Legal Services and Laws of Sri Lanka


SLR-1992 Vol.1-P76

SLR - 1992 Vol.1, Page No - 76

WEERASINGHE

v.

CHANDANANDA DE SILVA, COMMISSIONER OF ELECTIONS

AND OTHERS
SUPREME COURT

H. A. G. DE SILVA,

J. BANDARANAYAKE, J. AND

KULATUNGA, J.

S.C. ELECTION PETITION

APPEAL NO. 1/89

30 MAY, 26 JUNE, 23 AND 24 JULY 1990

Election petition - Preliminary objection - Proportional representation - Distribution ofseatstoDigamadullaElectorate
and election of successful candidate of the Sri Lanka Freedom Party -Preferencevotes-Mannerofvotingandmarking
preference votes - Rejection of votes - Recount and scrutiny - Inspection of preference votes and relevantSheets/Statements
- Recount of preference votes cast - Parliamentary Elections Act, No. 1 of 1981, S. 63(2) - Constitution of 1978, Article99
- 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)-Concisestatementof
material facts - Official acts.

Porportional representation of the people in Parliament was introduced to the electoral process by the Constitution of1978.
Article 99 provided for proportional representation with a single list of candidatesfromapartyorindependentgroup.
Election to the House was to be in order of priority of the names set out in the nomination papers.The14thAmendmentto
the Constitution replaced Article 99 which, whilst retaining theconceptofproportionalrepresentationbyapartyor
independent group, introduced the voter's choice in respect of a candidate of a particular party or independent group,bya
preference vote. The Parliamentary Elections (Amendment) Act No. 15 of 1988 provided the mechanism in theelectoralprocess
for effecting proportional representation in Parliament. The third Schedule to that Act was accordingly amended toenablea
voter to express his preference to the choice of a candidate. The third Schedule givesdirectionsfortheguidanceofa
voter in voting more specifically in accordance with sections 37(1), 39(1) and 53(1)(b) and (c). For example every voterhad
one vote which he could give to a recognized political party or to an independent group. The manner of voting was bymarking
the ballot paper with an 'X' on the right hand side of the ballot paper opposite the name and symbol of the recognisedparty
or independent group of his choice and also indicating his preferences for not more thanthreecandidatesfromamongthe
candidates nominated by such recognised party or group by placing an `X' mark again on the cage enclosing theserialnumber
corresponding to the number assigned to each candidate of his preference.

The petitioner-appellant and the 32nd respondent were candidates in the S.L.F.P.candidatelist.Thepetitioner-appellant
had been assigned the serial number 9. In the distribution of seats based on the votes polled bythepartyorgroup,the
S.L.FP won one seat of six seats of Electoral District No. 13 - Digamadulla. The 32nd respondent havingpolledthehighest
number of votes from among the S.L.F.P. candidates was declared elected to that seat.Thepetitioner-appellantwasbehind
him by 76 preference votes. The petitioner-appellant alleged a miscount in that 642 preference votes castforhimhadnot
been brought into the Court on the ground that the cross "X" mark had been placed outside the cage containing thenumeral9
assigned to him. Further in counting centres 13 and 15 about 1,000 preference votesoverandabovethepreferencevotes
secured by the 32nd respondent had been recorded in the analysis sheet as have beensecuredbythe32ndrespondent.The
petitioner-appellant therefore wants a recount and the election of 32nd respondent set aside.Thiswasdonebythe47th
respondent with the help of several counting officers.

Held
(1) When marking his preference for a candidate or candidates, thevoterisrequiredtoplacehismark"onthecage
enclosing the serial number corresponding to the serial number assigned toeachcandidate".Thisdirectionbyitsvery
nature is mandatory. Section 39(1) which states that the voter shall secretly mark the ballot paper asnearasmaybein
accordance with the directions can only mean one thing that when a voter is marking his preference for a candidate thecross
must be placed substantially on the cage enclosing the serial number as there is nootherwaywhenseveralcagedserial
numbers are packed one next to the other, of indicating with reasonable certainty a preference for a particular cage.Itis
to bring a substantial degree of certainty into the voting process that the 3rd Schedule in formulating directionshasmade
this difference as to where the mark should be placed in two situationsof voting for a party or group and laterexpressing
a preference for a 'particular individual of that party or group. Where the mark is placed in an open area totherightof
the number it makes the vote quite uncertain and such a vote should be rejected as void and not taken into account.
(2) Kulatunga, J. (dissenting):
(a) The decision of the Election Judge refusing inspection when it is stated specifically that thevotermarkedhiscross
completely outside the cage enclosing the serial numbers of candidates, his intention is not at all clear is correct.
(b) Section 29(1) (f) enables the returning officer todosuchactsandthingsasmaybenecessaryforeffectively
conducting the election. Section 51 provides for political parties and groups to appoint counting agentstoattendonthe
counting of votes. As a preliminary, the counting officer in the presence of the countingagentshastoshowtheballot
paper account to them. He has to open each ballot box and count the ballots inside each box in the presenceoftheagents.
There is no prohibition against a counting agent taking his own notes. Whilst counting,ballotpapershavetobeplaced
upwards (enabling agents to observe them and make their own notes if necessary).Again,indecidingwhethertoallowa
ballot paper to be taken to the count or rejected, the counting officer is required to show it tothecountingagentsand
hear their views before taking a decision. A necessary concomitant would be the counting agent can makehisobservationor
objection to any particular vote being counted in any particularwayandthoseobjectionsorobservationshavetobe
recorded by the counting officer. Thus in practice, the counting officer must necessarily keep a journal whichreflectsthe
events of the day, observations and objections taken (unless not recorded of consent)intheprocessofthecount.The
counting agent is not a helpless passive spectator merely gazing at ballot papers.

It is no argument, in seeking to excuse failure on the part of an agent to ask for a recount to say that itwouldnothave
served any purpose. The complaint is one of falsely adding votes to someone not entitled to them. Such a vote can bechecked
and properly counted at a recount. If the statement contained inflated figures the counting agent couldhaveprotestedand
brought it to the notice of the Returning Officer.

The petitioner in the first instance asks for an inspection. Before the Court moves there must becrediblematerialbefore
it. The particulars agitated by the petitioner by his affidavit contain only bareallegationsofmisconductbyofficials
assisting in the conduct of the election. Allegations alone are not sufficient tosatisfyaCourtthatitsjurisdiction
ought to be exercised. The petitioner has not claimed in his affidavit that he requested those responsible for theCourtto
record his objections to the Court. The conduct of the petitioner or his agents in not makinganycontemporaneousrecorded
protest on the alleged misconduct deprives the petitioner and his supporting affidavit of reliabilityonthefactofthe
complaint. Nor is there a complaint of bias against the petitioner orinfavourofthe32ndrespondent.Noacceptable
factual circumstances are before the Court to suggest that official acts were not properly done at this election. Nointerim
order for inspection could therefore be made in the first instance.
(c) The Court has the power to dismiss an election petition in limine if there was afailuretocomplywithamandatory
provision. Just as much as the public have an interest in theelectionpetitionthereisalsotheprinciplethatthe
election of a candidate should not be lightly interfered with.
(d) Section 98(c) requires a petition to contain "a concise statement of material acts on which thepetitionerrelies.But
the petitioner has failed to place such material facts beforetheElectionJudgeinhispetitionforrelief.Inthe
circumstances the Election Judge was correct in refusing inspection and dismissing the petition in limine.

Cases referred to:
(1) Woodward v. Sarsons and Sadler (1875) LR 10 CP 733, 747 (CA).
(2) Pontdarwe (1907) 2 K.B. 313.
(3) Kaleel v. Themis 57 N.L.R. 396, 399, 402, 405.
(4) Rajapakse v. Kadirgamanathan 68 N.L.R. 14.
(5) West Bromwick (1911) 60 0' M & H 257.
(6) Bandaranaike v. Premadasa (1989) 1 Sri L.R.
(7) Samar Singh v Kedar Nath 1957 S.C.C. 663.
(8) Arthur Hussain v. Rajiv Gandhi 1986 S.C.C. 313.
(9) Kuruppu v. Hettiaratchy 49 N.L.R. 201.
APPEAL under Section 102 of the Parliamentary Elections Act, No. 1 of 1981 read with Article 130(b) of the Constitution.
Faiz Mustapha, P.C. with Manohara de Silva, M. S. M. Suhaid and G. Jayakody for appellant.
Asoka de Silva, D.S.G. with Kumar Arulananda SC. for 1st and 2nd respondents.
E D. Wickramanayake with Javid Usuf for 32nd respondent.
10th September, 1990.
BANDARANAYAKE, J.
This appeal is from the Judgment of the ElectionJudgedismissingapetitionfiledbytheappellantinlimineupon
preliminary objections taken by the respondents to the hearing of the petition. The petition related to theresultsofthe
Parliamentary Election held on 15.2.89 - Electoral District Digamadulla.Thepetitionerclaimstherighttohavebeen
returned or elected at the said election and was one of nine (9) candidates nominated bytheSriLankaFreedomPartyto
contest the election. There were six seats and on the party votes the distribution of seats was as follows: (a)U.N.P.-3
seats, (b) S.L.F.P. - 1 seat, (c) T.U.L.F. - 1 seat and (d)S.L.M.C.-1seat.Theappellantisnotchallengingthe
distribution of seats among the respective parties or the election of the candidates save andexcepttheelectionofthe
32nd respondent who was himself amongst the candidates contesting from the Sri Lanka Freedom Party.

The appellant challenges the election of the 32nd respondent whowasdeclaredtohavesecured21,751preferencevotes
against the appellant who was declared to have secured 21,675 preference votes, the majority being 76preferencevotes,on
the ground that the 32nd respondent's election was undue and seeks the avoidance of the said election and a declarationthat
the appellant was duly elected.
Two grounds were urged on behalf of the appellant that:

(i) 642 preference votes in fact obtained by the petitioner appellant were not brought into account on thegroundthatthe
cross (X) indicating the preference, had been placed outside the cage containing the numeral (9) in ablankareanearthe
said cage (9), which was the number assigned to the appellant. The appellant further alleged that preferences indicated ina
similar manner outside the cage containing a numeral had been counted for the 11th respondent
(ii) in counting centres (13) and (15) about 1000 preferences over and above the preferences actuallysecuredbythe32nd
respondent had been recorded in the analysis sheet as having been secured by the 32nd respondent. It wasallegedthatthis
was done by the 47th respondent in collaboration with other counting officers at the two counting centres despite theverbal
protest of the appellant.
Thus upon the foregoing, the appellant sought the following reliefs:
(a) a declaration that the election of the 32nd respondent was undue
(b) a declaration that the appellant was duly elected.
Additionally, the appellant sought the following reliefs:
(a) an order for inspection in terms of s.63(2) of the Parliamentary Elections -Act No.1 of1981permittinginspectionof
the preference votes of the SLFP candidates and inspection of the relevantanalysisSheets/Statementsofpreferencesand
counting of sameand,
(b) A security or recount of the preference votes of the SLFP candidates.
Proportional representation of thepeopleinParliamentwasintroducedtotheelectoralprocessbytheRepublican
Constitution of 1978. Article 99 provided for proportional representation with a single list of candidatesfromapartor
independent group. Election to the House was to be in order of priority of the names set out in thenominationpapers.The
14th Amendment to the Constitution replaced Article 99 which, whilst retaining the concept of proportional representationby
a party or independent group introduced the voter's choice in respect of a candidate of aparticularpartyorindependent
group, by a preference vote. The Parliamentary Elections (Amendment) Act No. 15of1988providedthemechanismsinthe
electoral process for effecting proportional representation in Parliament. The Third Schedule to thatActwasaccordingly
amended to enable a voter to express his preference in the choice of a candidate. The ThirdSchedulegivesdirectionsfor
the guidance of a voter in voting. These directions in fact spell out the provisions contained in Act No. 1 of1981dealing
with the poll and the counting of votes and the declaration of results contained in Parts 3 and4oftheenactment.More
specifically, the Third Schedule contains directions 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 vote which he may give to a recognised political partyorindependent
group and the manner in which he should mark the ballot paper(i.e.) by placing a cross (thus `X') on therighthandside
of the ballot paper opposite the name and symbol of the recognised political party or group for which he voteshemaythen
indicate his preferences for not more than 3 candidates from among the candidatesnominatedbysuchrecognisedpolitical
party or independent group by placing a cross (thus 'X') at the bottom of the ballot paper on the cage enclosingtheserial
number corresponding to the serial number assigned to each candidatethen fold it so as to show theofficialmarkonthe
reverse to the presiding officer and place the paper in the Ballot Box and quit the polling station. Thosedirectionsalso.
set out the circumstances under which a ballot paper should be declared void and not counted.

In respect of the first ground on which avoidance was sought (viz.) that 642 preference votes obtained by the appellantwere
not brought into the count for reasons given, it has been submitted on behalf of the appellant that even whereavoterhas
placed a mark such as an 'X' completely outside the cage, still, in order to ascertain the voter's intentiontheremustbe
an inspection of that ballot paper without which it is not possible for a Court to declare that amarkplacedoutsidethe
cage cannot be counted. It was urged, that the election Judge's finding that upon the averments in the petitionitselfthat
the mark was placed outside the cage his intention is not clear and such votes wererightlyrejectedforuncertainty,is
wrong in law. It was submitted that even when a cross (X) is marked completely outside a cage in an open area oftheballot
paper, still it could be taken into the count provided the intention of the voter to cast his vote foraparticularperson
was clear. Directions to voters contained in the Third Schedule were merely directory. Section 39(1) only requires a
ballot paper to be marked as near as may be in accordance with the directions. In support of his contentions Counsel cited
the following:
(1) Woodward v. Sarsons and Sadler (CA)(1)
"...votes marked outside the cage and in some instances by a line or mark other than a cross were heldvalidsinceupona
visual examination of the vote the Court was of the view there was a sufficient indication of thecandidate".Referringto
the corresponding provisions of the Ballot Act the Court held that the manner of voting wasdirectorybythatsubstantial
compliance was necessary.
(2) Pontdarwe (2)
Held that a mark placed outside the ruled compartment was a valid vote provided that the mark is in such a positionopposite
the name of the candidate as to leave no doubt.
(3) Law and Practice of Election Petitions by Pandit Nanak Chand, pp. 231-234.
It would be convenient to deal with this first ground of avoidance at this stage (i.e.) that the Election Judge was wrongin
determining that where a voter has placed a mark completely outside the cage, that itself indicated that that vote couldnot
be counted in favour of the petitioner because the voter's intention in such a situationwasnotclearandwasproperly
rejected.

The English Law provided rules and forms for the conduct of elections. The principles foundinthoseruleswereembodied
into the law of Ceylon in the course of the franchise being made available to the citizens of Ceylon. Non-observance ornon-
compliance with them may have led to voidance of the election as being contrary to the principle of anelectionbyballot.
We see therefore prior to the 1978 Constitution, a great similarity between the rules of the English Law and theSriLankan
Law in regard to how a voter should cast his ballot. The 1978 Constitution brought a change in the mode of representationof
the people in Parliament. As already mentioned, at first the concept of representation in Parliament being made proportional
to the number of votes cast for a political party or independent group in an electoral district as distinct from theearlier
process of a candidate being directly elected to a seat in Parliament by direct vote in a constituency wasintroduced.This
meant that the nuts and bolts process of indicating a voter's choice of party or groupdidnotneedtodepartfromthe
earlier established process of indicating a vote for an individual. Thus we see a similarity in the directionsgivenasto
how to vote - a similarity between the English Law and the Ceylon (Parliamentary Elections) Order inCouncil1946andthe
3rd Schedule to Act 1 of 1981 as it first stood spelling out theprocessofelectiontoParliamentinconformitywith
Chapter XIV of the Constitution . . . "A voter shall place a cross on the right hand side of the ballotpaperoppositethe
name and symbol of the recognised political party or independent group . . ." This is what had obtainedunder,theearlier
Law in Sri Lanka.

Form 'C' of the 1981 Act giving the form of the front of the ballot paper shows each political partyandsymbollistedin
separate compartments shown by ruled lines, each such compartment placed one below the other. In this situation themarkis
required to be placed on the right hand side opposite the name and symbol shown. In this way when a mark isplacedinline
with any one of the compartments containing names of parties and symbols or on the name or on thesymbolonecanenvisage
that the voter's intention has been sufficiently clearly expressed. That is what has happened in the English casescitedas
can be gleaned from the body of the judgments in these cases, to wit: in the case of Woodward v. Sarsons (supra) atp.747.
- Schedule 2 "Form of Ballot Paper" . . . the voter shall place a cross on the right hand sideoppositethenameofeach
candidate for whom he votes thus . . ." It is seen that the English rule is almost identical with our rule aswascontained
in s.42(7) and the 2nd Schedule .to the Ceylon (Parliamentary Elections) Order inCouncil1946andfollowedinthe3rd
Schedule to Act No. 1 of 1981. But we are dealing here with another situation, namely, indicating the voter's preferencefor
a candidate or candidates of his choice of the same political party or group for whom he has voted up toalimitofthree
brought in by the 14th Amendment to the 1978 Constitution. Such a process is not available in England. Thedirectionsgiven
in the 3rd Schedule as amended by Act No. 15 of 1988 in respect of marking the preference for a candidate or candidatesupto
a maximum of three is different to thedirectionsgivenformarkingthevoter'spreferenceforapoliticalpartyor
independent group. The difference is this - that when marking the preference for acandidateorcandidatesthevoteris
required to place his mark "on the cage enclosing the serial number corresponding totheserialnumberassignedtoeach
candidate". This direction by its very nature is mandatory. He is not permitted to place his mark beside a number in anopen
space on a side of the ballot paper for the obvious reason that that would lead to vagueness and uncertainty. Thenumberof
candidates taken together may be very large (in the instant case 36) and they aregivenserialnumbersandthoseserial
numbers are placed individually in cages in numerical order, for example from 1 - 50. Form 'C' shows that the number 1-50
are contained in 50 cages, there being 10 such cages on each line and we have fivelinesonebelowtheothereachline
containing 10 numbers in 10 cages. In such a situation the direction requires a mark to be placed on the cageenclosingthe
serial number and it is apparent that that had been intended to bring about a substantial degree of certaintyinindicating
the voter's choice. Section 39(1) which was relied upon by Counsel for the appellant and which states thatthevotershall
secretly mark the ballot paper as near as may be in accordance with the directions can only mean one thing inthiscontext:
that when a voter is marking his preference for a candidate that cross must be placed substantiallyonthecageenclosing
the serial number as there is no other way when several caged serial numbers are packed onenexttheotherofindicating
with reasonable certainty a preference for a particular cage. It is to bring asubstantialdegreeofcertaintyintothe
voting process that the 3rd Schedule in formulating directions has made this differenceastowherethemarkshouldbe
placed in the two situationsof voting for a party or group and later expressing a preference foraparticularindividual
of that party or group. For these reasons the Englishcasescitedhavenorelevanceandcouldbedistinguished.The
appellant has in his petition before the Election Judge marked as 'P1' a specimen of a ballot paper andthepetitionerhad
contended that marking a cross (X) to the right hand side ofcagedserialnumber(9)inanopenareainthemanner
demonstrated by him indicates that the voter intended to vote for number (9). There are in fact 8 other numbersfromNo.1
to No. 8 in eight cages on the same line. My own observation in regard to 'P1' and the mark placedbypetitioner'sCounsel
to the right of number 9 in an open area is that that mark placed in that manner makes that vote quite uncertain andsucha
vote should be rejected as void and not taken into account. The directions as to the manner in which a voter should markhis
preference of a candidate or candidates as contained in the 3rd Schedule appears to me to set out a uniform principlesoas
to make certain to the officers engaged in conducting a poll the intention of the elector. This Court hastointerpretthe
provisions of the statute so as to bring about substantial certainty to the processofdeterminingtheelector'schoice.
Learned Counsel for the 32nd respondent has submitted that the illustration contained in 'P1'submittedonbehalfofthe
appellant is a clear argument that a counting officer would be right in rejecting such a vote for uncertainty. I aminclined
to agree with this submission.

For the above reasons I hold that the decision of the Election Judge refusing inspection when it is stated specificallythat
the voter marked his cross completely outside the cages enclosing the serial numbers of candidates his intentionisnotat
all clear is correct. Such a vote should be rightly rejected for uncertainty and I uphold the decision of the ElectionJudge
on this point.

I now turn to the second ground relied upon by the appellant to strike down the election of the 32nd respondent(i.e.)that
in counting centres Nos. 13 and 15 about 1000 preferences in excess of what the 32nd respondentactuallysecuredhasbeen
recorded in the analysis sheet as having been secured by the 32nd respondent by or at the instance of the 47th respondentin
collaboration with other counting officers at these two counting centres. The honesty and integrity of those responsiblefor
counting the votes are challenged.
It raises the disquieting prospect of officersappointedcountingofficersunderandbyvirtueoftheParliamentary
Elections Act No. 1 of 1981 and chosen by the Returning Officer and entrusted with the responsibility of the propercounting
of votes at counting centres and officers appointed as assistants and clerks and other officers under theaforesaidlawto
assist such counting officers, have at two centers of this Electoral District, whilst beingengagedintheconductofa
Parliamentary General Election and whilst exercising statutory powers and duties in termsoftheelectorallawsofthis
country, conspired together to conduct this election in an unlawful manner to the detriment ofthepetitioner.Thisisa
serious allegation made against officers performing official acts who in ordinarycircumstancesmaybepresumedtohave
performed such official acts regularly.

One's attention is drawn to passages in the judgment of the Election Court in the case of Kaleel v.Themis(3).Therethe
Election Judge refers to an example given by the Acting Solicitor-General in the 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) thatanumber
of counting assistants, by reason of their association with the candidate whowasreturned,weresobiasedagainstthe
petitioner that they purposely counted the votes cast for the petitioner in favour of hisopponent".WhatMr.Tiruchelvan
imagined may happen the petitioner in the instant case says happened. This example, coupled with a narrow margin (asinthe
instant case) was considered by that Court (obiter) to suffice to order a recount.

In the petition and affidavit filed by the petitioner he states that at counting centre No. 13 he saw:
(i) the 47th respondent incorrectly recording preferences for the 32nd respondent
(ii) specifically witnessed the 47th respondent recording preferences over and above the actual preferences received by the
32nd respondent
(iii) the 47th respondent committed these irregularities with the help of several counting officers whose identities are
unknown to the petitioner
(iv) that the 47th respondent was a counting officer assigned to counting centre No. 15 and not to 13
(v) the petitioner reported these irregularities to the person in charge of centre No.13 but that persondidnottakeany
step in that regardThe petitioner continued to complain and protest and eventually the 47th respondent leftthatcounting
centre
(vi) thereafter the petitioner received information that the 47threspondentwascommittingthesameirregularitiesat
counting centre No.15
(vii) the petitioner immediately visited counting centre No.15withhisagentsandsawthe47threspondentrecording
preferences over and above the preferences actually received by the32ndrespondent.Heretoothe47threspondentwas
assisted in committing the irregularities by several officers whose identities were unknown to him
(viii) although he immediately reported the irregularities to the officer-in-charge of countingcentreNo.15thatofficer
took no notice
(ix) the petitioner states that altogether he saw the 47th respondent recording morethan1000preferencesforthe32nd
respondent which the 32nd respondent was not entitled to. These preferences over and above the actual member received bythe
32nd respondent were recorded at counting centres No. 13 and 15
(x) the petitioner reported these irregularities to the Returning Officer who did nothing
(xi) in consequence of these incorrect entries in the analysis sheet/statement of preferences the petitionerstateshewas
materially prejudiced and the result of the election materially affected.
It was the submission of the appellant's counsel that the above material affirmed tobythepetitionerinhisaffidavit
constituted material facts as required by s.98(c) sufficient to move the Election Court to proceed to take stepstoinspect
the votes under the powers contained in s.63(2) of the Parliamentary Elections Act No. 1 of 1981.ThepositionofCounsel
for the appellant was that the affidavit of the petitioner providedsufficientrequisitefactsthattheElectionCourt
needed to order an inspection and that it was not necessary for the petitioner to have appended tohispetitioncopiesof
the ballot paper account prepared by the presiding officer in terms of s.47(2) or a copy of the statement ofthenumberof
preferences indicated for a candidate in terms of s.53(7) (the absence of which documents was the subject of adversecomment
by Counsel for Respondents) as those documents would not contain material that would bear out the conductoftheofficials
now complained of. Counsel submitted that the present law provided for avoidance of an election on an electionpetitionfor
non-compliance with the provisions of the Act if it appears to the satisfaction of the Election Judge that theelectionwas
not conducted in accordance with the principles laid down in the Act - vide s.92(1)(b) - and that therefore theCourtcould
have the power to order an inspection and a recount.

In his original petition the petitioner prayed for a recount and/or scrutiny of the preference votes indicated by votersfor
the candidates of the Sri Lanka Freedom Party amongst other reliefs sought. In the argumentbeforethisCourtappellant's
Counsel restricted his prayer for a recount and not for a scrutiny in terms of s.110. Counsel argued that:
(1) s. 53(9) and s.112 of the Act did not stand in the way of the Court orderingarecount.Theprovisionsofs.53(9)
preventing the decision of a counting officer in regard to a ballot paper being questioned, itwassubmitted,wasonlya
fidelity clause to be applied during the progress of the actual count in order to preventthedisruptionofthecounting
process, but did not prevent a Court upon a petition from deciding whether there has been a miscountand thatthefinality
clause in s.112 preventing the decision of a counting officer rejecting a vote from being questioned was referable only toa
rejection of the entire ballot paper but did not contemplate the new situation created by the amending ActNo.15of1988
which also permitted a voter's choice of candidate to be indicated on the ballot paper. Therefore it was submitted s.112did
not operate as a finality clause to prevent a voter's preference indicated on the ballot paper frombeingexaminedbythe
Court.
(ii) a. That the provisions of s.92(1) (b) were wide enough to avoid the election of candidates on preference votesifthat
process of counting preference votes was not conducted in accordance with the principles of the Actwhichoccurrencewould
have materially affected the result
(ii) b. that the petitioner has claimed a declaration that the election of the 32nd respondent was undue
(ii) c. that in order to ascertain if the election of the 32nd respondent was undue consequent to the misconduct ofcounting
officers the Court has the power to order a recount even though specific provisions for such a step have not been enactedin
Part VII of the Act.

Learned Counsel for the respondents on the other hand submitted that a recount was notpossibleattheelectionpetition
stage as the Act only provides for recounts at the time of counting and that a recount in any eventwasameremechanical
process which would not assist the Court in deciding the issues raised. Counsel for the respondents alsoarguedthatthere
is no provision in the Act to make a declaration that an election is partiallyvoid.Counselsubmittedthats.92(1)was
concerned with the avoidance of an election in respect of an entire electoral district whereas thepetitionerconfinesthe
reliefs he seeks to setting aside the election of an individual member only.

It was held in the case of Rajapaksa v. Kadirgamanathan (4) thatarecountisorderedwheretherehasbeennocount
according to law. That case went on to distinguish between a "recount" and a "scrutiny". If infactmorethan1000votes
were dishonestly added to the total votes cast for the 32nd respondent by a counting officer then the declared result ofthe
election of the 32nd respondent would be undue. In my view the Court has inherent power to order arecountsoastogive
effect to the principles of the Act which is an overriding consideration. Natural justice demandstheinterventionofthe
Court and its principles will be called in aid. The provisions of s.53(9) are inapplicable asthatSectionappliestoan
ongoing count only. The provisions of s.112 are not relevant in the instant case as therejectionofballotpapersbya
counting officer has not been brought into question in the second ground urged for avoidance.Uponsuchcount,ifitis
shown that the petitioner has in fact obtained a majority over the 32nd respondent, then the Court is obligedtodealwith
it and give the provisions of s.92(1) which has remained unamended in the face of the introduction ofavoter'schoiceof
candidate a purposeful interpretation in accordance with the policy of thelegislatureinenactingtheamendedsections
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. Thuson
principle I take the view that -

(i) an order for a recount is one that is permissible and can be made by anElectionCourtinappropriatecircumstances,
and,
(ii) the Court has the power to declare that the return of the 32nd respondent was undue and thatthepetitionerwasduly
elected and ought to have been returned.
The petitioner-appellant as an interim step has prayed for an inspection of the votes as a prelude to a recount.

It is pertinent therefore to examine the machinery set up under the Act to give effecttoitsaims.TheCommissionerof
Elections, appointed in terms of Article 103 of the Constitution, appoints returning officers by notice intheGazettefor
each electoral district and persons to assist the returning officers in the performance of their duties -vides.6ofthe
Act. In practice these assisting officers are appointed counting officers by the returning officer to beinchargeofthe
counting of votes at counting centres - vide Article 49. Again s.29(1) permits facilities to be provided for the purposesof
an election in an electoral district. Section 29(1) (f) enables the returning officer to do "much acts and things asmaybe
necessary for effectively conducting the election". Part IV of the Act makes provision for the counting of votes. Section51
provides for political parties and groups to appoint counting agents to attend on the counting of votes.Noticeinwriting
stating names and addresses of persons so appointed shall be submitted to the counting officer before thecountcommences.
Any person whose name has not been so submitted has no right of admission to the counting centre. Section 52 dealswiththe
count. As a preliminary the counting officer in the presence of the counting agents has to show the ballot paperaccountto
them which contains all those matters enumerated in form 'k'. He has to open each ballot box, and counttheballotsinside
each box in the presence of the agents. There is no prohibition preventing (forbidding) a countingagentfromtakingdown
their own notes. Whilst counting, ballot papers have to be placed upwards (enabling agents to observethemandmaketheir
own notes if necessary).

The above duties cast on the returning officer thus opens the count to the scrutinyofinterestedpersonsfromitsvery
inception. Again, in deciding whether to allow a ballot paper to be taken to the count or rejected, the countingofficeris
required to show it to the counting agents and hear their views -videx.53(3)and(4)beforetakingadecision.A
necessary concomitant to all these provisions would be that the counting agent can make his observation or objectiontoany
particular vote being counted in any particular way and that those objections or observations berecordedbythecounting
officer. Thus in practice the counting officer must necessarily keep a journal (may be on loose leaves in a file cover orin
a register) which reflects the events of the -day, observations made and objections taken (unless notrecordedofconsent)
in the process of the count. It is only reasonable to infer therefore that the countingagentisnotahelplesspassive
spectator merely gazing at ballot papers. He has a role to playhe represents the candidate contesting the electionandhe
is there to ensure as far as possible a proper and fair election to the satisfaction of candidates.Ifheisdissatisfied
with any matter he has a clear duty to point it out and have an objection or opinion recorded and he has the right toreport
the matter to a higher authority if still dissatisfied and that too recorded. Thus there appears to be a cleardutyonhis
part to take an objection and have it journalised it anything improper is done during the count.

It is no argument, in seeking to excuse failure on the part of an agent to ask for a recount to say that itwouldnothave
served any purpose and that it would not have helped the petitioner as a recount is a mere mechanical process.Itwasheld
to be so in Kaleel v. Themis (3) in view of the provisions of s.49(5) oftheoldlaw(ParliamentaryElectionsOrderin
Council, Cap. 381) (s.112 of the present law) that the decision of the Returning Officer as to whether or not a ballotpaper
shall be rejected shall be final. But we are not concerned with such a situationhere.Thecomplaintisoneoffalsely
adding votes to someone not entitled to them. Such a vote can be checked and properly counted at a recount. So oneasksthe
question: What is this process of counting in the presence of and under the gaze of counting agents?Isitnottoensure
that everybody present has the opportunity of seeing each ballot paper and ensuring that it is added to those votes castfor
that particular party or person participating in the contest so as to procure a properresult.Thusifavotehasbeen
improperly counted, that can be pointed out and corrected or objection recorded. Such a record (and if the averments inthis
case are true) over a thousand such objections contemporaneously taken would be recorded in thejournalifnotcorrected.
Such a fact placed before the Court could be regarded as a material fact for the consideration of the Court.Again,another
opportunity is given to a counting agent to raise an objection or express an opinion in a s.53(7) situation - (ie) toobject
to the information given in the written statement of the counting officer communicated to the ReturningOfficergivingthe
number of preference votes given to each candidate. The counting agent can sign that statement asawitnessandcopyit.
Thus, if the statement contains inflated figures the counting agent could have protected and brought it to the notice ofthe
Returning Officer. Further provision is made by s.60(1) permitting a counting agent toinspectthesealsofthepackage
containing the said written statement under s.53(7) to ensure that nothing but the statement witnessed byhimisforwarded
to the returning officer. Sealing would also be done in the presence of the counting agent. So we have at severalstagesof
the count an election agent playing the role of the private eye scrutinizing theconductofthecount.Theseprovisions
provide the means to obtain agreement or acceptance of the count. A duty is cast on the counting officer topermitcounting
agents' access to what is being done. Counting agents are given an opportunity to witness the votesbeingcounted,compare
the official figures with their own figures and have any grievance recorded and heard before the declaration of results.
In the instant case however even the statement of preference votes cast foreachcandidatehasnotbeencopiedbythe
petitioner's counting agents and produced in Court. The question thus arises, taking all thesemattersintoconsideration,
whether the conduct of the petitioner's agent or agents wasduetoindifference,laziness,negligence,incompetenceor
something else. The matters complained of in the petitioner's affidavit have, therefore, to be approached with caution.

Assuming that the Court has jurisdiction in terms of s.92(1) (b) to interfere with the election of the32ndrespondentfor
non-compliance with relevant provisions of the Act if it appears that the election was not conducted in accordancewiththe
principles laid down in such provisions and that such non-compliance materially affected the result of the election,learned
Counsel for the 32nd respondent submitted that the Court should distinguish between allegations, material facts andevidence
in the case for the purpose of deciding whether an inspection should beordered.Section98(c)requiredthataconcise
statement of material facts be set out in the petition. Evidence is not required in thefirstinstance.Counselsubmitted
that the averments in the petition and affidavit contained only allegations but included no material facts.
As it is my view that the Election Judge hadjurisdictiontoproceedwiththiscaseonthegroundscontemplatedby
s.92(1)(b) it becomes necessary for this Courttoconsiderthecircumstanceswhichhavebeenplacedbeforeit.The
petitioner in the first instance asks for an inspection. Before the Court moves it must be satisfied that thereiscredible
material before it. The ordinary tests of common sense and prudence suggest that the particulars agitated bythepetitioner
by his affidavit contain only bare allegations ofmisconductbyofficialsassistingintheconductoftheelection.
Allegations alone are not sufficient to satisfy a Court that its jurisdiction ought to be exercised. It has been held thata
petition which alleged only that the petitioner claimed a majority of good and lawful voteswouldbeinsufficient-West
Bromwick (5) also vide Rogers on Election, 20th Edition, Vol II, P. 173. The petitioner hasnotclaimedinhisaffidavit
that he requested those responsible for the count to record his objections to the count. The conductofthepetitioneror
his agents in not making any contemporaneous recorded protest on the allegedmisconductdeprivesthepetitionerandhis
supporting affidavit of reliability on the fact of the complaint. Nor is there a complaint of bias against the petitioneror
in favour of the 32nd respondent. No acceptable factual circumstances are before the Courttosuggestthatofficialacts
were not properly done at this election. No interim order for inspection could therefore be made in the first instance.

The remaining question not raised before the Election Judge was whether an Election Court has power todismissanelection
petition in limine. This question has been decided by five Judges in the Presidential ElectionPetitionNo.1of1989-
Bandaranaike v. Premadasa (6). It was decided that the Court did have the power to dismiss an election petition in limineif
there was a failure to comply with a mandatory provision - quote - "Just as much asthepublichaveaninterestinthe
election petition there is also the principle that the election of a candidate should not be lightly interfered with".Other
relevant decisions are Samar Singh v. Kedar Nath (7) , and the case of Arthur Hussain v. RajivGandhi(8)Intheinstant
case I have come to the view that no acceptable factual circumstances have been placed before the Court for ittoorderan
inspection which is what is prayed for in the first instance. Section 98 of Act No. 1 of 1981 containsmandatoryprovisions
regarding the contents of an election petition. Section 98(c)requiresapetitiontocontain"aconcisestatementof
material facts on which the petitioner relies". But the petitioner hasfailedtoplacesuchmaterialfactsbeforethe
Election Judge, in his petition for relief. In the circumstances the Election Judge was correct inrefusinginspectionand
dismissing the petition in limine. I affirm the judgment of the Election Judge and dismiss this appeal with costs.

KULATUNGA, J.
The appellant (hereinafter referred to as the petitioner) and the 32nd respondent were among the 9candidatesnominatedby
the Sri Lanka Freedom Party (hereinafter referred to as the SLFP)tocontestParliamentaryElectionsfortheelectoral
district No. 13, Digamadulla held on 15.02.89. The said election was contested by 5 political parties. On thebasisofthe
votes obtained by the political parties only 4 of them became entitled to elect Members of Parliament. Ofthem,theUnited
National Party became entitled to elect 3 members whilst the remaining 3 political parties became entitled to elect 1member
each, making up a total of 6 members which that electoral district was entitled to elect.

On the basis of the preference votes accrued by the SLFP candidatesundertherelevantprovisionsoftheParliamentary
Elections Act No. 1 of 1981 as amended by Act No. 15 of 1988 read with Article 99 of theConstitutionthe32ndrespondent
was declared elected as the SLFP member by a majority of 76 votes over the petitioner.
The petitioner filed an election petition for the avoidanceofthesaidelectionfortheelectoraldistrictNo.13,
Digamadulla on the ground of non-compliance with the provisions of the Parliamentary Elections Act No. 1 of 1981asamended
relating to elections as the said election was not conducted in accordance with the principles laid down insuchprovisions
which non-compliance materially affected the result of the said election. Section 92(1)(b)oftheActprovidesforsuch
avoidance.

In his petition the petitioner prayed for declarations and orders to the following effect.
(a) a declaration that the impugned election is void to the extent that the counting/recording ofpreferencesindicatedby
voters for the SLFP candidates had not been in compliance with the provisions oftheParliamentaryElectionsActandin
accordance with the principles laid down in such provisions
(b) a declaration that the return of the 32nd respondent as a Member of Parliament was undueand
(c) a declaration that the petitioner was duly elected and ought to have been returned as a Member of Parliament at the said
election
(d) an order under Section 63(2) of the Parliamentary Elections Act to inspect the ballot papers containingpreferencesfor
the SLFP candidates and of the relevant analysis sheets/statements of preferences and to copy the sameand
(e) an order for a recount/scrutiny of the preferences indicated by voters for the SLFP candidates, at the said elections.
The petitioner joined, in addition to the 32nd respondent, the Commissioner ofElections(1strespondent),TheReturning
Officer (2nd respondent) and one Tikiri Banda who officiated as a Counting Officer (47th respondent).Heclaimsnorelief
against any of the other candidates all of whom he joined as parties.
The material facts on which the petitioner relies are :
(a) The failure to count a total of 642 preferences which he claims to have accrued at counting centres 1, 2, 3, 4, 5, 6,13
and 15 on the ground that the cross by which the voters had indicated their preference had been placed opposite No. 9 inthe
ballot papers, which was the serial number allocated to him and not on the cage enclosing the serial number.

The petitioner states that the voters who so indicated their preferences on 642 ballot papershadclearlyindicatedtheir
preference for the petitioner.
(b) In counting centres Nos. 13 and 15 about 1000 preferences over and above the preferences actuallysecuredbythe32nd
respondent have been recordedintheanalysissheet/statementofpreferencesashavingbeensecuredbyhim.This
irregularity was committed by the 47th respondent with the assistanceofseveralotherofficersofwhoseidentitythe
appellant is not aware.
In his affidavit accompanying the petition, the petitioner states that he with his agentsvisitedcountingcentreNo.13
when the preferences secured by the SLFP candidates were being counted.

He saw the 47th respondent (who was the counting officer assigned to counting centre No. 15) recordingpreferencesforthe
32nd respondent over and above what he had actually secured and preparing the analysis sheets/statementsrelatingtosame.
The petitioner protested to the officer-in-charge of the counting centre No.13 but the latter took no steps inthatregard
when the petitioner continued to protest, the 47th respondentleftthatcountingcentre.Thepetitionerthenreceived
information that the 47th respondent was committingthesameirregularityatcountingcentreNo.15.Thepetitioner
immediately visited counting centre No.15 andobservedthe47threspondentrecordingpreferencesoverandabovethe
preferences actually received by the 32nd respondent, with the assistance of other officers. He reported ittotheofficer
in charge of that counting centre, but he too did not take any steps in that regard.

Preliminary objections were filed on behalf of the 1st and 32nd respondents. Theseobjectionswerefixedforinquiryat
which stage the Counsel for the petitioner moved that the matter relating to the inspection of ballot papersandstatements
also be considered as a preliminary matter. This was allowed by the Election Judge. This was followed by a motiononbehalf
of the petitioner applying for inspection, under Section 63(2) of Act No. 1 of 1981 as amended, of the ballot papers andthe
written statements of the number of votes and references given in favour of the SLFPcandidatesattheelectionforthe
electoral district No. 13 Digamadulla. It is relevant to note that this motion makes no reference to the"relevantanalysis
sheets" referred to in the petition. The reason for this omission is obvious namely, that the power of the Court to orderan
inspection under Section 63(2) does not extend to such analysis sheets not being documents whichthereturningofficeris
required to retain under Section 63(1).
At the inquiry which followed Counsel for the 1st, 2nd and 47th respondents and the Counselforthe32ndrespondentwere
heard in support of the objections and the petitioner's Counsel replied.Thiswasfollowedbywrittensubmissions.The
respondents applied to have the petition dismissed in limine on the ground thatthepetitioneris,onthefaceofthe
allegations set out in the petition, not entitled to any relief. Their position may be summarized under two heads.
(a) The petitioner had not specified the section under which he sought relief. If he is seeking to have the electionofthe
32nd respondent declared undue and to obtain a declaration that he was duly elected, he is not entitled to such relief ashe
failed to plead the relevant grounds under Section 92(2) of Act No. 1 of 1981. His case is really under Section92(1)(b)in
which event the law permits a declaration that the election for the entire districtisvoidbutthepetitionerhasnot
sought such relief, instead he is seeking to avoid the election of the 32ndrespondenti.e.apartialavoidanceofthe
result which he is not entitled to under Section 92(1).

(b) As regards the petitioner's allegations inrespectofthepreferencevotes,therespondentsarguethatthe642
preferences referred to were rightly rejected at the counting as the intention of the voter on each preference is not atall
clear. The Election Judge cannot reverse the decision of the counting officerinviewofthefinalityprovisionsunder
Section 53(9) and the bar in section 112. If he was not satisfiedabouttherejectionofthesaidpreferencesorthe
recording of the 1000 preferences referred to in the petition his counting agents wereentitledtoobtaincopiesofthe
statements of preferences, under Section 55(7) and to two recounts at each of the relevant countingcentres,underSection
53(8). Admittedly the counting agents or the petitioner had not so applied for copies of statements or a for arecount and
the petitioner is not entitled to a recount which under the law as it stands isonlyavailableunderSection53(8).The
relief of scrutiny which was available under Section 80(c) of the Ceylon (Parliamentary Elections)OrderinCouncil(Cap.
381) is not provided for under the corresponding Section 96 of Act No. 1 of 1981the petition is speculative andshouldbe
dismissed in limine as the petitioner has not placed adequate material before Court.

On the first objections the petitioner's counselcontendedthattheCourtshouldgivetoSection92(1)apurposive
interrelation and held that the declaration provided by that section is not limited to a total avoidance of theelectionin
any electoral district but extends to a claim of partial avoidance of the result based on an allegation of an abuserelating
to the counting of preference votes in favour of a candidate.

On the second objection, the petitioner's Counsel contended that in view of the requirement under Section 30(1) that avoter
shall mark the ballot paper as near as may be in accordance with the direction given for the guidance of voters in thethird
Schedule to the Act, the direction in the Schedule to indicate the preference by placing a cross on thecageenclosingthe
serial number assigned to the candidate is not mandatory but directoryas such crosses placed "in the blank space"opposite
number 9 in the ballot paper (a specimen of which has been marked 1 R1) have to be considered consequentlytheCourtmay
inspect the 642 ballot papers referred to in the petition. It was also submitted that the finalityunderSection53(9)is
limited to the course of the election and would not preclude a challenge to the counting of preference votes inanelection
petitionand that the ouster under section 112 covers the rejection of a ballot paper and not therejectionofpreference
votesthat this is clear from the fact that the Act No. 15 of 1986 which amended Act No. 1 of1981toincludeprovisions
relating to preference votes did not effect any amendments to Section 112 barring the Court from reviewing therejectionof
preference votes. As regards the 1000 preference votes alleged to have been irregularly recordedforthe32ndrespondent,
the petitioner's Counsel submits that Section 53(9) and 112 have no application to the relevant ballot papers andtheCourt
should hear that allegation and allow the inspection sought even though the petitioner had failedtoapplyforcopiesof
statements of preferences under Section 53(7) or for any recount under Section 53(8)that the righttoarecountinthe
course of an election petition has not been taken away by the provisions of Act No. 1 of 1981. Counselcitedthedecisions
in Kuruppu v. Hettiaratchy (8) and Kaleel v. Themis (3) on the power of the Court to order an inspection or a recount.
The Election Judge rejected the first legal objection. He held that Section 92(1) is wideenoughtomakeitpossibleto
declare that the election for the electoral district of Digamadulla is void to the extent that the countingortherecount
of the preference votes had not been in compliance with the Act and its principles, and thereforethereturnofthe32nd
respondent was undue and that the petitioner should bedeclareddulyelected.Althoughthislegalobjectionhasbeen
reiterated in the submissions for the respondents,atthehearingoftheappealbeforeuslearnedCounselforthe
respondents did not advert to it. I am of the view that the finding of the Election Judge on this issue is correct.However,
the Election Judge proceeded to consider the other submissions of the respondents and held that on the face ofthepetition
and on the averments contained therein, the petitioner has not made out that he is entitled to anyofthereliefshehas
claimed. He upheld the preliminary objections on that basis and dismissed the petition. The reasonsforsodismissingthe
petition given in the judgment show that the Election Judge has substantially adoptedthesubmissionsoftherespondents
which I have summarized earlier in this judgment.

Thus, the learned Judge held that the intention of the voters on the 642 ballot papers relied upon by the petitionerisnot
at all clear and the preference votes thereon were void for uncertainty and were thereforerightlyrejectedunderSection
53(7)(c) that such decision was final and conclusive under Section 53(9) and cannot be questioned in an election petitionin
view of Section 112.

The learned Judge next considered the alleged irregularity pertaining to the recording of about 1000 preferencevotesalong
with the prayer for the inspection of the relevant ballot papers and statements of preferences and prayer forarecountof
the SLFP votes. The learned Judge repeats without comment the fact that Section 96 of the present Act does not provide fora
scrutiny. He accepts the availability of provision in Section 63(2) for an inspection, does notadoptthesubmissionthat
there is no right to a recount except under Section 53(8) but proceeds to hold on thestrengthofKaleel'scasethatno
recount can be allowed as the petitioner or his agents had failed to apply for it at the counting. He alsoheldagainstan
inspection under Section 63(2) in view of the failure to apply for copies of statements of preferences orforrecounts.He
thought that the petition had been filed on insufficient material and the petitioner is now seeking to use Section63(2)to
obtain material to support his case and ruled that this is not permissible.

Mr. Faiz Musthapha, PC strongly criticized the learned Judge's reasoning and confidently submitted that itcontainsseveral
misdirections on the law and that the learned Judge erred in dismissing the petition in limine particularlyforthereason
that the respondents had not joined issue on the allegations levelled in respect oftheirregularitypertainingtoabout
1000 preference votes which allegations had been supported by an affidavit. Before I consider these submissions,Iwishto
determine an issue which I myself raised during the argument namely whether the dismissal of thepetitioncanbedefended
with reference to Section 98(c) of Act No. 1 of 1981 on the ground that the petition does not contain a concise statementof
material facts on which the petitioner relies.

On reflection, I am satisfied that the petition cannot be thrown out for non-compliance with Section 98(c) as thepetitioner
has set out therein a concise statement of material facts onwhichherelies.InKaleelv.Themis(supra)wherethe
petitioner prayed for a declaration that the 1st respondent's election was undue and for a declarationthatthepetitioner
was duly elected and ought to have been returned as the 3rd member for Colombo Central, all that he pleadedwasthatthere
was a miscount of the votes. Pulle, J. said that one of the possible meanings of this allegation was that votes cast forthe
1st respondent were counted in favour of the petitioner but in the context the word "miscount" would amounttoastatement
that votes cast for the petitioner had been counted as votes for the 1st respondent or for one or more of the otheropposing
candidates. On an objection that the position was on the face of it bad Pulle, J. said (58 NLR 396 at 402) (3).
"I do not think it would be fair to throw out a petition because an examination of its language, asstrictlyasonewould
examine the penal provisions of a statute, reveals matters which have no bearing on the reliefs claimed.Thereisimplicit
in paragraph 5 much that is germane to the relief claimed,namely,thatvotesthatshouldhavebeencountedforthe
petitioner were counted for his rivals".

In the instant case, there is a more specific statement of the facts relied upon and hence the petitioncannotberejected
on the ground that it has been filed on insufficient material.
In Kaleel's case, after deciding to entertain the petition, Pulle, J. proceeded to consider thepetitioner'sprayerfora
recount which was vital to the further prosecution of the petition. A recount wasrefused.InsoexercisingtheCourt's
discretion Pulle, J. took into consideration the fact that the honesty, care and competenceofthoseresponsibleforthe
counting were not challenged and the failure of the petitioner to avail himself of the right of seeking for arecountunder
Section 48(7) of the Ceylon (Parliamentary Elections) Order in Council (Cap. 381) from whichtheCourtpresumedthat"he
(the petitioner) was not then dissatisfied with the counting".

In the instant case, the petitioner has prayed for an inspection of the ballot papers and statements of preferences forSLFP
candidates and a recount which in my view are vital forthefurtherprosecutionofthepetition.Theapplicationfor
inspection was itself argued as a preliminary matter at the requestofthepetitioner'sCounselandthelearnedJudge
refused it. I am of the view that if such refusal is right, the application for a recount cannot be pursued, inwhichevent
the petition has to be dismissed. I shall therefore proceed to consider the question whether inthecircumstancesofthis
case the refusal of the application for inspection is right.

I agree with the submission of Mr. Faiz Musthapa, PC that the finality provided by Section53(9)tothedecisionofthe
counting officer as to any question arising in respect of any ballot paper applies only to the process of countinganddoes
not preclude a challenge by election petition to the recording of preferencesI also agree that theexclusionofjudicial
review of a decision whether or not a ballot paper shall be rejected doesnotprecludethepowertoreviewadecision
regarding a preference vote. I hold that the opinion of the Election Judge to the contrary appearing inhisjudgmentwhere
he considers the allegation relating to 642 preference votes constitutes a misdirection on the law.AlthoughMr.Musthapha
complains that even the consideration of the alleged irregularity pertaining to 1000 votes is vitiated by suchmisdirection,
the judgment does not bear out this submission. On the other hand, the Election Judge considering that allegation hasstated
that the operation of the sections under reference "is subject to the overriding provisions of Section92(2)(anerroneous
reference to Section 92(1)) which states that an election for anydistrictcanbeavoidedfornon-compliancewiththe
provisions of the Act and such noncompliance has affected the result of the election".

The Election Judge's decision refusing the inspection pertaining to 642preferencevotesisprimarilyreferabletohis
opinion that such preferences were void for uncertainty and were therefore rightly rejected. Mr. Musthapha, PCsubmitsthat
the Court could not have decided the question without an inspection whichwouldhaverevealeddifferentcombinationsof
marks including the case of voters who would have indicated two out of the three preferences by placing a cross onthecage
enclosing the relevant serial numbers and the third by placing the cross on the spaceoppositenumber9assignedtothe
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 him to indicate his preference by placing the cross in that cage. Iam
unable to agree with these submissions, for the following reasons.

(a) Where a voter marks two out of his three preferences by placing the cross onthecageenclosingtherelevantserial
number and third by placing the cross outside the cage enclosing number 9, the preference claimed by the petitionerismore
uncertain than in the case of a voter who exercises only one preference by placingthecrossoutsidethecageenclosing
serial number 9. In the latter case the extent of the deviation from the guidelines contained in the ThirdScheduletothe
Act are such as cannot be permitted under Section 39(1).
Any deviation, if it is to be valid, should be rational in all the circumstances. The intention of the votercannotbethe
sole criterion of such validity. A mark placed outside the cage enclosing number 9 would not be rational.Ifsuchmarkis
claimable, then the petitioner will have an advantage over the other candidates he can onlyclaimapreferenceifitis
placed on the relevant cage.
(b) I do not accept the contention that there is a cage adjacent to number 9 resembling the cage opposite the partysymbols.
The specimen ballot paper 1R1 strictly conforms to the specimen appearing as Form C in the First Schedule to theActexcept
that in Form C provision for 10 candidates, has been included whereas 1131 has provisiononlyfor9candidatesi.e.the
number of members that the electoral district of Digamadulla is entitled to elect. The deletion of the cage enclosingnumber
10 has resulted in the presence of a space opposite number 9 but the ballot paper itself strictly conforms to lawandthere
is no such cage as alleged which would excuse a voter being misled.
Accordingly, I hold that the decision of the Election Judge refusing theinspectionappliedforbythepetitionerwith
reference to the said 642 voter preferences is right and constitutes the only decision the Judge could reach in theexercise
of his discretion on the facts before him.

The application for inspection pertaining to the alleged irregularity relating to 1000 voter preferences was refusedasthe
petitioner had not availed himself of the right to obtain copiesofstatementsunderSection53(7)andrecountsunder
Section 53(8). The learned Judge relied on the decision in Kaleel's case(supra).HetooktheviewthattheActmade
detailed provision for counting including provision givingtherighttothepetitioner'sagentstoobtaincopiesof
statements of the votes for the recognized parties and preference votes for candidates. The right to obtaincopiesofsuch
statement was not available under the Order in Council (Cap. 381). The Judge expressed the view that if the47threspondent
committed the alleged irregularities the petitioner or his agents could have asked for a recount then and thereandfurther
taken copies of the figures and furnished them to Courtbut he has not done any of thesethings.TheJudgeproceededto
refuse the inspection sought in that context and on the ground that the petition has been filed on insufficient materialand
the recourse to Section 63(2) was merely an effort to cure this deficiencey.

I think that the instant case is different from Kaleel's case. Firstly, in Kaleel's case the honesty, care and competenceof
the counting officers were not challenged. In this case, a serious irregularity which raise's the issue of the bona fidesof
the 47th respondent and other officers has been alleged. Secondly, the kind of recount which a candidate was obligedtoask
for in Kaleel's case was different from the recount provided for under Section 53(8).Underthepreviouslaw,arecount
meant the verification of the final result based on the first post past the system of voting. Atpresent,recountscanbe
applied for at such counting centre whether in relation to the votes for arecognizedpoliticalpartyorthepreference
votes for a candidate. The effect of such recounts would be known only after the final count bytheReturningOfficer.In
this context, the legal implications of the failure to ask for a recount cannot be the same asundertheprevioussystem,
particularly at the General Election in question which was the first such election held under thenewlaw.Thepetitioner
states that he repeatedly protested and complained to the officer-in-charge of counting centres Nos. 13 and15againstthe
irregularities committed by the 47th respondent but that the officer took no steps. In the context of the newelectionlaw,
the need to ask for a recount of preferences at two counting centres may not strike the mind of a candidate asmuchasthe
need to lodge a complaint against an irregularity in the counting of preferences. The failure to obtain copies ofstatements
of preferences is also not of such relevance because these statements would only contain the totalsofpreferencescounted
for the candidates. The petitioner is challenging such totals. Such statements themselves may not beofanyassistancein
adjudicating upon such challengebut an inspection of the ballot papers may assist the Court.

For the foregoing reasons, I hold that the Election Judge was wrong in refusing the inspection sought relating to about1000
voter preferences. The decisions in Kaleel's case (supra) and in Kuruppu v.Hettiaratchy(9)showthatourCourtshave
considered applications for inspection and recounts with the indulgence appropriate to a fairhearingofthepetition.I
allow the appeal and set aside the judgment appealed from so far as it relates totheallegedirregularitypertainingto
about 1000 voter preferences. The Election Judge is directed to allowtheinspectionsoughtinthatregardlimitedto
counting centres Nos. 13 and 15 and to proceed with the trial of the petition or to dismiss it, whichever isappropriateon
the result of the inspection. As the petitioner has succeeded partly, I allow him half the costs of this appeal.

H. A. G. DE SILVA, J.
I have had the advantage of reading the judgments prepared by my brothers BandaranayakeandKulatunga,JJ.Onthefirst
matter that comes up for consideration, vizwhether the 642 preferencevotesobtainedbythePetitioner-Appellantwere
rightly not brought into account on the ground that the cross (X) indicating the preference,hadbeenplacedoutsidethe
cage containing the numeral 9, the number assigned to thepetitioner-appellant,Iaminagreementwiththeconclusion
arrived at by them that those preferences were rightly rejected for uncertainty and vagueness and the reasonsgivenbyfor
such a conclusion.
On the second question however, as to whether an order should be issued for inspection intermsofSection63(2)ofthe
Parliamentary Elections Act No. 1 of 1981 of the preference votes of the S.L.F.P. candidates, as wellasaninspectionof
the relevant analysis sheets/statements of preferences and the cage of the same andascrutiny/recountofthepreference
votes of the S.L.F.P. candidates. I am in agreement with the views expressed by my brother Bandaranayake, J.intheresult
that I too would dismiss the appeal with costs.
Appeal dismissed.


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