WEERASINGHE v. CHANDANANDA DE SILVA COMMISSIONER OF ELECTIONS AND OTHER

012-SLLR-SLLR-1992-V-1-WEERASINGHE-v.-CHANDANANDA-DE-SILVA-COMMISSIONER-OF-ELECTIONS-AND-OTHER.pdf


WEERASINGHE
v.CHANDANANDA DE SILVA, COMMISSIONER OF ELECTIONSAND OTHERS
SUPREME COURTH. A. G. DE SILVA, J.
BANDARANAYAKE, J. ANDKULATUNGA, J.
S.C. ELECTION PETITIONAPPEAL NO. 1/89
30 MAY, 26 JUNE, 23 AND 24 JULY 1990
Election petition – Preliminary objection – Proportional representation -Distribution of seats to Digamadulia Electorate and election of successfulcandidate of the Sri Lanka Freedom! Party- Preference votes – Manner of votingand marking preference votes – Rejection of votes – Recount and scrutiny -Inspection of preference votes and relevant Sheets/Statements – Recount ofpreference votes cast – Parliamentary Elections Act, No. 1 of 1981, S. 63(2) -Constitution of 1978, Article 99 – 14th Amendment to the Constitution -Parliamentary Elections (Amendment) Act, No. 15 of 1988, Third Schedule andSs.37(1), 29(1)(f), 39(1), 47(2), 51, 53(1)(b) and (c), 57(7), 57(9), 60(1), 63(2),92( 1)(b), 112 – 98(c) – Concise statement of material facts – Official acts.
Porportional representation of the people in Parliament was introduced to theelectoral process by the Constitution of 1978. Article 99 provided for proportionalrepresentation with a single list of candidates from a party or independent group.Election to the House was to be in order of priority of the names set out in thenomination papers. The 14th Amendment to the Constitution replaced Article 99which, whilst retaining the concept of proportional representation by a party or
sc
77
independent group, introduced the voter’s choice in respect of a candidate of aparticular party or independent group, by a preference vote. The ParliamentaryElections (Amendment) Act No. 15 of 1988 provided the mechanism in theelectoral process for effecting proportional representation in Parliament. The thirdSchedule to .that Act was accordingly amended to enable a voter to express hispreference-tothe choice of a candidate. The third Schedule gives directions forthe guidance of a voter in voting more specifically in accordance with sections37(1), 39(1) and 53(1 Kb) and (c). For example every voter had one vote which hecould give to a-recognized political party or to an .independent group. Themanner of'vptirig was by marking the ballot paper with an ‘X’ on the right handside of the ballot paper opposite the name and symbol of the recognised party orindependent group of his'ohoice and also indicating his preferences for not morethan three candidates from among the candidates nominated by such recognisedparty or group by placing an T mark again on the cage enclosing the serialnumber corresponding to thehiitmber assigned to each candidate of hispreference.
The petitioner-appellant and the 32nd respondent were candidates in the S.L.F.P.candidate list. The petitioner-appellant had been assigned the serial number 9. Inthe distribution of seats based on the votes polled by the party or group, theS.L.F.P. won one seat of six seats of Electoral District No. 13 – Digamadulla. The32nd respondent having polled the highest number of votes from among theS.L.F.P. candidates was declared elected to that seat. The petitioner-appellantwas behind him by 76 preference votes. The petitioner-appellant alleged amiscount in that 642 preference votes cast for him had not been brought into theCourt on the ground that, the cross "X",mark had been placed outside the cagecontaining the numeral -9 assigned to him. Further in counting centres 13 and 15about 1,000 preference-votes over 'and. above the preference votes secured bythe 32nd resppn.deht.had been recorded in the analysis sheet as have beensecured, by the 32nd respondent. The .petitioner-appellant therefore wants arecount and the election of 32nd respondent set aside. This was done by the 47threspondent with the help of several counting officers.
Held :
When marking his preference for a candidate or candidates, the voter isrequired to place his mark "on the cage enclosing the serial numbercorresponding to the serial number assigned to each candidate”. This directionby its very nature is mandatory. Section 39(1) which states that the voter shallsecretly mark the .ballot paper as near as may be in accordance with thedirections can only mean one thing that when a voter is marking his preferencefor a candidate the cross must be placed substantially on the cage enclosingthe serial number as there is no other way when several caged serial numbersare packed one next to the other, of indicating with reasonable certainty apreference for a particular cage. It is to bring a substantial degree of certaintyinto the voting process that the 3rd Schedule in formulating directions has madethis difference as to where the mark should be placed in two situations; of votingfor a party or group aad. iatelr expressing a preference for a.particular individual ofthat party or group. Vtfhere the mark is placed in an open area to the right of thenumber it makes the vote quite uncertain and such a vote should be rejected asvoid and not taken into account.
Kulatunga, J. (dissenting):
The decision of the Election Judge refusing inspection when it is statedspecifically that the voter marked his cross completely outside the cageenclosing the serial numbers of candidates, his intention is not at all clear iscorrect.
Section 29(1) (0 enables the returning officer to do such acts and thingsas may be necessary for effectively conducting the election. Section 51 providesfor political parties and groups to appoint counting agents to attend on thecounting of votes. As a preliminary, the counting officer, in the presence of thecounting agents has to show the ballot paper account to them. He has to openeach ballot box and count the ballots inside each box in the presence of theagents. There is no prohibition against a counting agent taking his own notes.Whilst counting, ballot papers have to be placed upwards (enabling agents toobserve them and make their own notes if necessary). Again, in deciding whetherto allow a ballot paper to be taken to the count Or rejected, the counting officer isrequired to show it to the counting agents and hear their views before taking adecision. A necessary concomitant would be the counting agent can make hisobservation or objection to any particular vote being counted in any particularway and those objections or observations have to be recorded by the countingofficer. Thus in practice, the counting officer must necessarily keep a journalwhich reflects the events of the day, observations and objections taken (unlessnot recorded of consent) in the process of the count. The counting agent is not ahelpless passive spectator merely gazing at ballot papers.
It is no argument, in seeking to excuse failure on the part of an agent to ask fora recount to say that it would not have served any purpose. The complaint is oneof falsely adding votes to someone hot entitled to them. Such a vote can bechecked and properly counted at a recount. If the statement contained inflatedfigures the counting agent could have protested and brought it to the notice of theReturning Officer.
The petitioner in the first instance asks for an inspection. Before the Courtmoves there must be credible material before it. The particulars agitated by thepetitioner by his affidavit contain only bare allegations of misconduct by officialsassisting in the conduct of the election. Allegations alone are not sufficient to
satisfy a Court .that its.jurisdiction ought to be exercised. The petitioner has notclaimed in his affidavit that he requested those responsible for the Court to recordhis objections to the Court. The conduct of the petitioner or his agents in notmaking any contem'poraneous recorded protest on the. alleged misconductdeprives the petitioner and'his supporting affidavit of reliability on the fact of thecomplaint. Nor is there a complaint of bias against the petitioner or in favour ofthe 32nd respondent. No acceptable factual circumstances are before the Courtto suggest that official .acts were not properly done at this election. No interimorder for inspection pould therefore be made in the first instance.
The Court hlas' the power to dismiss an election petition in limine if therewas a failure to comply with a mandatory provision. Just as much as the publichave an interest in the election-petition there is also the principle that the electionof a candidate should not be Bghtly interfered with.
Section 98(c) requires a petition to contain “a concise statement ofmaterial acts on which the petitioner relies. But the petitioner has failed to placesuch material facts before the Election Judge in his petition for relief. In thecircumstances the Election Judge was correct in refusing inspection anddismissing the petition in limine.
Cases referred to:
Woodward v. Sarsons and Sadler (1875) LR 10 CP 733, 747 (CA).
Pontdarwe (1907) 2 K.B. 313!
Kaleel v. Themis 57 N.L.R. 396, 399,402, 405.
Rajapakse v. Kadirgamanathan58 N.L.R. 14.
West Bromwick (1911) 60 0’ M & H 257.
Bandaranaike v. Premadasa (1989) 1 Sri L.R.
Samar Singh v. Kedar Nath 1957 SM.Qi 663.
Arthur Hussain v. Rajiv Gandhi 1986 S.C.C. 313.
Kuruppu v. Hettiaratchy 49 N.L.R. 201.
APPEAL under Section 102 of the Parliamentary Elections Act, No. 1 of 1981read with Article 130(b) of the Constitution.
Faiz Mustapha. PC. with Manohara de Silva, M. S. M. Suhaid and G. Jayakodyiorappellant.
Asoka de Silva, D.S.G. with Kumar Arulananda S.C. for 1st and 2nd respondents.
E. D. Wickramanayake with Javid Usuf for 32nd respondent.
-.Cur adv vutt.
10th September, 1990.
BANDARANAYAKE, J.
This appeal is from the Judgment of the Election Judge dismissinga petition filed by the appellant in limine upon preliminary objectionstaken by the respondents to the hearing of. the petition. The petitionrelated to the results of the Parliamentary Election held on 15.2.89 -Electoral District Digamadulla. The petitioner-claims the right to havebeen returned or elected at the said election and was one of nine (9)candidates nominated by the Sri Lanka Freedom Party to contest theelection. There were six seats and oh the party votes the distributionof seats was as follows: (a) U.'INLP. – 3 seats, (b) S.L.F.P. – 1 seat, (c)T.U.L.F. – 1 seat and (d) S.L.M.C. – 1 seat. The appellant is notchallenging the distribution of seats among the respective parties orthe election of the candidates save and except the election of the32nd respondent who was himself amongst the candidatescontesting from the Sri Lanka Freedom Party.
The appellant challenges the election:of the 32nd respondent whowas declared to have secured 21,751 preference votes against theappellant who was declared to have secured 21,675 preferencevotes, the majority being 76 preference votes, on the ground that the32nd respondent’s election was undue and seeks the avoidance ofthe said election and a declaration that the appellant was dulyelected.
Two grounds were urged on behalf of the appellant that:-
642 preference votes in fact obtained by the petitioner-appellant were not brought into account on the ground that thecross (X) indicating the preference, had been placed outsidethe cage containing the numeral (9) in a blank area near thesaid cage (9), which was the number assigned to the appellant.The appellant further alleged that preferences indicated in asimilar manner outside the cage containing a numeral had beencounted for the 11th respondent;
(it) in counting centres (13) and (15) about 1000 preferencesover and above: the preferences actually secured by the 32ndrespondent had; been recorded in the analysis sheet as havingbeen secured by the 32nd respondent. It was alleged that thiswas done by the. 47th respondent in collaboration with othercounting officers at the two counting centres despite the verbalprotest of the appellant.
Thus upon the foregoing, the appellant sought the followingreliefs:-
a declaration that the election of the 32nd respondent wasundue;
a declaration that the appellant was duly elected.
Additionally, the appellant sought the following reliefs:—
an order for inspection in terms of s.63(2) of the■ Parliamentary Elections Act No.1 of 1981 permitting
inspection of tiie,preference votes of the SLFP candidatesand inspection pf,;the relevant analysis Sheets/Statementsof preferences-Sndcounting of same; and,
A security or recount’of the preference votes of the SLFPcandidates.
Proportional representatiorvof. the people in Parliament wasintroduced to the electoral process by.fhe Republican Constitution of1978. Article 99 provided for proportional’representation with a singlelist of candidates from a part or independent group. Election to theHouse was to be in order of priority of the names set out in thenomination papers. The 14th Amendment to the Constitution replacedArticle 99 which, whilst retaining the concept of proportionalrepresentation by a party or independent group introduced thevoter’s choice in respect of a candidate of a particular party orindependent group, by a preference vote. The ParliamentaryElections (Amendment) Act No. 15 of 1988 provided the mechanismsin the electoral process for effecting proportional representation in
Parliament. The Third Schedule to that Act was accordingly amendedto enable a voter to express his preference in the choice of acandidate. The Third Schedule gives directions for the guidance of avoter in voting. These directions in fact spell out the provisionscontained in Act No. 1 of 1981 dealing with the poll and the countingof votes and the declaration of results contained in Parts 3 and 4 ofthe enactment. More specifically, the Third Schedule containsdirections, in accordance with the provisions of s.37(1), s.39(1) ands.53(1)(b) and (c). For example, that every voter,shall have one votewhich he may give to a recognised political party or independentgroup and the manner in which he should mark the ballot paper; (i.e.)by placing a cross (thus ‘X’) on the right hand side of the bailor paperopposite the name and symbol of the recognised political party orgroup for which he votes; he may then indicate his preferences fornot more than 3 candidates from among the candidates nominatedby such recognised political party or independent group by placing across (thus 'X') at the bottom of the ballot paper on the cageenclosing the serial number corresponding to the serial numberassigned to each candidate; then fold it so as to show the officialmark on the reverse to the presiding officer and place the paper inthe Ballot Box and quit the polling station. Those directions also setout the circumstances under which a ballot paper should bedeclared void and not counted.
In respect of the first ground on which avoidance was sought (viz.)that 642 preference votes obtained by the appellant were not broughtinto the count for reasons given, it has been submitted on behalf ofthe appellant that even where a voter has placed a mark such as an‘X' completely outisde the cage, still; in order to ascertain the voter’sintention there must be an inspection of that ballot paper withoutwhich it is not possible for a Court to declare that a mark placedoutside the cage cannot be counted. It was urged, that the electionJudge’s finding that upon the averments in the petition itself that themark was placed outside the cage his intention is not clear and suchvotes were rightly rejected for uncertainty, is wrong in law. It wassubmitted that even when a cross (X) is marked completely outside acage in an open area of the ballot paper, still it could be taken intothe count provided the intention of the voter to cast his vote for aparticular person was clear. Directions to voters contained in theThird Schedule were merely directory. Section 39(1) only requires aballot paper to.be marked as near as may be in accordance with thedirections. In support of his contentions Counsel cited the following
Woodward v. Sarsons and Sadler (CA)<n
“…votes marked outside the cage and in some instances by aline or mark other than a cross were’held valid since upon avisual'examination of the vote the Court was of the view therewas a sufficient indication of the candidate”. Referring to thecorresponding 'provisions of the Ballot Act the Court held thatthe manner of voting was directory by that substantialcompliance was necessary.
Pontdarwe(2)
Held that a mark placed outside the ruled compartment was avalid vote provided that the mark is in such a position oppositethe name of the candidate as to leave no doubt.
Law and Practice of Election Petitions by Pandit NanakChand, pp. 231-234.
It would be convenient to deal with this first ground of avoidance atthis stage (i.e.) that the Election-judge was wrong in determining thatwhere a voter has placed a mark completely outside the cage, thatitself indicated that that vota-could not be counted in favour of thepetitioner because the voter’s.intention in such a situation was notclear and was properly rejected.^
The English Law provided rijles and forms for the conduct ofelections. The principles found in those rules were embodied into thelaw of Ceylon in the course of the franchise being made available tothe citizens of Ceylon. Non-observance or non-compliance with themmay have led to voidance of the election as being contrary to theprinciple of an election by ballot. We see therefore prior to the 1978Constitution, a great similarity between the rules of the English Lawand the Sri Lankan Law in regard to how a voter should cast hisballot. The 1978 Constitution brought a change in the mode ofrepresentation of the people in Parliament. As already mentioned, at
first the concept of representation in Parfiament being madeproportional to the number of votes cast for a political party orindependent group in an electoral district as distinct from the earlierprocess of a candidate being directly elected to a seat in Parliamentby direct vote in a constituency was introduced. This meant that thenuts and bolts process of indicating a voter’s choice of party or groupdid not need to depart from the earlier established process ofindicating a vote for an individual. Thus we see a similarity in thedirections given as to how to vote – a similarity between the EnglishLaw and the Ceylon (Parliamentary Elections) Order in Council 1946and the 3rd Schedule to Act 1 of 1981 as it first stood spelling out theprocess of election to Parliament in conformity with Chapter XIV ofthe Constitution . . . “A voter shall place a cross on the right handside of the ballot paper opposite the name and symbol of therecognised political party or independent group …” This is what hadobtained under the earlier Law in Sri Lanka.
Form 'C' of the 1981 Act giving the form of the front of the ballotpaper shows each political party and symbol listed in separatecompartments shown by ruled lines, each such compartment placedone below the other. In this situation the mark is required to be placedon the right hand side opposite the name and symbol shown. In thisway when a mark is placed in line with any one of the compartmentscontaining names of parties and symbols or on the name or on thesymbol one can envisage that the voter’s intention has beensufficiently clearly expressed. That is what has happened in theEnglish cases cited as can be gleaned from the body of thejudgments in these cases, to wit: in the case of Woodward v. Sarsons(supra) at p. 747. – Schedule 2 "Form of Ballot Paper” … the votershall place a cross on the right hand side opposite the name of eachcandidate for whom he votes thus …” It is seen that the English ruleis almost identical with our rule as was contained in s.42(7) and the2nd Schedule to the Ceylon (Parliamentary Elections) Orderin Council 1946 and followed in the 3rd Schedule to Act No. 1of 1981. But we are dealing here with another situation, namely,indicating the voter’s preference for a candidate or candidates ofhis choice of the same political party or group for whom he hasvoted up to a limit of three brought in by the 14th Amendmentto the 1978 Constitution. Such a process is not availablein England. The directions given in the 3rd Schedule as amended byAct No. 15 of'T988 in respect of marking the preference for acandidate or candidates upto a maximum of three is different to thedirections given for marking the voter's preference for a political partyor independent group. The difference is this – that when marking thepreference for a candidate or candidates the voter is required toplace his mark “on the cage enclosing the serial numbercorresponding to the serial number assigned to each candidate”.This direction by its very nature is mandatory. He is not permittedto place his mark beside a number in an open spaice on a side of theballot paper for the obvious reason that that wouldTead to vaguenessand uncertainty. The number of candidates.Jaken together may bevery large (in the instant case. 36) and they are given serial numbersand those serial numbers are placed individually in cages innumerical order, for example from 1 – 50. Form ‘C’ shows that thenumber 1 – 50 are contained in 50 cages, there being 10 such cageson each line and we have five lines one below the other each linecontaining 10 numbers in 10 cages. In such a situation the directionrequires a mark to be placed on the cage enclosing the serialnumber and it is apparent that that had been intended to bring abouta substantial degree of certainty in indicating the voter’s choice.Section 39(1) which was relied upon by Counsel for the appellant andwhich states that the voter shall secretly mark the ballot paper asnear as may be.-in accordance with the directions can only mean onething in thfecpntext'Mat when a voter is marking his preference for acandidate thkt cross must be placed substantially on the cageenclosing the serial number aslhere is no other way when severalcaged serial numbers are packed one next the other of indicatingwith reasonable certainty a preference for a particular cage. It is tobring a substantial degree of certainty into the voting process that the3rd Schedule in formulating directions has made this difference as towhere the mark should be placed in the two situations; of voting for aparty or group and later expressing a preference for a particularindividual of that party or group. For these reasons the English casescited have no relevance and could be distinguished. The appellanthas in his petition before the Election Judge marked as ‘P1 ’ aspecimen of a ballot paper and the petitioner had contended thatmarking a cross (X) to the right hand side of caged serial number (9)in an open area in the manner demonstrated by him indicates that the
voter intended to vote for number (9). There are .in fact 8 othernumbers from No. 1 to No. 8 in eight cages on the same line. My ownobservation in regard to ‘P1’ and the mark-placed by petitioner’s• Counsel to the right of number 9 in an open :area is that that markplaced in that manner makes that vote quite'uncertain and such avote should be rejected as,; void and not taken into account. Thedirections as to the manner-in which a voter should-mark hispreference .of a candidate or .Candidates as, contained in the 3rdSchedule appears to me to. set out a uniform principle so as to makecertain to the Officers-engaged in cohductirfopa poll the intention ofthe elector. This Court haS‘fo'fnterpret,the provisions of the statute soas to bring about substantial; certainty to the process of determiningthe elector's choice. Learned Counsel, for the 32nd respondent hassubmitted that the illustration contained in ‘P1 ’ submitted on behalf ofthe appellant is a clear argument that a counting officer would beright in rejecting such a vote for uncertainty. I am inclined to agreewith this submission.,-;u
For the above reasons I hold that the depipbn of the ElectionJudge refusing inspection when it is stated specifically that the votermarked his cross completely outside the cages enclosing, the serialnumbers of candidates his intention is not at all clear is .correct. Sucha vote should be rightly rejected for uncertainty and I uphold thedecision of the Election Judge on this point.
I now turn to the second ground relied .upon by the appellant tostrike down the election of the 32nd respondent (i.e.) that in countingcentres Nos. 13 and 15 about 1000 preferences in excess of what the32nd respondent actually secured has been recorded in the analysissheet as having been secured by foe 32nd respondent by or at theinstance of the 47th respondent {^collaboration with other countingofficers at these two counting centres. The honesty and integrity ofthose responsible for counting .the votes are challenged.
It raises the disquieting prospect of officers appointed countingofficers under and by virtue. of the Parliamentary Elections Act No. 1of 1981 and chosen by the Returning Officer and entrusted with theresponsibility of the proper counting of votes at counting centres andofficers appointed as assistants and clerks and other officers underthe aforesaid law to assist such counting officers, have at two centresof this Electoral. District, whilst being engaged in the conduct of aParliamentary General Election and whilst exercising statutory powersand duties in terms of the electoral laws of this country, conspiredtogether to conduct .this election in an unlawful manner to thedetriment of the petitioner. This is a serious allegation made againstofficers performing official acts who in ordinary circumstances maybe presumed to have performed such official acts regularly.
One’s attention'i$ drawn to. passages in the judgment of theElection Court in the case, of-Ka/ee/.k .T/i.emis‘3{ jhere the ElectionJudge refers to an example given: by thfe^cting Solicitor-General inthe course of argument at the -Hearing – quote – “The acting S.G.gave as an instance a case in which, a petitioner satisfies the Court(the emphasis is mine) that a .hgmber of counting assistants, byreason of their association with -the. candidate who was returned,were so biased against the petitioner that they purposely counted thevotes cast for-the petitioner in favour of his opponent”. WhatMr. Tiruchelvan imagined may happen the petitioner in the instantcase says happened. .This example, coupled with a narrow margin(as in the instant case) w.as considered by that Court (obiter) tosuffice to order a recount.;
In the petition and affidavit- fifed by the petitioner he states that atcounting centre No. 13 he saw:
the 47th respondent incorrectly recording preferences for the32nd respondent;
specifically witnessed, the 47th respondent recordingpreferences over and abpveThe actual preferences receivedby the 32nd respondent; 1
the 47th respondent committed these irregularities with thehelp of several counting officers whose identities areunknown to the petitioner;
that the 47th respondent was a counting officer assigned tocounting centre No. 15 and not to 13;
the petitioner reported these irregularities to the person incharge of centre No. 13 but that person did not take any stepin that regard; The petitioner continued to complain andprotest and eventually the 47th respondent left that countingcentre;
thereafter the petitioner received information that the 47threspondent.was committing the same irregularities at
. counting centre No.15;
the petitioner immediately visited counting centre No. 15 withhis agents and saw the'4.7th respondent recordingpreferences over and above the preferences actuallyreceived by the 32,nd respondent. Here too the 47threspondent was assisted in committing the irregularities byseveral officers whose identities were unknown to him;
although he immediately reported the irregularities to theofficer-in-charge of counting centre NoilS that officer took nonotice;
the petitioner states that altogether he saw the 47threspondent recording more than 1000 preferences for the32nd respondent which the 32nd respondent was not entitledto. These preferences over and above the actual memberreceived by the 32nd respondent were recorded at countingcentres No. 13 and 15;
the petitioner reported these irregularities to the ReturningOfficer who did nothing;
. .x i ..
in consequence of these‘incorrect entries in the analysissheet/statement of preferences the petitioner states he wasmaterially prejudiced and the result of the election materiallyaffected.
It was the submission of the appellant’s counsel that the abovematerial affirmed to by the petitioner in his affidavit constitutedmaterial facts as required by s.98(c) sufficient to move the Election
Court to proceed to take.;steps to inspect the votes under the powerscontained in s.63(2) of the. Parliamentary Elections Act No. 1 of 1981.The position of Counsel fbr'the appellant was that the affidavit of thepetitioner provided sufficient requisite facts that the Election Courtneeded to order an inspection and that it was not necessary for thepetitioner to have appended.jo his petition copies of the ballot paperaccount prepared by the presiding officer in terms of s.47(2) or acopy of the statement Pf ithe-.numberof preferences indicated for acandidate in terms-ofs.:53(7)(the'ahsence of which documents wasthe subject of adverse ,comment by‘Counsel for Respondents) asthose documents would .not; contain material that would bear out theconduct of the officials now complained, of. Counsel submitted thatthe present law provided for avoidance of an election on an electionpetition for non-compliance With the provisions of the Act if it appearsto the satisfaction of the Election Judge that the election was notconducted in accordance with the principles laid down in the Act -vide s.92(1)(b) – and that therefore the Court could have the power toorder an inspection and a recount.
In his original petition the petitioner prayed for a recount and/orscrutiny of the preference votes indicated by voters for thecandidates of the Sri Lanka Freedom Party amongst other reliefssought. In the argument before this Court appellant’s Counselrestricted his. prayer for a. recount and not for a scrutiny in terms ofs.110. Counsel argued that: ;tf.
(1) s. 53(9) and s.112 of the Act did not stand in the way of the Courtordering a recount. The provisions of s. 53(9) preventing thedecision of a counting officer in regard to a ballot paper beingquestioned, it was submitted, was only a fidelity clause to be appliedduring the progress of the actual count in order to prevent thedisruption of the counting process.but did not prevent a Court upona petition from deciding whether there, has been a miscount; and thatthe finality clause in s.112 preventing the decision of a countingofficer rejecting a vote from being questioned was referable only to arejection of the entire ballot paper but did not contemplate the newsituation created by the amending Act No. 15 of 1988 which alsopermitted a voter's choice of candidate to be indicated on the ballotpaper. Therefore it was submitted s.112 did not operate as a finality
. clause to prevent a voter’s preference indicated on the ballot paperfrom being examined by the Court.
(ii) a. That the provisions of s.92(1) (b) were wide enough to avoidthe election of candidates on preference votes if that processof counting preference votes was not conducted inaccordance with the principles of the Act which occurrencewould have materially affected the result;
(ii) b. that the petitioner has claimed a declaration that the electionof the 32ntf respondent was undue;
(ii) c. that in order to ascertain if the election of the 32nd respondentSvas undue consequenttp the misconduct of counting officersthe Court has the powef to order a recount even thoughspecific provisions for suclva step have not been enacted inPart VII of the Act.
Learned Counsel for the respondents on the other hand submittedthat a recount was not possible at the election petition stage as theAct only provides for recounts at the time of counting and that arecount in any event was a mere mechanical process which wouldnot assist the Court in deciding the issues raised. Counsel for therespondents also argued that there is no provision in the Act to makea declaration that an election is partially void. Counsel submitted thats.92(1) was concerned with the avoidance of art electron in respect ofan entire electoral district whereas the petitioner confines the reliefshe seeks to setting aside the election of an individual member only.
It was held in the case of Rajapaksa v. Kadirgamanathan(4) that arecount is ordered where there has been no count according to law.That case went on to distinguish between a “recount” and a“scrutiny”. If in fact more than 1000 votes were dishonestly added tothe total votes cast for the 32nd respondent by a counting officer thenthe declared result of the election of the 32nd respondent would beundue. In my view the Court has inherent power to order a recount soas to give effect to the principles of the Act which is an overridingconsideration. Natural justice demands the intervention of the Courtand its principles will be called in aid. The provisions of s.53(9) areinapplicable as that Section applies to an ongoing count only. Theprovisions of s.112 are not relevant in the instant case as the rejectionof ballot papers by a counting officer has not been brought intoquestion in the second ground urged for avoidance. Upon suchcount, if it is shown that the petitioner has in fact obtained a majorityover the 32nd respondent, then the Court is obliged to deal with itand give the provisions of s.92(1) which has remained unamended inthe face of the introduction of a voter’s choice of candidate apurposeful, interpretation in accordance with the policy of thelegislature in enacting the amended sections 53(7), 55(b) and 60(1)of Act No. 15 of 1988. The justice of the common law will supply the
omission of the statute. Thus on principle I take the view that –
* .
an order for a recount is^one^hEft is permissible and can bemade by an Election Court in-appropriate circumstances, and,
the Court has the power to declare that the return of the 32ndrespondent was undue and that the petitioner was duly electedand ought tp'have been returned.
The petitioner-appellant as an interim step has prayed for aninspection of the votes as a prelude to a recount.
It is pertinent therefore to examine the machinery set up under theAct to give, effect to jts-ajms. The Commissioner of Elections,appointed In tetms’bf Article. 103 of the Constitution, appointsreturning officers by notice In-the Gazette for each electoral districtand persons to assist the returning officers in the performance oftheir duties – vide s.6 of the Act. In practice these assisting officersare apppinted counting officers by the returning officer to be incharge of the counting of votes at counting centres – vide Article 49.Again s.29(1) permits facilities foJbe provided for the purposes of anelection in an electoral district. Section 29(1) (f) enables the returningofficer to do "much acts and things as may be necessary foreffectively conducting the election”. Part IV of the Act makesprovision for the counting of votes. Section 51 provides for politicalparties and groups to appoint counting agents to attend on thecounting of votes. Notice in writing stating names and addresses ofpersons so appointed shall be submitted to the counting officerbefore the count commences. Any person whose name has not beenso submitted has no right of admission to the counting centre.Section 52 deals with the count. As a preliminary the counting officerin the presence of the counting agents has to show the ballot paperaccount to them which contains all those matters enumerated in form‘k’. He has to open each ballot box, and count the ballots inside eachbox in the presence of the agents. There is no prohibition preventing(forbidding) a counting agent from taking down their own notes.Whilst counting, ballot papers have to be placed upwards (enablingagents to observe them and make their own notes if necessary).
The above duties cast on the returning officer thus opens thecount to the scrutiny of interested persons from its very inception.Again, in deciding whether to aHow a ballot paper to be taken to thecount or rejected, the counting officer is required to show it to thecounting agents and hear their views – vide x. 53(3) and (4) beforetaking a decision. A necessary concomitant to all these provisionswould be that the counting agent can make his observation orobjection to any particular vote being counted in any particular wayand that those objections or observations be recorded by thecounting officer. Thus in practice the counting officer mustnecessarily keep a journal (may be on loose leaves in a file cover orin a register) which reflects the events of the day, observations madeand objections taken (unless not recorded of consent) in the processof the count. It is only reasonable to infer therefore that the countingagent is not a helpless passive spectator merely gazing at ballotpapers. He has a role to play; he represents the candidate contestingthe election and he is there to ensure as far as possible a proper andfair election to the satisfaction of candidates. If he is dissatisfied withany matter he has a clear duty to point it out and have an objection oropinion recorded and he has the right to report the matter to a higherauthority if still dissatisfied and that too recorded. Thus there appearsto be a clear duty on his part to take an objection and have itjournalised if anything improper is done during the count.
It is no argument, in seeking to excuse failure, on the part of anagent to ask for a recount to say that it would not have served anypurpose and that it would not have helped the petitioner as a
recount is a mere mechanical process. It was held to be so inKaleel v. Themis(3) in view of.the provisions of s.49(5) of the old law(Parliamentary Elections Order in Council, Cap. 381) (s.112 of thepresent law) that the decision of the Returning Officer as to whetheror not a ballot paper shall |be; rejected shall be final. But we are notconcerned with such a situation here. The complaint is one of falselyadding votes to someone ndt entitled to them. Such a vote can bechecked and properly counted at a recount. So one asks thequestion: What is this process of counting in the presence of andunder the gaze of counting agents? Is it not to ensure that everybodypresent has the opportunity of seeing each ballot paper and ensuringthat it is added to those votes cast'for that .particular party or personparticipating in the contest so as to procure a proper result. Thus if avote has been improperly counted-/ that can be pointed out andcorrected or objection recorded. Such a record (and if the avermentsin this case are true) over , a thousand such objectionscontemporaneously taken would be recorded in the journal if notcorrected. Such a fact placed before the Court could be regarded asa material fact.-for ,the consideration of the Court. Again, anotheropportunity is given to a counting agent to raise an objection orexpress an opinion in a s.53(7) situation – (ie) to object to theinformation given in the written statement of the counting officercommunicated to the Returning Officer giving the number ofpreference votes given to each candidate. The counting agent cansign that statement as a witness and copy it. Thus, if the statementcontains'inflated figures the.counting agent could have protectedand brought it to the notice of the Returning Officer. Further provisionis made by s.60(1) permitting accounting agent to inspect the seals ofthe package containing the said written statement under s.53(7) toensure that nothing but the statement witnessed by him is forwardedto the returning officer. Sealing would also be done in the presence ofthe counting agent. So we have. at several stages of the count anelection agent playing the roie.-of the private eye scrutinizing theconduct of the count. These provisions provide the means to obtainagreement or acceptance of the count. A duty is cast.on the countingofficer to permit, counting agents’ access to what is being done.Counting agents are given an opportunity to witness the votes beingcounted, compare the official figures with their own figures and haveany grievance recorded and heard before the declaration of results.
In the instant case however eveathe statement of preferencevotes cast for each candidate has nor been copied by the petitioner'scounting agents and produced in Court.. The question thus arises,taking all these matters into consideration, whether the conduct of thepetitioner's agent or agents was dpe to indifference, laziness,negligence, incompetence or something else. The matterscomplained of in the petitioner’s'affidavit have, therefore,'to beapproached with caution.'•
Assuming that the Court has jurisdiction in terms of s.92(1) (b) tointerfere with the election of the 32nd-respondent for non-compliancewith relevant provisions of the Act if it appears that the election wasnot conducted in accordance with -the principles laid down in suchprovisions and that such non-Gorhpliance materially affected theresult of the election, learned Counsel for the 32nd respondentsubmitted that the Court should distinguish between allegations,material facts and evidence in the case for the purpose of. decidingwhether an inspection should be ordered. Section 98(c) required thata concise statement of material facts be set out in the petition.Evidence is not required in the first instance. Counsel submitted thatthe averments in the petition and affidavit contained only allegationsbut included no material facts.
As it is my view that the Election Judge had jurisdiction to proceedwith this case on the grounds contemplated by s.92(1)(b) it .becomesnecessary for this Court to consider the .qircumstances/Which havebeen placed before it. The petitioner in the first instance asks for aninspection. Before the Court moves it Must be satisfied that there iscredible material before it. The ordinary tests of common sense andprudence suggest that the particulars agitated by the petitioner byhis affidavit contain only bare allegations of misconduct by officialsassisting in the conduct of the election; Allegations alone are notsufficient to satisfy a Court that its-junsdictjon ought to be exercised.It has been held that a petition which alleged only that the petitionerclaimed a majority of good and lawful votes would be insufficient -West Bromwick® also vide Rogers on Election, 20th Edition, Vol II,P. 173. The petitioner has not claimed in his. affidavit that herequested those responsible for the count to record his objections tothe count. The conduct of the petitioner or his agents in not making
any contemporaneous recorded protest on the alleged misconductdeprives the petitioner and his supporting affidavit of reliability on thefact of the complaint. Nor is .there a complaint of bias against thepetitioner or in favour of the 32'nd respondent. No acceptable factualcircumstances are before the Court tp suggest that official acts werenot properly done at this election. No interim order for inspectioncould therefore be made in the first,instance.
The remaining question not raised before the Electi.on Judge waswhether an Election Court has pqwer to dismiss an election petitionin limine. This question has been decided,by five Judges in thePresidential Election Petition.No. 1 of 1989 ~ Bandaranaike v.Premadasam. It was decided tl%tthe Court did have the power todismiss an election petition in limine if there was a failure to complywith a mandatory provision – quote – “Just as much as the publichave an'interest in the election petition there is also the principle thatthe election of a candidate should not be lightly interfered with”.Other relevant decisions are Samar Singh v. Kedar Nathm, and thecase of Arthur Hussain v. Rajiv Gandhim. In the instant case I havecome to the view'that no./.acceptable factual circumstances havebeen placed before the Court for it to order an inspection which iswhat is prayed for in the first instance. Section 98 of Act No. 1 of1981 contains mandatory provisions regarding the contents of anelection petition. Section $8(c) requires a petition to contain "aconcise statement of materiaLfacts on which the petitioner relies”. Butthe petitioner,, has failed-to- place such material facts before theElection Judge in his petition for relief. In the circumstances theElection Judge was correct in-refusing inspection and dismissing thepetition in limine. I affirm the judgment of the Election Judge anddismiss this appeal with costs. – ..
. KULATUNGA, J.
The appellant (hereinafter referred to as the petitioner) and the32nd respondent were among the 9 candidates nominated by the SriLanka Freedom Party (hereinafter referred to as the SLFP) to contestParliamentary Elections for the electoral district No. 13, Digamadullaheld on 15.02.89. The said election was contested by 5 political
parties. On the basis of the votes obtained by the political partiesonly 4 of them became entitled to elect Members of Parliament. Ofthem, the United National Party became entitled to elect 3 memberswhilst the remaining 3 political parties became entitled to elect 1member each, making up a total of 6 members which that electoraldistrict was entitled to elect.
On the basis of the preference votes accrued by the SLFPcandidates under the relevant provisions of the ParliamentaryElections Act No. 1 of 1981 as amended by Act No. 15 of 1988 readwith Article 99 of the Constitution the 32nd respondent was declaredelected as the SLFP member by a majority of 76 votes over thepetitioner.
The petitioner filed an election petition for the avoidance of thesaid election for the electoral district No. 13, Digamadulla on theground of non-compliance with the provisions of the ParliamentaryElections Act No. 1 of 1981 as amended relating to elections as thesaid election was not conducted in accordance with the principleslaid down in such provisions which non-compliance materiallyaffected the result of the said election. Section 92(1 )(b) of the Actprovides for such avoidance.
in his petition the petitioner prayed for declarations and orders tothe following effect.
a declaration that the impugned election is void to the extentthat the counting/recording of preferences indicated by votersfor the SLFP candidates had not been in compliance with theprovisions of the Parliamentary Elections Act and inaccordance with the principles laid down in such provisions;
a declaration that the return of the 32nd respondent as aMember of Parliament was undue; and
a declaration that the petitioner was duly elected and ought tohave been returned as a Member of Parliament at the saidelection;
an order under Section 63(2) of the Parliamentary ElectionsAct to inspect the ballot papers containing preferencesfor the SLFP candida.tes.-and of the relevant analysissheets/statements of preferences and to copy the same; and
an order for a recount/scrutiny of the preferences indicated byvoters for the SLFP candidates, at the said elections.
The petitioner joined, in addition to the 32nd respondent, theCommissioner of Elections (1st respondent), The Returning Officer(2nd respondent) and one Tikiri Banda who officiated as a CountingOfficer (47th respondent). He claims no relief against any of the othercandidates all of whom he joined as parties.
The.material facts on which the petitioner relies are
The failure to count a total of 642 preferences which he claimsto have accrued.amounting centres 1, 2, 3, 4, 5, 6, 13 and 15on the grOCind that the cross by which the voters had indicatedtheir preference had'been placed opposite No. 9 in the ballotpapers, which was the serial number allocated to him and not
. oh the cage enclosing the serial number.
The petitioner states that the voters who so indicated theirpreferences on 642 ballot papers had clearly indicated theirpreference for the petitioner.
In counting centres.Nos. 13 and 15 about 1000 preferencesover and above the preferences actually secured by the 32ndrespondent have been recorded in the analysissheet/statement of preferences as having been secured byhim. This irregularity was committed by the 47th respondentwith the assistance of several other officers of whose identitythe appellant is not aware.
In his affidavit accompanying the petition, the petitioner states thathe with his agents visited counting centre No. 13 when thepreferences secured by the SLFP candidates were being counted.
He saw the 47th respondent (who was the counting officer assignedto counting centre No. 15). recording preferences for the 32ndrespondent over and above what, he had actually secured andpreparing the analysis sheets/stptements relating to same. Thepetitioner protested to the officer-in-charge of the counting centreNo.13 but the latter took no steps irt;that regard; when the petitionercontinued to protest, the 47th respondent left that counting centre.The petitioner then received information that the 47th respondent wascommitting the same irregularity, at counting centre No. 15. Thepetitioner immediately visited counting centre No.15 and observedthe 47th respondent recording preferences over and above thepreferences actually received by £he 32nd respondent, with theassistance of other officers. He reported it to the officer in charge ofthat counting centre, but he too did not take any steps in that regard.
Preliminary objections were filed on behalf of the 1st and 32ndrespondents. These objections were fixed for inquiry at which stagethe Counsel for the petitioner moved that the matter relating to theinspection of ballot papers and statements also be considered as apreliminary matter. This was allowed by the Election Judge. This wasfollowed by a motion on behalf of the petitioner applying forinspection, under Section 63(2) of Act No. 1 of 1981 as amended, ofthe ballot papers and the written statements of the number of votesand references given in favour of the SLFP candidates at the electionfor the electoral district No. 13 Digamadulla. It is relevant to note thatthis motion makes no reference to the “relevant analysis shepts”referred to in the petition. The reason for this omission is. obviousnamely, that the power of the Court to order an inspection underSection 63(2) does not extend to such analysis sheets not beingdocuments which the returning officer is required to retain underSection 63(1).
At the inquiry which followed Counsel for the 1st, 2nd and 47threspondents and the Counsel for the 32nd respondent were heard insupport of the objections and the petitioner’s Counsel replied. Thiswas followed by written submissions. The respondents applied tohave the petition dismissed in limine on the ground that the petitioneris, on the face of the allegations set out in the petition, not entitled toany relief. Their position may be summarized under two heads.
The petitioner had not specified the section under which he
sought relief. If he is seeking to have the election of the 32ndrespondent declared undue and to obtain a declaration that hewas duly elected, he is not entitled to such relief as he failed toplead the relevant grounds under Section 92(2) of Act No. 1 of1981. His case is really under Section 92(1)(b) in which eventthe law permits a declaration that the election for the entiredistrict is void but the petitioner has not sought such relief,instead he is seeking to avoid the election of the 32ndrespondent i.e. a partial avoidance of the result which tie is notentitled to under Section 92(1).•.
As regards the petitioner’s allegations in respect of thepreference votes, the respondents argue that the 642preferences referred to were rightly rejected at the counting asthe intention of the voter on each preference is not at all clear.The Election Judge cannot reverse the decision of thecounting officer in view of the finality provisions under Section53(9) and the bar in section 112. If he was not satisfied aboutthe rejection of the said preferences or the recording of the1000 preferences referred to in the petition his countingagents were entitled to obtain copies of the statements ofpreferences, under Section 55(7) and to two recounts at eachof the relevant counting centres, under Section 53(8).
•.-'Admittedly the counting agents or the petitioner had not so'.•.•.••applied for copies-pf statements or a for a recount; and thepetftidher is,,not entitled to a recount which under the law as itstands-is-only available under Section 53(8). The relief of. scrutiny which was’available under Section 80(c) of the Ceylon(Parliamentary Elections) Order in Council (Cap. 381) is notprovided for under the corresponding Section 96 of Act No. 1of 1981; the petition is speculative and should be dismissed inlimine as the petitioner, has not placed adequate materialbefore Court.
On the first objections the petitioner’s counsel contended that theCourt should give to Section 92(1) a purposive interrelation and heldthat the declaration provided by that section is not limited to a totalavoidance of the election in any electoral district but extends to ahclaim of partial avoidance of the result based on an allegation of anabuse relating to the counting of preference votes in favour of acandidate.
On the second objection, the petitioner's Counsel contended that.in view of the requirement under Section 30(1) that a voter shall markthe ballot paper as near as may be in accordance with the directiongiven for the guidance of voters in the third Schedule to the Act, thedirection in the Schedule to indicate the preference by placing across on the cage enclosing the serial number assigned to thecandidate is not mandatory but directory; as such crosses placed “inthe blank space” opposite number 9 in the ballot paper (a specimenof which has been marked 1R1) have to be considered; consequentlythe Court may inspect the 642 ballot papers referred to in the petition.It was also submitted that the finality under Section 53(9) is limited tothe course of the election and would not preclude a challenge to thecounting of preference votes in an election petition; and that theouster under section 112 covers the rejection of a ballot paper andnot the rejection of preference votes; that this is clear from the factthat the Act No. 15 of 1986 which amended Act No. 1 of 1981 toinclude provisions relating to preference votes did not effect anyamendments to Section 112 barring the Court from reviewing therejection of preference votes. As regards the 1000 preference votesalleged to have been irregularly recorded for the 32nd respondent,the petitioner's Counsel submits that Section 53(9) and 112 have noapplication to the relevant ballot papers and the Court should hearthat allegation and allow the inspection sought even though thepetitioner had failed to apply for copies of statements of preferencesunder Section 53(7) or for any recount under Section 53(8); that theright to a recount in the course of an election petition has not beentaken away by the provisions of Act No. 1 of 1981. Counsel cited thedecisions in Kuruppu v. Hettiaratchy<8) arid Kaleel v. Themis(3) on thepower of the Court to order an inspection or a recount.
The Election Judge rejected the first legal objection. He held thatSection 92(1) is wide enough to make it possible to declare that theelection for the electoral district of Digamadulla is void to the extentthat the counting or the recount of the preference votes had not beenin compliance with the Act and its principles, and therefore the return
of the 32nd respondent was undue and that the petitioner should be;declared duly elected. Although this legal objection has been'reiterated in the submissions for the respondents, at the hearing ofthe appeal before us learned Counsel for the respondents did notadvert, to it. I am of the view that the finding of the Election Judge onthis ..issue is correct. However, the Election Judge proceeded toconsider the other submissions of the respondents and held that onthe face of the petition and on the averments contained therein, thepetitioner has not made out that he is entitled to any of the reliefs hehas claimed. He upheld the preliminary objections on that basis anddismissed the petition. The reasons for so dismissing the petitiongiven in the judgment show that the Election Judge has substantiallyadopted the submissions of the respondents which I havesummarized earlier in this judgment.
Thus, the learned Judge held that the intention of the voters on the642 ballot papers relied upon by the petitioner is not at all clear andthe preference votes thereon were void for uncertainty and weretherefore rightly rejected under Section 53(7)(c) that such decisionwas final and conclusive under Section 53(9) and cannot bequestioned in an election petition in view of Section 112.
The learned Judge next considered the alleged irregularitypertaining to the recording of about 1000 preference votes along withthe prayer for the inspection of the relevant ballot papers andstatements of preferences and prayer for a recount of the SLFP votes.The learned Judge repeats without comment the fact that Section 96of the present Act does not provide for a scrutiny. He accepts theavailability of provision in Section 63(2) for an inspection, does notadopt the submission that there is no right to a recount except underSection 53(8) but proceeds to hold on the strength of Kaleel’s casethat no recount can be allowed as the petitioner or his agents hadfailed to apply for it at the counting. He also held against aninspection under Section 63(2) in view of the failure to apply forcopies of statements of preferences or for recounts. He thought thatthe petition had been filed on insufficient material and the petitioner isnow seeking to use Section 63(2) to obtain material to support hiscase and ruled that this is not permissible.
Mr. Faiz Musthapha, PC strongly criticized the learned Judge’sreasoning and confidently submitted that it contains severalmisdirections on the law and that the learned Judge erred indismissing the petition in limine particularly for the reason that therespondents had not joined issue on the allegations levelled inrespect of the irregularity pertaining to about 1000 preference voteswhich allegations had been supported by an affidavit. Before Iconsider these submissions, I wish to determine an issue which Imyself raised during the argument namely whether the dismissal ofthe petition can be defended with reference to Section 98(c) of ActNo. 1 of 1981 on the ground that the petition does not contain aconcise statement of material facts on which the petitioner relies.
On reflection, I am satisfied that the petition cannot be thrown outfor non-compliance with Section 98(c) as the petitioner has set outtherein a concise statement of material facts on which he relies. InKaleel v. Themis (supra) where the petitioner prayed for a declarationthat the 1st respondent’s election was undue and for a declarationthat the petitioner was duly elected and ought to have been returnedas the 3rd member for Colombo Central, all that he pleaded was thatthere was a miscount of the votes. Pulle, J. said that one of thepossible meanings of this allegation was that votes cast for the 1strespondent were counted in favour of the petitioner but in the contextthe word “miscount” would amount to a statement that votes cast forthe petitioner had been counted as votes for the 1st respondent or forone or more of the other opposing candidates! On an objection thatthe position was on the face of it bad Pulle, J. said (58 NLR 396 at402) (3).
"I do not think it would be fair to throw out a petition because anexamination of its language, as strictly as one would examine thepenal provisions of a statute, reveals matters which have nobearing on the reliefs claimed. There is implicit in paragraph 5much that is germane to the relief claimed, namely, that votes thatshould have been counted for the petitioner were counted for hisrivals”.
In the instant case, there is a more specific statement of the factsrelied upon and hence the petition cannot be rejected on the groundthat it has been filed on insufficient material.
In Kaleel's case, after deciding to entertain the petition, Pulle, J.proceeded to consider the petitioner's prayer for a recount which wasvital to the further prosecution of the petition. A recount was refused.In so exercising the Court’s discretion Pulle, J. took into considerationthe fact that the honesty, care and competence of those responsiblefor the counting were not challenged and the failure of the petitionerto avail himself of the right of seeking for a recount under Section48(7) of the Ceylon (Parliamentary Elections) Order in Council (Cap.381) from which the Court presumed that “he (the petitioner) was notthen dissatisfied with the counting”.
In the instant case, the petitioner has prayed for an inspection ofthe ballot papers and statements of preferences for SLFP candidatesand a recount which in my view are vital for the further prosecution ofthe petition. The application for inspection was itself argued as apreliminary matter at the request of the petitioner’s Counsel and thelearned Judge refused it. I am of the view that if such refusal is right,the application for a recount cannot be pursued, in which event thepetition has to be dismissed.. I shall therefore proceed to consider thequestion whether in the circumstances of this case the refusal of theapplication for inspection j^right.
I agreb’with the submission of Mr. Faiz Musthapa, PC that thefinality provided by Sectioh 53(9) to the decision of the countingofficer as to any question arising in respect of any ballot paperapplies only to the process of counting and does not preclude achallenge by election petition to the recording of preferences; I alsoagree that the exclusion of judicial review of a decision whether or nota ballot paper shall be rejected does not preclude the power toreview a decision regarding a preference vote. I hold that the opinionof the Election Judge to the contrary appearing in his judgmentwhere he considers the allegation relating to 642 preference votesconstitutes a misdirection on the law. Although Mr. Musthaphacomplains that even the consideration of the alleged irregularitypertaining to 1000 votes is vitiated by such misdirection, thejudgment does not bear out this submission. On the other hand, theElection Judge considering that allegation has stated that theoperation of the sections under reference “is subject to the over-riding provisions of Section 92(2) (an erroneous reference to Section92(1)) which states that an election for any district can be avoided fornon-compliance with the provisions of the Act and such non-compliance has affected the result of the election”.
The Election Judge’s decision refusing the inspection pertaining to642 preference votes is primarily referable to his opinion that suchpreferences were void for uncertainty and were therefore rightlyrejected. Mr. Musthapha, PC submits that the Court could not havedecided the question without an inspection which would haverevealed different combinations of marks including the case of voterswho would have indicated two out of the three preferences byplacing a cross on the cage enclosing the relevant serial numbersand the third by placing the cross on the space opposite number 9assigned to the petitioner. Counsel also submits that the presence of“a cage adjacent to numeral ‘9’ identical to the vacant cagesadjacent to party symbols” may have confused the voter and led himto indicate his preference by placing the cross in that cage. I amunable to agree with these submissions, for the following reasons.
(a) Where a voter marks two out of his three preferences byplacing the cross on the cage enclosing the relevant serialnumber and third by placing the cross outside the cageenclosing number 9, the preference claimed by the petitioneris more uncertain than in the case of a voter who exercisesonly one preference by placing the cross outside the cageenclosing serial number 9. In the latter case the extent of thedeviation from the guidelines contained in the Third Scheduleto the Act are such as cannot be permitted under Section39(1).
Any deviation, if it is to be valid, should be rational in all thecircumstances. The intention of the voter cannot be the solecriterion of such validity. A mark placed outside the cage
enclosing number 9 would not be rational. If such mark isclaimable, then the petitioner will have an advantage over theother candidates he can only claim a preference if it is placedon the relevant cage.
(b) I do not accept the contention that there is a cage adjacent tonumber 9 resembling the cage opposite the party symbols.The specimen ballot paper 1R1 strictly conforms to thespecimen appearing as Form C in the First Schedule to theAct except that in Form C provision for 10 candidates, hasbeen included whereas 1R1 has provision only for 9candidates i.e. the number of members that the electoraldistrict of Digamadulla is entitled to elect. The deletion of thecage enclosing number 10 has resulted in the presence of aspace opposite number 9 but the ballot paper itself strictlyconforms to law and there is no such cage as alleged whichwould excuse a vot&r being misled.
Accordingly,'-I hold that the decision of the Election Judge refusingthe inspection applied for by the petitioner with reference to the said642 voter preferences is right and constitutes the only decision theJudge could reach in the exercise of his discretion on the factsbefore him.
The application for inspection pertaining to the alleged irregularityrelating .to 1000 voter preferences was refused as the petitioner hadnot availed himself of the right to obtain copies of statements underSection 53(7) and recounts under Section 53(8). The learned Judgerelied on the decision in Kaldpl’s case (supra). He took the view thatthe Act made detailed provision for counting including provisiongiving the right to the petitioner's agents to obtain copies ofstatements of the votes for the recognized parties and preferencevotes for candidates, the right to obtain copies of such statementwas not available under the Order in Council (Cap. 381). The Judgeexpressed the view that if the 47th respondent committed the allegedirregularities the petitioner or his agents could have asked for arecount then and there and further taken copies of the figures andfurnished them to Court; but he has not done any of these things. TheJudge proceeded to refuse the inspection sought in that context andon the ground that the petition has been filed on insufficient materialand the recourse to Section 63(2) was merely an effort to cure thisdeficiencey.
I think that the instant case is different from Kaleel's case. Firstly, inKaleel’s case the honesty, care and competence of the countingofficers were not challenged. In this case, a serious irregularity whichraises the issue of the bona tides of the 47th respondent and otherofficers has been alleged. Secondly, the kind of recount which acandidate was obliged to ask for in Kaleel’s case was different fromthe recount provided for under Section 53(8). Under the previous law,a recount meant the verification of the final result based on the firstpost past the system of voting. At present, recounts can be appliedfor at such counting centre whether in relation to the votes for arecognized political party or the preference votes for a candidate.The effect of such recounts would be known only after the final countby the Returning Officer. In this context, the legal implications of thefailure to ask for a recount cannot be the same as undef'the previoussystem, particularly at the General Election: in question which was thefirst such election held under the new law. The petitioner states, thathe repeatedly protested and complained to the officer-in-charge ofcounting centres Nos. 13 and 15 against the irregularities committedby the 47th respondent but that the officer took no steps. In thecontext of the new election law, the need to ask for a recount ofpreferences at two counting centres may not strike the mind of acandidate as much as the need to lodge a complaint, against anirregularity in the counting of preferences. The failure td/obtain copiesof statements of preferences is also not of such relevance becausethese statements would only contain the totals of preferencescounted for the candidates. The petitioner is challenging such totals.Such statements themselves may not be of any assistance inadjudicating upon such challenge; but an inspection of the ballotpapers may assist the Court.
For the foregoing reasons, I hold that the Election Judge waswrong in refusing the inspection sought relating to about 1000 voterpreferences. The decisions in Kaleel's case (supra) and in Kuruppu v.Hettiaratchym show that our Courts have considered applications forinspection and recounts with the indulgence appropriate to a fairhearing of the petition. I allow the appeal and s'et aside the judgmentappealed from so far as it relates to the alleged irregularity pertainingto about 1000 voter preferences. The Election Judge is directed toallow the inspection sought in that regard limited to counting centresNos. 13 and 15 and to proceed with the trial of the petition or todismiss it, whichever is appropriate on the result of the inspection. Asthe petitioner has succeeded partly, I allow him half the costs of thisappeal.
A. G. DE SILVA, J.
I have had the advantage of reading the judgments prepared bymy brothers Bandaranayake and Kulatunga, JJ. On the first matterthat comes up for consideration, viz; whether the 642 preferencevotes obtained by the Petitioner-Appellant were rightly not broughtinto account on the ground that the cross (X) indicating thepreference, had been placed outside the cage containing thenumeral 9, the number assigned to the petitioner-appellant, I am inagreement with the conclusion arrived at by them that thosepreferences were rightly rejected for uncertainty and vagueness andthe reasons given by for such a conclusion.
On the second question however, as to whether an order shouldbe issued for inspection in terms of Section 63(2) of the ParliamentaryElections Act No. 1 of 1981 of the preference votes of the S.L.F.P.candidates, as well as an inspection of the relevant analysissheets/statements of preferences and the cage of the same and ascrutiny/recount of the preference votes of the S.L.F.P. candidates. Iam in agreement with the views expressed by my brotherBandaranayake, J. in the result that I too would dismiss the appealwith costs.
Appeal dismissed.