vote or not, mustdepend on^he facts of each case, and the facts here are very differentfrom those in an}- other decided case.
SIRIMAXE, J.—David Pcrera v. Peirie
227
In tlic old case of Queen v. The Mayor, Teukesubury} at an election ofTown Councillors, there were four vacancies and five candidates. B.,one of the four who had a majority of votes was the Mayor and acted asReturning Officer and was, therefore, incapable of being elected. Itwas held that mere knowledge on the part of the electors who voted for Bthat he Avas the Mayor and Returning Officer did not amount to knowledgethat he AA-as disqualified in point of law as a candidate. Blackburn, J.said :
“ Voting for a dead man or for the man in the moon arc expressions.showing that in order to make the vote a nullity, there must be wilfulpersistence against actual knowledge. But it does not seem to meconsistent with cither justice or common sense, or common laAv, to.say that because these voters were aware of a certain circumstance,they Avere necessarily aware of the disqualification arising from thatcircumstance, and that, therefore, their votes are to be considered asmere nullities. ”
I am aware that this decision has not been folloAved by distinguishedJudges in later cases ; for example, in Drinkicaler v. Dean kin. But withthe utmost respect I think that the words of Blackburn, J., quotedabove arc applicable to the facts of this case.
In Drinkicaler v. Deakin,2 one of the candidates, Colonel Deakin, onthe day of nomination, jjermitted his tenants to kill rabbits on his estatefor the purpose of influencing their votes. He Avon the election and wasunseated on a petition against him. But the seat AAras not given to thenext candidate (Drinkwater) as the incapacity had not been ascertainedat the time of the election. This case is direct authority for the propositionthat bribing by a candidate at an election, though it renders his electionvoid if he be found guilty on petition, does not incapacitate the candidateat that election in the sense that the votes given for him by A'oters withknowledge of it %vere thrown away. No disqualification arises in thatsense of the term until after the candidate has been found guilty ofbribery.
Lord Coleridge, C.J. referring to the votes cast for Colonel Deakinsaid :
" Invalid upon proof of his bribe:y, for the purpose of seating himthey are ; throA*n aAvay for the purpose of seating his opponent in myopinion, they are not. ”
In the course of the argument in that case, Coleridge, C.J. also said :
“ In the CHtheroe case the committee made a special report on thissubject, pointing out the unsatisfactory state of the law and theconflicting nature of the authorities. They elected to follow the caseswhich point to the conclusion that to give effect to the notice, the
* (1961) 3 A. E. R. 375.
1 (1S67) 3 Q. B. D. 629.
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SIRIMANE, J.—David Perera v. Peiris
disqualification must be founded on some positive and definite fact existing' and established at the time of the polling, so as to lead to the fair inferenceof wilful perverseness on the part of the electors voting for the disqualifiedperson. I believe that view has ever since been followed …”
He also said :
“ Under the same principle may be classed cases where the disquali-fication was infancy such as was Claridge v. Evelyn, a want of estateas in the Belfast case, the Tavistock case and some others. The* cases of a woman, of an alien under the old law, of a convicted felonstand upon the same footing. In all these cases something 13 wantingin the candidate himself which cannot be supplied, the existence ornon-existence of which is not dependent on argument or decision, butwhich the law insists shall exist in every one who puts himself forwardas a candidate. ”
In Beresford Hope v. Lady Sandhurst1 the voters cast their votes for awoman, and a woman was not qualified to seek election according to thelaw as it stood then. She was unseated and the seat given to the nextcandidate. Stephen J. said :
" In the first place it was admitted that all those who voted for LadySandhurst knew that she was a woman. In the second place it wasshown to our satisfaction that the question whether as a woman, shewas incapacitated from election was a subject of common publicdiscussion at the time and place of her election. It was not provedspecifically that notice was given to the individual vote.s. We think,however, that it must be taken that the fact which,, if we are right,constituted the disqualification was known to all, and that the voterswere also aware that the legal consequence might, though they maynot have been aware that it actually did, constitute disqualification.The question whether in such a case the voters voted at their peril orwhether there should be a new election is not altogether clear. ”
He then went on to examine the case of Gosling v. Veley,2 and quotedwilh approval,, the following dicta in that case :
"But if the disqualification bo of a sort whereof notice is to bopresumed, none need expressly be given-; no one can doubt that, ifan elector would nominate and vote only for a woman to fill the officeof Mayor or Burgess in Parliament, his-vote would be thrown awaythere the fact would be notorious and every man would bo presumed toknow the law upon that fact. ”
In i?e Bristol South-East Parliamentary Elections3 votes cast for a peerwere held to have been thrown away.
'(1880) 23 Q. 3. D. 84.*(1847) 7 Q. 3. 406. ,
* {1961) 3 A- B. JR. 354-
SIRIMAXE, J.—David Pcrcra r. Ptiris
il'J
It seems to me that in the last two cases referred to above, there wasno real doubt regarding the disqualification itself, but the voters merelyjoined their candidate in demonstrating their disapproval of an existingstate of affairs.
The question as to when votes should be looked upon as cast awaymust, as I said, depend on the facts of each case. Different views havesometimes been expressed on somewhat- similar facts.—but I think thatthe law lias been fairly summarized b}' Parker in Election Agent andReturning Officer, Gth Edition, at page 156 :
“ If the alleged disqualification be disputed or denied, thatcircumstance has in one case (Leominster, Hog. 1202) apparently beentreated as immaterial, but in another (2nd Cheltenham, 1 P.R. <fc D. 23S)as of great- importance. So, where the disqualification^ is not clear,but doubtful, and depends on argument and decision as to the effect ofcomplicated facts and legal inferences, the decisions of the old electioncommittees arc conflicting. Some committees held that if thedisqualification did in fact exist at the election, the decision establishingthe disqualification related back to the time of election, and nullifiedthe votes given thereatafter noticeof the disqualification, on the groundthat every man is bound to know the law ; and. therefore, when apprisedby notice of the fact creating the disqualification of the candidate forwhom he voted, his vote was given at his own risk, and if he werewrong in his construction of the law, he could not plead ignorance ormistake and upon these grounds they seated the candidate next on thepoll. Other committees observed the distinction, and where thealleged disqualification was disputed,and was not clear but doubtful,they, while unseating the disqualified candidate, yet declined to givethe seat to the qualified candidate. The law in such cases has notyet been declared by the election judges, but it must be rememberedthat the words in the 2nd Clitheroe case, “ that the disqualificationmust be founded on some positive and definite fact existing andestablished at the time of polling ”, have been approved and followednDrinkicaler v. Deal in ; and that theL.C.J., in that case seems to doubtwhether votes are thrown away where the disqualification depends onan uncertain or obscure legal question or that in such a case avoter gives his vote at his own risk and on his own responsibility.It has also been said that to hold the contrary, is to place eachindividual elector in a position of hardship and difficulty, if upon themere assertion of an opposing party that a disqualification exists, thetruth or falsehood of which the voter may have no means ofascertaining, he is to exercise his franchise at the risk of his votebeing thrown away, if on subsequent investigation the existenceof that disqualification should be established. It is submitted,
230
SIRIMAXE, J.—David Perera v. Peiris
therefore, that a disqualification depending upon a novel question,or one of doubt or difficulty, or upon legal argument and decisionupon complicated facts and inferences does not cause votes to beso thrown away as to seat the opponent on a minority of votes. ”
To my mind a voter who casts his vote for a particular candidate,on the faith of a judgment of the Supreme Court, is in a different positionfrom one who docs so on his own interpretation of the law, or theinterpretation placed upon it by his lawyers.
At the time the voters went to the poll, Thambiayah’s case referredto above laid down the law on this point.
After much legal argument and discussion, we have taken a differentview. But, in my opinion, that is not a ground for holding that themajority of the voters of Bandaragarua threw away their votes andthat this electorate should, therefore, be represented in Parliament,not in accordance with the will of the majority but against it. Suchan unwholesome result should follow', only if it is clear that the votershave acted perversely or in a spirit of defiance, where there is no realdoubt about the disqualification itself.
I would, therefore, affirm the decision of the learned trial Judge onthis point as well. I agree with his conclusion that the candidate whocame second is not entitled to this seat.
Before X leave this judgment there is one other matter to which Iwould like to refer. Learned Counsel for the respondent submittedthat when the seat was claimed for the candidate who came second theother candidate who came third should also have been made a respondentto these proceedings, and that the failure to do so should result in thepetitioner’s claim to seat the second candidate being dismissed.
Under rule S in the third schedule to Chapter 3SI only a respondentin a petition may lead evidence to prove that the election of such aperson was undue, and in such a case he should file his list of objectionssix days before the trial. The best way of affording a candidate anopportunity'- to do this is to make him a respondent to the petition.Pfe may perhaps make an application to be joined as a respondent,but the rules are silent on this point, and in the absence of an expressjirovision, such an application may not be favourably considered. Butthat procedure may have been attempted if the third candidate in thiscase had really, something to say, and I do not- think that in thecircumstances of this case the petitioner’s claim to scat the secondcandidate should be denied on this ground alone. But I would like tostate that when a seat is claimed for a candidate by an order of a Courtagainst the will of the majority of voters as reflected in the ballot, the
SIKIMANE, J.—David Ptrcra r. Pciris
231
conscience of the Court must be satisfied that such a candidate is himselfinnocent of any election offence. It is, therefore, very desirable 1 hat-all the candidates should be made parties to the petition.
The respondent could have filed his list of objections, and Counselfor him urged that he be now given an opportunity of doing so, as therehad been some misunderstanding at the trial.
The learned Judge and Counsel for the parties appear to have hadin mind the right of the respondent to show that the second candidatewas himself disqualified, but they appear to have thought that thisneed be done only if the Court- was of the view that the second candidatewas entitled to claim the seat. The proceedings show that there hadbeen an agreement, that the two questions, whether the respondent-should be unseated, and if so, whether the second candidate is entitledto claim the seat, should be decided first, on affidavits filed by partieswithout evidence of witnesses being led. It was only if the secondcandidate was held to be entitled to the scat that the question whetheror not he was disqualified, was to be investigated. After the trial hadcommnyiced, the learned Judge had remarked to Counsel for thepetitioners,
“ That is why I indicated to 37ou earlier if, for instance, I am inclinedto agree with the submissions for the petitioners with regard to thesecond matter, then the necessity for evidence of corrupt practicecan be led by the respondent. ”
And, again, thereafter,
“ I understood in view of 3rour second submission that you areentitled to the seat, although 3rou were the unsuccessful candidate,the other side is entitled to maintain that 3rou are disqualified b3’'reason of corrupt practice
But, the failure to file a list of objections in accordance withrule S is an omission by the respondent, and I suppose he mustsuffer the consequences of his default even if there had been somemisunderstanding.
But, as I am of the view that the second candidate should not bedeclared entitled to the seat, it is unnecessary to discuss this matterany further. I
I would affirm the decision of the learned trial Judge on both points,and as each party has succeeded in part, I would make no order as tocosts.
Weeramaxtry, J.—I agree with My Lord the Chief Justice.
Appeal dismissed.