Kuruppu v. Beltiarachchi.
1948Present: Canekeratne J.
KUKUPPU, Petitioner, and D. F. HETTIAKACHCHI, el el.,Respondents.Election Petition No. 6 oj 1947, Nivitigala.
Election petition.—Objection £q ballot papers—Void for uncertainty—Duty of ReturningOfficer before declaring result—Decision final—Right to object on petition—Parliamentary Elections Order in Council, 1946—Section 49 (5).
Under the Parliamentary Elections Order in Council, 1946, a duty is cast onthe Returning Officer to examine the ballot papers before he declares theresult of the poll. When the Returning Officer look's at a ballot paper he is inan attitude of consciousness to it and if ho has counted it as a vote a Courtwould, in the absence of evidence to the contrary, come to the conclusionthat he has decided on the validity of the ballot paper : his decision is finalunder section 49 (6) of the Order in Council.
CAXEKERATXE J.—Kuruppu v. Heltiarachchi.
HIS was an election petition presented against the return of the1st respondent as member for the Nivitigala Electoral District,
at the election held on August 28, 1947.
Ar. E. Weerasooria, K.C., with E. B. Wickramanayake, Christie Sene-viralne, George Samarawickreme, and A. B. Perera, for the petitioner.
S. Nadesan, with Sylvan Fernando and Titus Goonetilleke, for the1st respondent.
T.S. Fernando, Crown, Counsel, with M. Tiruchelvam, Crown Counsel,for the 2nd respondent.
Cur. adv. vult.
April 30, 1948. Canekeratne J.—
The petitioner and the 1st respondent (Mr. Hettiarachchi) were twoof the candidates at the Parliamentary Election for the Nivitigala Electo-ral District, on August 28, 1947. The 2nd respondent is the ReturningOfficer, for the district. The 1st respondent was returned as being electedby a majority of 24 votes, the numbers being 5,626 votes for him and forthe petitioner 5,602 votes. The petitioner’s case, as it appears in thepetition and particulars, is that the election of the 1st respondent oughtto be held bad on account of breaches of the law relating to Parliamentaryelections which the petitioner alleges to have been committed. Theprincipal grounds were delivery of ballot papers which were not stampedor perforated with the official mark, (which may be called the firstground), the number of voters to whom ballot papers were issued andmarked in the Register of Electors not corresponding with the totalnumber of voters declared by the Returning Officer to have voted atthe election, (which is referred to hereafter as the second ground), ballotpapers which were unmarked or void for uncertainty being counted asvalid votes, (which may be called the third ground), votes of persons whocommitted personation should be struck off and the tendered votescast for the petitioner be added to the poll, (which is referred to hereafteras the fourth ground).
At the trial of this petition, not less than 1,256 votes were objected toon one side or the other—of these, 589 were votes for the 1st respondentand 667 for the petitioner. Shortly after the commencement of the trialthe objections to 254 were abandoned by the petitioner and to 278 bythe 1st respondent. Twenty of the remaining votes—of these 6 werevotes for the 1st respondent, and 14 for the petitioner—were objectedto on the ground that the ballot papers on which such votes were givenhad no official mark. It was common ground between the parties thatone vote cast for another candidate had been counted for the 1st res-pondent and six votes cast for the 1st respondent had been counted forthe petitioner. After the cross-examination of the, 2nd respondentwhom he called as a witness, Mr. Weerasooria informed the Court that -he would not proceed with the second ground as all the presiding officershad not been summoned or with the fourth ground as the total numberof tendered votes would not affect the ultimate result of the case. . The
CANEKERATNE J.—Kuruppu v. Heltiarachchi.
whole dispute then between the parties on the first day was whether theremaining 328..votes cast for the 1st respondent and the 369 votes castfor the petitioner were invalid. These votes may be divided into twogroups—where the cross is placed immediately upon the symbol attachedto the candidate and where a mark, e.g., a cross, a line, is not so placed.There were 102 ballot papers of the 1st respondent and 13 of the petitionerfalling within the former group.
A voter can only record his vote upon a ballot paper provided for himby the presiding officer (or his agent) and handed to him in the pollingstation. The form of such ballot paper is prescribed by the Order inCouncil—section 40 (2) and Form 1. It is to be attached to a counterfoil.The front or face of the ballot paper must contain a list of the candidates,showing their names and arranged alphabetically in English in the orderof their surnames or ge names, and the symbol allotted to each candidateprinted opposite his name. The second parallelogram of the ballotpaper contained the name of the 1st respondent, his symbol an elephantand the voting space. The first step for a voter to take is to apply athis polling station for a ballot paper. Before, however, a ballot paper isdelivered to an intending voter, it is required by section 42 (2) that it bestamped on the back or perforated with the official mark. The dutyso to mark or perforate or to see that a ballot paper is so marked orperforated before it is delivered clearly lies on the presiding officer.On receipt of the ballot paper the voter shall go into one of the placesset apart and there secretly mark his paper and fold it so as to concealhis vote, and then put his ballot paper so folded up into the ballot box,and quit the polling station (sub-section 3). One of the directions inthe second schedule requires that the voter shall place his ballot paperin the box “ after having shown ” the official mark at the back to thepresiding officer. – In the box, therefore, the backs alone are exposed.By section 48 (4) before the Returning Officer proceeds to count the votesin the presence of such of the candidates and their counting agents asattend, he is required to open each ballot box and take out the paperstherein, and mix the whole of the papers in the boxes together ; to dothis he must of necessity see the papers folded with only the backsexposed as they were placed in the box. Sub-section 4 also requires theReturning Officer, while counting the. votes, to keep the ballot paperswith their faces upwards and take all proper precautions for preventingany person from seeing the numbers printed on the backs of such papers.In order to fulfil the requirements of this rule it is absolutely necessarythat the folded papers should be opened in order to expose their faces.It is his duty to count the votes and the first paragraph of sub-section 1of section 49 expressly enacts that he shall not count any ballot paperwhich is not stamped or perforated with the official mark and that aballot open to this objection shall be invalid.
Mr. Weerasooria contended that a ballot paper, (1) on which voteswere given to more candidates than the voter is entitled to, or (2) whichis void for uncertainty, was void and must not be counted (sub-section 1,b, and e).
The form of the mark is, in the absence of evidence of collusion orprearrangement, immaterial. The main consideration is to ascertain
CAXEKERATNE J.—Kuruppu v. Hettiarachchi.
whether the voter has by any mark indicated for whom he intended tovote ; and if such a mark exists within the candidate’s compartmentof the ballot paper, the vote may be held good whatever be the shape orinstrument by which the mark is made. But when the mark is so placedas to render it impossible to decide for whom the vote was intendedto be given the ballot paper must be rejected. If the only mark on aballot paper is a cross made immediately upon the name of one of thecandidates in such a way as to make it appear possible that'the voterintended to strike out the name the ballot paper is void for uncertainty.
Mr. Weerasooria’s contention was that the same rule is applicablewhere the only mark was a cross made immediately upon the symbolallotted to the candidate. The symbol, he argued, is the distinguishingmark for those who are illiterate. A proper name is a mark whichone connects in his mind with the idea of the object, in order that when-ever the mark meets his eyes or occurs to his thoughts, he may thinkof that individual object ; it retains a meaning as a complex of soundsor letters and it serves to distinguish one object from the others in a row.The usual method employed is that of designating persons by a familyname and a Christian name—this is a case of a verbal name. Theremay be a symbolic name, as in Astronomy where both names, a verbaland a symbolic, are found. The respondents contended that the symbolhas not the same characteristics as the name of the candidate and thatit is only a description. Mr. Fernando further argued that the rules inthe second schedule were silent as regards the symbol and that the markhad to be placed on the space opposite the name of the candidate. Butthe language used in the Buies is different, it is a cross “ in thespace provided for the purpose on the right hand side of the ballot paperopposite the name of the candidate ”.
After Mr. Weerasooria had concluded his argument, I intimated toCounsel for the respondents that they should address me on the firstgroup of ballot papers. Counsel for the 1st respondent concluded hisargument and when Mr. Fernando had come almost to the end of hisargument the hearing was adjourned for the following day. The maincontention advanced by Counsel for the 2nd respondent on the secondday was a new one, that the Returning Officer had come to a conclusionon these ballot papers and that his decision was final (section 49 (5) ).This contention was directly challenged by Counsel for the petitioner.There is no decision, he said, where the parties have not been heard,where there was no inquiry into the validity of the ballot papers. Heurged that Counsel had by the procedure adopted agreed to relax the ruleand had thus waived the benefit of the section ; this also caused prejudiceto the petitioner. Parties may contract themselves out of their rights,but they cannot contract the Court out of its duty. As the first questiondoes not arise unless I am with the petitioner in his contention thatthere was no decision on the ballot papers on the day of counting, it willbe convenient to discuss that contention first.
The Returning Officer shoiild reject as invalid any ballot paper comingunder any of the five heads mentioned in section 49 (1) : he must endorseon the rejected ballot paper the word “ rejected The counting is toproceed continuously as far as practicable. The duty of a Returning
CANEKERATNE J.—Kuruppu v. Heitiarachchi.
Officer is upon the completion of the counting to declare that candidateelected who has received the majority of votes (section 48, 5, 7). Thedecision of the Returning Officer whether or not any ballot paper shall berejected shall be final and shall not be questioned on an Election Petition.What is the decision referred to ? It is whether a ballot paper shall berejected or shall not be rejected—if he determines that a particularballot paper is invalid that decision is final, similarly if he determinesthat it is valid. The duty is cast on him to examine the ballot papersbefore he declares the result of-the poll. He must keep the ballot paperswith their faces upwards whilst counting the votes and ascertain whetherthey are obnoxious to the provisions of paras. 6, c, d and c. His functionis to see whether they comply with the statute or whether there is anyobjection to them. When the Returning Officer looks at a ballot paper,he is in an attitude of consciousness to it, he attends to the object beforehim ; if his first impression would appear to be that the paper in questionseems to fall within one of the sub-heads of section 49 (1) he must showit to each candidate (or his agent) and hear what he has to say beforehe determines to reject it (49 (4) ). But he is under no such duty if hisfirst impression is that it is not invalid. Objection may, however, betaken by a candidate (or his agent) spontaneously to the validity of aballot paper, then he would make a decision in respect of that paper.The mind has to form a judgment. One finds oneself forced to thinkin a given manner in spite of an attempt to think otherwise. Wheneverthe mind entertains the possibility of an alternative which it is ultimatelydriven to reject there is a limitation of subjective activity. It is a casewhere one view is taken not one where a fact is simply given and accepted.The Returning Officer has to form the best judgment he can after lookingat the document and listening to any argument if it is proffered, otherwisewithout any such help. His jurisdiction to reject or admit a ballotpaper is rightly exercised although he has taken, if the contention of thepetitioner is correct, an erroneous view of the law with regard to Par-liamentary Elections. The result of his investigation cannot bechallenged. Internal evidence furnished by the form of the mark,its position, and the place where it is found in the impugned ballot papersshows that a question as to the validity of the majority of these paperswas probably present at the time of the counting of the votes. Furtherthere are some cases in which it is very likely that an objection was taken :in each of these the voter has marked a long cross, each line thereof,being partly in the square allotted to one candidate and partly in that ofanother candidate—in two cases partly in that of two other candidates.There is no evidence to show that the Returning Officer has not come toa decision as regards these votes. In the case of the unperforatedballot papers, on the other hand, the internal evidence leads to theconclusion that he could not have considered them with reference to part“ a ” of section 49 (1).
I am of opinion that the 1st respondent was duly returned as themember for Nivitigala Electoral District.
The question of costs is reserved.